Opinion
No. 05-10-01325-CR
02-23-2012
NATHAN JOHN ELLIS, Appellant v. STATE OF TEXAS, Appellee
AFFIRM and Opinion Filed February 23, 2012
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-81123-09
MEMORANDUM OPINION
Before Justices O'Neill, Richter, and Francis
Opinion By Justice O'Neill
Appellant Nathan John Ellis was indicted on two counts of online solicitation of a minor and pleaded guilty to both counts. A jury sentenced him to ten years' confinement, probated for ten years and a suspended fine of $2500 on Count I and to sixteen years' confinement and a $2500 fine on Count II. In a single issue, he challenges the constitutionality of Texas Penal Code section 33.021 under the Texas Constitution and the U.S. Constitution because it infringes upon his right to free speech, his right to privacy, and is void for vagueness. We affirm.
Because appellant has not challenged the sufficiency of the evidence to support his conviction, only a brief recitation of the facts is necessary. In December of 2008, Sergeant Chris Meehan worked in the Internet Crimes Against Children Task Force for the Collin County Sheriff's Office. He set up a Yahoo profile in which he portrayed himself as a thirteen-year-old girl from McKinney with the screen name of brooke-chick13. He entered the Yahoo chat room and waited for someone to engage him in conversation. Appellant, whose screen name was texascowboy1980, sent brooke-chick13 a message and a conversation ensued. Despite appellant believing brooke-chick13 was a minor and repeatedly saying he could get in trouble or go to "the slammer," he continued to chat with her and discussed what he would like to do with her, which included getting her naked, fingering her, and her wrapping his hand around his penis.
Appellant and brooke-chick13 engaged in two more online conversations on March 24 and March 29, 2009, which again included discussions of sexual acts appellant wanted to perform on her and acts appellant wanted her to perform on him.
During the March 29 discussion, the two made plans to meet at a 7-Eleven behind her house. Appellant agreed to drive from Fort Worth to McKinney to meet her. The next day, officers patrolled the neighborhood and pulled appellant over once they spotted him in the neighborhood. Officers found a map to the neighborhood inside his pocket and an open box of condoms in the car's center console. Appellant was arrested for online solicitation of a minor.
In a single issue, appellant challenges the constitutionality of Texas Penal Code section 33.021. See Tex. Penal Code Ann. §33.021 (West 2011). The State responds appellant waived his constitutional challenges to the online-solicitation-of-a-minor statute because he failed to raise those issues in the trial court. The State further argues, even if the issues are preserved for review, the statute does not violate the Texas Constitution or the U.S. Constitution. We agree with the State that appellant has failed to preserve his arguments for review.
A facial challenge to the constitutionality of a statute is a forfeitable right, that is, it may be lost by the "failure to insist upon it by objection, request, motion, or some other behavior." Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); Ibenyenwa v. State, --- S.W.3d ---, 02-10- 00142-CR, 2011 WL 6260874, at *1 (Tex. App-Fort Worth Dec. 15, 2011, no pet.); Askew v. State, 05-10-00633-CR, 2011 WL 2993174, at *3 (Tex. App.-Dallas July 25, 2011, no pet.) (mem. op., not designated for publication). Preservation of error is not merely a technical procedural matter by which appellate courts seek to overrule points of error in a cursory manner. Fairness to all parties requires a party to advance his complaints at a time when there is an opportunity to respond and cure them. Laredo v. State, 159 S.W.3d 920, 923 (Tex. Crim. App. 2004).
Nothing in the record indicates appellant raised his challenges to the constitutionality of the statute to the trial court. Accordingly, we conclude and hold that appellant did not preserve his facial challenges to section 33.021 of the penal code. Appellant's sole issue is overruled.
The judgment of the trial court is affirmed.
MICHAEL J. O'NEILL
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101325F.U05
Court of Appeals Fifth District of Texas at Dallas
JUDGMENT
NATHAN JOHN ELLIS, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01325-CR
Appeal from the 401st District Court of Collin County, Texas. (Tr.Ct.No. 401-81123-09).
Opinion delivered by Justice O'Neill, Justices Richter and Francis participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered February 23, 2012.
MICHAEL J. O'NEILL
JUSTICE