                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00373-CR

ANTHONY MARK GARCIA,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                           From the 220th District Court
                              Bosque County, Texas
                             Trial Court No. CR 14712


                           MEMORANDUM OPINION


      Anthony Mark Garcia was convicted of aggravated sexual assault of a child and

sentenced to 11 years in prison. See TEX. PENAL CODE ANN. § 22.011(a)(2) (West 2011).

Because the trial court did not err in overruling Garcia’s Batson challenge and Garcia’s

constitutional challenge was not preserved, the trial court’s judgment is affirmed.

      Garcia contends in his first issue that the trial court erred in denying his Batson

challenge to the State's use of peremptory strikes against three jurors. See Batson v.

Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986).   A Batson challenge to a
peremptory strike consists of three steps: 1) the opponent of the strike must establish a

prima facie showing of racial discrimination; 2) the proponent of the strike must

articulate a race-neutral explanation; and 3) the trial court must decide whether the

opponent has proved purposeful racial discrimination. See Purkett v. Elem, 514 U.S. 765,

767, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995); Young v. State, 283 S.W.3d 854, 866 (Tex.

Crim. App. 2009). Once the State proffers race-neutral explanations for its peremptory

strikes, the burden is on the defendant to convince the trial court that the prosecution's

reasons were not race-neutral. Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999).

Thus, the burden of production shifts from the defendant in step one to the State in step

two; but the burden of persuasion never shifts from the defendant. Id. Our standard of

review is whether the trial court’s ruling was clearly erroneous. Grant v. State, 325

S.W.3d 655, 657 (Tex. Crim. App. 2010).

          After Garcia made his Batson challenge1 the State proffered the following race

neutral reasons: 1) Juror 2 originally indicated that she could not follow the law; 2)

Juror 12 was too young, was not a family man, and did not have kids; and 3) Juror 20

was single, had no kids, was a nurse and thus might require medical evidence when

none would be presented, and the State had prosecuted several individuals with the

same last name. Garcia did not contend in court that these reasons given were not




1   We assume without deciding that Garcia made a prima facie showing of racial discrimination.

Garcia v. State                                                                                   Page 2
“race-neutral.” Rather, Garcia contended that the strikes were “impermissible” because

the State did not question the prospective jurors about the State’s concerns.

        In a similar situation, the Court of Criminal Appeals interpreted United States

Supreme Court precedent as not requiring such further inquiry by the State. See Grant

v. State, 325 S.W.3d 655, 661 (Tex. Crim. App. 2010). That interpretation is binding on

this Court; and therefore, the State was not required to inquire any further to validate or

invalidate, or confirm or refute the basis stated for its own peremptory strikes.

Accordingly, we cannot say the trial court’s decision in overruling Garcia’s Batson

challenge was clearly erroneous. Garcia’s first issue is overruled.

        In his second issue, Garcia contends that section 22.011(a)(2) of the Texas Penal

Code is unconstitutional on its face. Constitutional challenges to a statute generally are

forfeited by failure to object at trial. Curry v. State, 910 S.W.2d 490, 496 & n.2 (Tex. Crim.

App. 1995); see also Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). The

constitutionality of a statute as applied must be raised in the trial court to preserve

error. Curry, 910 S.W.2d at 496; see Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim.

App. 2008) (noting the "well-established requirement that appellant must preserve an

'as applied' constitutional challenge by raising it at trial"). Further, a defendant may not

raise for the first time on appeal a facial challenge to the constitutionality of a statute.

Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); Davis v. State, No. 10-12-

00025-CR, 2012 Tex. App. LEXIS 10578 (Tex. App.—Waco Dec. 20, 2012, pet. ref’d) (not


Garcia v. State                                                                         Page 3
designated for publication). Garcia did not assert any constitutional infirmity with the

statute before the trial court.   Accordingly, we hold that Garcia has forfeited this

complaint. See TEX. R. APP. P. 33.1(a); Karenev, 281 S.W.3d at 434; Flores, 245 S.W.3d at

437 n.14; Curry, 910 S.W.2d at 496. We overrule Garcia’s second issue.

        Having overruled both issues, we affirm the trial court’s judgment.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed January 29, 2015
Do not publish
[CR25]




Garcia v. State                                                                    Page 4
