Opinion
No. 14-09-00323-CR
Opinion filed December 17, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 19th District Court, McLennan County, Texas, Trial Court Cause No. 2009-192-C1.
Panel consists of Justices YATES, FROST, and BROWN.
MEMORANDUM OPINION
Appellant Danny Eubank appeals his conviction for aggravated assault challenging the constitutionality of section 22.02 of the Texas Penal Code. We affirm. The indictment charging appellant with aggravated assault alleged that he recklessly caused serious bodily injury to his girlfriend by striking her with a broom or wooden board or his hands or feet, or an object unknown to the grand jury. The second paragraph of the indictment charged appellant with knowingly, or recklessly causing bodily injury to his girlfriend by striking her with a broom or wooden board, or his hands or feet, and the use or exhibition of a deadly weapon. A jury found appellant guilty of aggravated assault and assessed punishment, enhanced by one prior felony conviction, at 45 years in the Institutional Division of the Texas Department of Criminal Justice. In a single issue, appellant challenges the constitutionality of section 22.02 of the Texas Penal Code. Section 22.02 provides that a person commits aggravated assault if he or she commits assault as defined in section 22.01 and the person: "(1) causes serious bodily injury to another, including the person's spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault." Tex. Penal Code Ann. § 22.02 (Vernon Supp. 2009). Appellant argues that the statute is facially unconstitutional because it does not require that the jury agree on which way the aggravated assault was committed. By challenging the text of the statute itself, not its application to the particular circumstances of an individual, appellant asserts a facial challenge to the constitutionality of section 22.02. See U.S. v. Salerno, 481 U.S. 739, 745 (1987) (Challenger attacking facial validity of legislative act must establish that no set of circumstances exists under which the act is valid.). In his brief, appellant admits this issue was not raised in the trial court. He argues, however, that the constitutionality of a statute is a Marin category-I right and may be raised for the first time on appeal. In Marin v. State, the court of criminal appeals divided the rules of error preservation into three categories: (1) absolute requirements or prohibitions, (2) rights that are waivable-only, and (3) rights that can be forfeited. 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993). A facial challenge to the constitutionality of a statute falls within the third category. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). Therefore, by failing to raise the issue of the constitutionality of section 22.02 at trial, appellant waived error. We overrule appellant's sole issue. The judgment of the trial court is affirmed.