Brian Garza v. State

• Court: Court of Appeals of Texas
• Decided: February 11, 2009
• Docket: 07-09-00025-CR
• Status: Published

Opinion

NO. 07-09-0025-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

FEBRUARY 11, 2009

______________________________

BRIAN GARZA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 426TH DISTRICT COURT OF BELL COUNTY;

NO. 63,030; HONORABLE FANCY H. JEZEK, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

ABATEMENT AND REMAND

          Following a plea of not guilty, Appellant, Brian Garza, was convicted by a jury of evading arrest with a motor vehicle, with an affirmative finding on use of a deadly weapon. Punishment was assessed at seventeen years confinement. The clerk’s record was filed on January 23, 2009. Upon reviewing the clerk’s record, it came to this Court’s attention that the Trial Court’s Certification of Defendant’s Right of Appeal, appearing at page 72 of the Clerk’s Record, is not signed by Appellant as required by Rule 25.2(d) of the Texas Rules of Appellate Procedure.

          Consequently, we abate this appeal and remand this cause to the trial court for further proceedings. Upon remand, the trial court shall utilize whatever means necessary to secure a properly signed Trial Court’s Certification of Defendant’s Right of Appeal in compliance with Rule 25.2(d). Once properly completed and executed, the certification shall be included in a supplemental clerk’s record. See Tex. R. App. P. 34.5(c)(2). The trial court shall cause this supplemental clerk's record to be filed with the Clerk of this Court by March 30, 2009. This order constitutes notice to all parties, pursuant to Rule 37.1 of the Texas Rules of Appellate Procedure, of the defective certification. If a supplemental clerk’s record containing a proper certification is not filed in accordance with this order, this matter will be referred to the Court for dismissal. See Tex. R. App. P. 25.2(d).

           It is so ordered.

                                                                                  Per Curiam

Do not publish.

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NO. 07-10-0283-CR

 

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JANUARY 31, 2011

_____________________________

TERESO ALMAGUER A/K/A TERESO ALMAGUER-JUAREZ,  

                                                                                    Appellant

THE STATE OF TEXAS, 

                                                                                      Appellee

FROM THE 355TH DISTRICT COURT OF HOOD COUNTY;

NO. CR11345; HONORABLE RALPH H. WALTON JR., PRESIDING

Memorandum Opinion

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

            Appellant Tereso Almaguer was convicted of continuous sexual abuse of his stepdaughter and his stepniece.  On appeal, he argues that §21.02 of the Penal Code is unconstitutional because it allows for a conviction upon less than a unanimous verdict.  We affirm the judgment.

            The subject statute provides that an offense is committed if, during a period of thirty or more days, a person commits two or more acts of sexual abuse against a child regardless of whether they are committed against one or more victims.  Tex. Penal Code Ann. §21.02(b) (Vernon  Supp. 2010).  A jury is not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed.   Id. §21.02(d).   It must only agree that during a period of thirty or more days, the defendant committed two or more acts of sexual abuse.  Id.[1]    

            Appellant did not bring the alleged unconstitutionality of the statute to the trial court’s attention.  Challenges to the constitutionality of a statute may not be raised for the first time on appeal.  Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (stating that a facial challenge may not be raised for the first time on appeal); Curry v. State, 910 S.W.2d 490, 496  (Tex. Crim. App. 1995) (stating that an “as applied” challenge may not be raised for the first time on appeal). 

However, appellant argues that fundamental error is involved.  Fundamental error, which may be raised for the first time on appeal, is a violation of rights that are waivable only or a denial of absolute systemic requirements.  Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).  Waivable rights include errors regarding the  assistance of counsel, trial by jury, and the right of appointed counsel to have ten days trial preparation.  Saldano v. State, 70 S.W.3d 873, 888-89 (Tex. Crim. App. 2002).  Systemic requirements include errors regarding jurisdiction of the person, subject matter jurisdiction, a penal statute’s compliance with the separation of powers clause of the state constitution, the constitutional prohibition against ex post facto laws, the constitutional requirement that the district court conduct proceedings at the county seat, and constitutional restraints on the comments of a judge.  Id. at 888-89.  Appellant cites no authority for his proposition that the provisions of this statute violate a waivable only right or deny an absolute systemic requirement, and we know of  none.  See Williams v. State, 305 S.W.3d 886, 893 n.11 (Tex. App.–Texarkana 2010, no pet.) (stating the court was unconvinced that the challenged provision of §21.02 of the Penal Code violates a fundamental right). 

Accordingly, there is nothing for us to address, and we affirm the judgment.

                                                                        Brian Quinn

                                                                        Chief Justice

Do not publish.      

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[1]The Texas Constitution requires jury verdicts in felony cases to be unanimous.  Tex. Const. art. V, §13; Stuhler v. State, 218 S.W.3d 706, 716 (Tex. Crim. App. (2007).  Moreover, federal constitutional due process limits the states’ ability to define a crime so as to dispense with jury unanimity.  Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006), quoting State v. Johnson, 627 N.W.2d 455, 459-60 (Wis. 2001).