Opinion filed December 19, 2014




                                        In The


        Eleventh Court of Appeals
                                      ___________

                              No. 11-12-00280-CR
                                      ___________

                      ALEXANDER RUBIO, Appellant
                                          V.
                      THE STATE OF TEXAS, Appellee


                      On Appeal from the 104th District Court
                                  Taylor County, Texas
                           Trial Court Cause No. 18028B


                      MEMORANDUM OPINION
      Alexander Rubio entered an open plea of “no contest” to the charge of
sexual assault of a child. See TEX. PENAL CODE ANN. § 22.011(a)(2) (West 2011).
The State offered into evidence a written stipulation of evidence wherein Appellant
judicially confessed to committing the charged offense.           The trial court
subsequently convicted Appellant and assessed his punishment at confinement for
sixteen years in the Institutional Division of the Texas Department of Criminal
Justice. We affirm.
                                     Background
      Appellant was charged with the second-degree felony offense of sexual
assault of a child under Section 22.011 of the Penal Code. Section 22.011 provides
in relevant part that a person commits the offense of sexual assault of a child if the
person intentionally or knowingly causes the penetration of the sexual organ of a
child by any means.         PENAL § 22.011(a)(2)(A).         A child is defined in
Section 22.011 as a person younger than seventeen years of age.                       Id.
§ 22.011(c)(1).
                                   Issue on Appeal
      In   a   single   issue,   Appellant     challenges   the   constitutionality   of
Section 22.011(a)(2) under the Due Process Clause of the Fourteenth Amendment
to the United States Constitution and the due course of law provision of the Texas
Constitution. See U.S. CONST. amends. V, XIV, § 1; TEX. CONST. art. I, § 19.
Appellant contends that Section 22.011(a)(2) is unconstitutional (1) because it does
not contain a mens rea element that would require the State to prove that a
defendant knew the victim was under seventeen years of age and (2) because it
does not allow a defendant to raise an affirmative defense based on the defendant’s
reasonable belief that a child victim is not younger than seventeen years of age.
                                       Analysis
      Appellant lodges a “facial” challenge to the constitutionality of
Section 22.011. A facial challenge asserts that a statute, by its terms, always
operates unconstitutionally. Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex.
Crim. App. 2006). An “as-applied” challenge to the constitutionality of a statute
asserts that a statute, although generally constitutional, operates unconstitutionally
as to the claimant because of his particular circumstances. Id. at 536 n.3. Facial
and as-applied challenges to the constitutionality of statutes are forfeited if they are
not raised in the trial court. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim.
                                           2
App. 2009) (facial challenge); Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim.
App. 1995) (as-applied challenge).                    Appellant did not challenge the
constitutionality of Section 22.011(a)(2) in the trial court. Therefore, Appellant
did not preserve the issue for appellate review. See TEX. R. APP. P. 33.1; Karenev,
281 S.W.3d at 434. Appellant’s sole issue is overruled.
       We note that courts have upheld the constitutionality of Section 22.011(a)(2)
and Section 22.021 of the Penal Code1 when faced with arguments that were
similar to those raised by Appellant in this appeal. Fleming v. State, 376 S.W.3d
854, 857–62 (Tex. App.—Fort Worth 2012), aff’d, No. PD-1250-12, 2014 Tex.
Crim. App. Lexis 879 (Tex. Crim. App. June 18, 2014), petition for cert. filed, 83
U.S.L.W. 3440 (U.S. Sept. 12, 2014) (No. 14-559) (Section 22.021)2; Byrne v.
State, 358 S.W.3d 745, 748–51 (Tex. App.—San Antonio 2011, no pet.) (Section
22.011(a)(2)(A)).         Had Appellant preserved his issue for review, we would
conclude, based on the reasoning of these courts, that Section 22.011(a)(2) is not
unconstitutional.
                                       This Court’s Ruling
       We affirm the judgment of the trial court.




December 19, 2014                                             JOHN M. BAILEY
Do not publish. See TEX. R. APP. P. 47.2(b).                  JUSTICE
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

       1
           TEX. PENAL CODE ANN. § 22.021 (West Supp. 2014).
       2
         On June 18, 2014, the Court of Criminals Appeals affirmed the opinion of the Fort Worth Court
of Appeals in Fleming v. State. The Court of Criminal Appeals issued its mandate in Fleming on
October 14, 2014. However, the Court of Criminal Appeals subsequently withdrew its mandate on
November 3, 2014. Based upon that withdrawal, West Publishing has withdrawn the court’s opinion
from both Westlaw and West’s bound volume. The opinion of the Court of Criminal Appeals remains on
Lexis as of the date of this opinion.
                                                  3
