Lupe Ortiz v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 4, 2024
• Docket: 13-22-00612-CR
• Status: Published

Opinion

NUMBER 13-22-00612-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

LUPE ORTIZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 82ND DISTRICT COURT OF FALLS COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Peña Memorandum Opinion by Justice Longoria

Appellant Lupe Ortiz was found guilty by a jury for continuous sexual abuse of a

young child. See TEX. PENAL CODE ANN. § 21.02. By one issue, which we construe as two,

Ortiz raises a facial and an “as applied” challenge to the constitutionality of § 21.02. See

id. We affirm. I. BACKGROUND 1

Ortiz was indicted for continuous sexual abuse of a young child under the age of

fourteen for committing two or more acts of sexual abuse against R.B. 2 during a period

that began on January 1, 2016 and ended on January 1, 2018. The indictment alleged

that the acts of sexual abuse included two incidents of indecency with a child by sexual

contact against R.B. See id. § 21.11. Ortiz’s case proceeded to a jury trial. After

presentation of all the evidence, the trial court read the charge to the jury. After the parties

presented closing arguments, the jury found Ortiz guilty of continuous sexual abuse of a

young child and assessed Ortiz a forty-year sentence. This appeal followed.

II. PRESERVATION

Ortiz complains that § 21.02 of the Texas Penal Code, the continuous sexual

abuse of a young child statute, is facially unconstitutional because it does not require jury

unanimity as to which specific acts of sexual abuse were committed by the accused. See

id. § 21.02. Ortiz also claims the statute allows the admission of extraneous offense

evidence “under the guise of being ‘manner and means’” such that it violates his right to

a fair trial, which we construe as an “as applied” challenge to § 21.02.

To preserve a complaint for our review, a party must first present “to the trial court

a timely request, objection, or motion” stating the specific grounds for the desired ruling if

1 This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a

docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer).

2 We refer to the minor victim by their initials to protect their identity. See TEX. CONST. art. I,

§ 30(a)(1) (providing that a crime victim has “the right to be treated . . . with respect for the victim’s dignity and privacy throughout the criminal justice process”).

2 not apparent from the context. TEX. R. APP. P. 33.1(a)(1). Further, the trial court must have

“ruled on the request, objection, or motion, either expressly or implicitly; or . . . the

complaining party [must have] objected to the [trial court’s] refusal” to rule. Id. at

§ 33.1(a)(2). “[A] challenge to the constitutionality of a statute is a forfeitable right and

must be preserved in the trial court during or after trial.” Cooper v. State, 673 S.W.3d 724,

749 (Tex. App.—Fort Worth 2023, no pet.); see Karenev v. State, 281 S.W.3d 428, 434

(Tex. Crim. App. 2009). Both facial and as-applied challenges must be raised in the trial

court to preserve error. Reynolds v. State, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014);

see Karenev, 281 S.W.3d at 434 (holding that “a defendant may not raise for the first time

on appeal a facial challenge to the constitutionality of a statute”); 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”)

Though “preservation of error is systemic and a first-level appellate court should

ordinarily review the issue on its own motion, we will not be hyper-technical in our

examination of whether error was preserved.” Archie v. State, 221 S.W.3d 695, 698 (Tex.

Crim. App. 2007) (cleaned up). Nonetheless, a party must take some steps “to let the trial

judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough

for the judge to understand him at a time when the trial court is in a proper position to do

something about it” lest the party forfeit the complaint on appeal. Keeter v. State, 175

S.W.3d 756, 760 (Tex. Crim. App. 2005).

In this case, Ortiz did not present either his facial or “as applied” challenges to the

3 constitutionality of § 21.02 to the trial court. 3 Because he did not preserve his arguments

for our review, we overrule his issues. See Reynolds, 423 S.W.3d at 383; TEX. R. APP. P.

33.1(a)(1)–(2).

III. CONCLUSION

We affirm the trial court’s judgment.

NORA L. LONGORIA Justice

Do not publish. TEX. R. APP. P. 47.2 (b).

Delivered and filed on the 4th day of April, 2024.

3 In his brief, Ortiz states that he “acknowledges that he is raising a facial and as-applied challenge

to the constitutionality of the statute in question—both for the first time on appeal” and that “[t]his practice is not allowed under existing law.” Ortiz further states that he “raises these issues to preserve error for potential review in the Court of Criminal Appeals.” 4