Juan Rodriguez Guajardo v. State

Opinion

IN THE

TENTH COURT OF APPEALS

No. 10-17-00171-CR

JUAN RODRIGUEZ GUAJARDO, Appellant

v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas

Trial Court No. 2014-1196-C2

MEMORANDUM OPINION

Juan Rodriguez Guajardo was convicted of continuous sexual abuse of a young child (Count I) and indecency with a child by contact (Count II). The jury assessed Guajardo’s punishment at life imprisonment for Count I and twenty years’ imprisonment for Count II. The sentences were ordered to run concurrently. This is the appeal of his continuous-sexual-abuse-of-a-young-child (Count I) conviction.

In his sole issue, Guajardo contends that the continuous-sexual-abuse statute—

Texas Penal Code section 21.02—is facially unconstitutional. Guajardo acknowledges that he is raising a facial challenge to the constitutionality of a statute for the first time on appeal and that, under existing law, this is not permitted.1 The State agrees.

Guajardo is correct in his assessment of the current state of the law in Texas. The Court of Criminal Appeals has held that 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). Further, preservation of error is a systemic requirement on appeal, and if an issue has not been preserved for review on appeal, as in this case, we should not address the merits of the issue. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).

Guajardo’s facial challenge to the constitutionality of the continuous-sexual-abuse statute is not preserved for our review. Accordingly, we overrule Guajardo’s sole issue and affirm the trial court’s judgment as to Count I.2

REX D. DAVIS

Justice

Before Chief Justice Gray, Justice Davis, and Justice Neill Affirmed Opinion delivered and filed February 19, 2020 Do not publish [CRPM]

1 Guajardo raises the issue to preserve his complaint for potential review by the Court of Criminal Appeals.

2See, e.g., Pruitt v. State, No. 10-15-00033-CR, 2016 WL 555957, at *1 (Tex. App.—Waco Feb. 11, 2016, pet. ref’d) (mem. op., not designated for publication).

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