David Lee Fairchild v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00053-CR
DAVID LEE FAIRCHILD APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION1
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A jury found Appellant David Lee Fairchild guilty of fraudulent use or
possession of identifying information with ten or more items of identifying
information and assessed his punishment at thirty-five years’ confinement. The
trial court sentenced him accordingly. In a single issue, Fairchild argues that
Texas Penal Code section 32.51(b-1)(1) is unconstitutional because it is arbitrary
and irrational in its application and wrongly shifts the burden of proof to the
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See Tex. R. App. P. 47.4.
defendant in violation of the Sixth Amendment of the United States Constitution.
See Tex. Penal Code Ann. § 32.51(b-1)(1) (Vernon Supp. 2010). Because
Fairchild did not preserve his complaint for appeal, we will affirm.
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v. State, 280 S.W.3d
235, 238–39 (Tex. Crim. App. 2009). 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. Tex. R. App. P.
33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A
reviewing court should not address the merits of an issue that has not been
preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App.
2009).
Generally, constitutional errors are forfeited by failure to object at trial.
Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995); see Mendez, 138
S.W.3d at 342. Neither an “as applied” challenge nor a facial challenge to the
constitutionality of a statute can be raised for the first time on appeal. Karenev v.
State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (holding a defendant may not
raise for the first time on appeal a facial challenge to the constitutionality of a
statute); Curry, 910 S.W.2d at 496 (holding appellant waived his vague-as-
applied challenge because he did not specifically object at trial).
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Here, because Fairfield did not raise an as applied or a facial challenge to
the constitutionality of penal code section 32.51(b-1)(1) in the trial court, he has
not preserved this issue for our review. See Karenev, 281 S.W.3d at 434; Curry,
910 S.W.2d at 496. Accordingly, we overrule Fairchild’s sole issue and affirm the
trial court’s judgment.
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 24, 2011
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