Karenev v. State

• Decision Date: 22 April 2009
• Docket Number: No. PD-0822-08.,PD-0822-08.
• Citation: 281 S.W.3d 428
• Parties: Nikolai Ivanov KARENEV, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

281 S.W.3d 428

Nikolai Ivanov KARENEV, Appellant v. The STATE of Texas.

No. PD-0822-08.

Court of Criminal Appeals of Texas.

April 22, 2009.

William E. Trantham, Denton, for Appellant.

Jeffrey L. Van Horn, State Prosecuting Atty., Austin, for State.

KELLER, P.J., delivered the opinion of the Court in which MEYERS, KEASLER, HERVEY, and HOLCOMB, JJ., joined.

The question in this case is whether a facial challenge to the constitutionality of the harassment statute may be raised for the first time on appeal. We hold that it may not, and we reverse the judgment of the court of appeals.

I. BACKGROUND

Elena Karenev filed for a divorce from appellant in October 2004. During March of 2005, appellant sent Elena several e-mail messages. These messages became the basis of a prosecution for harassment.¹ Consistent with the allegations in the information, the jury charge provided that the jury find appellant guilty if it found beyond a reasonable doubt that he:

did then and there with the intent to harass, annoy, alarm, abuse, torment, or embarrass Elena Karenev, send electronic communications to Elena Karenev in a manner reasonably likely to harass or annoy or alarm or abuse or torment or embarrass or offend the said Elena Karenev, to wit: sending harassing and/or threatening e-mail to Elena Karenev with the intent to harass, annoy, alarm, abuse, torment, or embarrass Elena Karenev.

Appellant was convicted. On appeal, he claimed for the first time that the harassment statute was unconstitutionally vague.

The court of appeals held that a challenge to the constitutionality of a statute as applied to a particular defendant must be raised at trial in order to preserve error.² But the court also held, based on one of its earlier decisions³ and relying upon what it called the Rabb⁴ rule, that a claim that a statute is unconstitutional on its face may be raised for the first time on appeal.⁵ The court of appeals outlined the following rationale for this "Rabb exception" to the contemporaneous objection rule:

[I]f the statute giving rise to a prosecution is unconstitutional, it is void from its inception, is no law, confers no rights, bestows no power on anyone, and justifies no act performed under it. Requiring the defendant to preserve such a challenge in the court below on pain of waiver could result in a criminal conviction based upon an unconstitutional statute. Because a statute criminalizing the defendant's conduct is necessary to the jurisdiction of the convicting court, the Rabb rule is properly applied when the defendant challenges the constitutionality of the specific statute he is charged with violating.⁶

The court of appeals then proceeded to address whether the harassment statute was constitutional on its face. Discussing and relying upon the Fifth Circuit's decision in Kramer v. Price,⁷ and our decisions in May v. State⁸ and Long v. State,⁹ the court of appeals held that the portion of the harassment statute under which appellant was prosecuted was unconstitutionally vague on its face because it suffered from the same defects that prompted the Fifth Circuit and this Court to declare earlier versions of the statute unconstitutional.¹⁰ Consequently, the court of appeals held that the statute was void and rendered a judgment of acquittal.¹¹

In its petition for discretionary review, the State claims that (1) appellant forfeited his facial challenge to the constitutionality of the harassment statute by failing to raise it in the trial court, and (2) the statute is not unconstitutionally vague.

II. ANALYSIS

The State advances several arguments in support of its contention that appellant forfeited error by failing to object at trial. First, the State attacks the Rabb opinion as poorly reasoned. Second, the State claims that the court of appeals's "lack of jurisdiction" rationale is undercut by the 1985 amendment to Article V, § 12 of the Texas Constitution that provided that the presentment of an information or indictment vests the trial court with jurisdiction over the cause. Third, the State relies upon Nix v. State,¹² contending that the "very nearly" exclusive list of rare situations in which a trial court's judgment is void does not include statutes that are facially unconstitutional. Finally, the State contends that the procedural default rule it urges has been adopted in other jurisdictions.

1. Federal Cases

It appears that the trend in federal courts is to disallow facial constitutional challenges that were not raised in the trial court. In some early cases, the United States Supreme Court held that a challenge to the constitutionality of the statute that defines the crime could be raised for the first time on habeas corpus because, if successful, it would render the statute void, affecting "the foundation of the whole proceedings."¹³ But the Court backed off from that statement in subsequent cases. In Glasgow v. Moyer, the defendant was charged with depositing an obscene book in the United States mails.¹⁴ Among other claims, the defendant contended that the statute defining the offense with which he was charged was constitutionally invalid on several grounds.¹⁵ Declining to address the merits of his claims, the Supreme Court explained, "The writ of habeas corpus cannot be made to perform the office of a writ of error [appeal]."¹⁶ So long as the trial court "had jurisdiction to try the issues and to render judgment," the habeas court was not concerned with trial matters, including a claim that "the law which was the foundation of the indictment and trial is asserted to be unconstitutional or uncertain in the description of the offense."¹⁷ In Sunal v. Large, the Supreme Court explained that in the past it had recognized "some exceptions" to the general rule that habeas corpus "will not be allowed to do service for an appeal" but suggested that the trend has been to narrow the availability of habeas relief for these types of claims where an "appellate procedure was available for correction of the error."¹⁸ In a later case, the Supreme Court explained that the statement that an unconstitutional law is "not a law" must "be taken with qualifications."¹⁹ "The actual existence of a statute, prior to" a determination of unconstitutionality, "is an operative fact and may have consequences that cannot be justly ignored."²⁰

In United States v. Baucum, the D.C. Circuit addressed a claim that a constitutional challenge to the federal "schoolyard statute" could be raised for the first time on appeal because it amounted to an attack on the trial court's subject matter jurisdiction.²¹ In its own research, the D.C. Circuit was surprised to find no universally accepted answer to that question.²² Citing Glasgow and Yarbrough, the court acknowledged the existence of "precedent on both sides of the issue," and, citing an Eleventh Circuit case, the court acknowledged that the defendant's "approach has some support in the caselaw."²³ Nevertheless, the D.C. Circuit held that, "[o]n balance . . . the weight of the precedent, as well as prudential considerations, counsel toward treating facial constitutional challenges to presumptively valid statutes as nonjurisdictional."²⁴ The court observed that the obligation of federal courts to raise subject matter jurisdiction questions sua sponte seems to conflict with the requirement that constitutional questions be avoided whenever possible.²⁵ The court further explained that the Supreme Court's holding in Chicot that an unconstitutional statute can be an "operative fact" constitutes a rejection of the broad-sweeping proposition that an unconstitutional statute is void ab initio.²⁶ The D.C. Circuit found that, usually, federal circuit courts have either refused to address constitutional challenges to criminal statutes that were not raised at trial or have addressed such challenges under the rubric of "plain error."²⁷

2. Texas Cases

The same trend is apparent in Texas. Developments in the law of charging instruments and void judgments undercut the notion that a facial challenge to the constitutionality of a statute involves a question of "jurisdiction." As currently written, the Texas Constitution defines an indictment or information, in part, as a "written instrument . . . charging a person with the commission of an offense" and provides: "The presentment of an indictment or information to a court invests the court with jurisdiction of the cause."²⁸ This language was added in 1985 and was designed to overturn the doctrine that a trial court lacked jurisdiction if there was a "fundamental" defect in the charging instrument.²⁹ Furthermore, we have narrowed the situations in which a judgment can be considered void, formulating a "very nearly" exclusive list in Nix:

(1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law, (3) the record reflects that there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived, in violation of Gideon v. Wainwright [, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed2d 799 (1963)].³⁰

This list does not include a judgment resulting from a facially unconstitutional statute.

The court of appeals cited one of its earlier cases that purported to rely upon the "Rabb rule."³¹ In Rabb, the defendant was charged with three offenses.³² In each case, the defendant waived trial by jury, requested a referral to a magistrate, and pled guilty pursuant to an agreement.³³ For the first time on appeal, the defendant challenged the constitutionality of the Dallas County Magistrate's Act.³⁴ This Court's analysis...