NO. 07-10-0283-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JANUARY 31, 2011

__________________ ___________
TERESO ALMAGUER A/K/A TER ESO ALMAGUER-JUAREZ,

Appellant v. THE STATE OF TEXAS, Appellee

__________________ ___________ FROM THE 355TH DISTRICT COURT OF HOOD COUNTY; NO. CR11345; HONORABLE RALPH H. WALTON JR., PRESIDING

__________________ ___________ Memorandum Opinion

__________________ ___________ Before QUINN, C.J., a nd CAMPBELL and HANCOCK, JJ. Appellant Tereso Almaguer was convict ed of continuous sexual abuse of his stepdaughter and his stepniece. On appeal, he argues that §21.02 of the Penal Code is unconstitutional because it allows for a c onviction upon less than a unanimous verdict. We affirm the judgment. The subject statute provides that an o ffense is committed if, during a period of thirty or more days, a person commits two or more acts of sexual abuse against a child2 regardless of whether they are committ ed against one or more victims. T EX

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. §21.02(b) (Vernon Supp. 2010). A jury is not requir ed to agree unanimously on which specific acts of sexual abuse we re committed by the defendant or the exact date when those acts were committed. Id. §21.02(d). It must on ly agree that during a period of thirty or more da ys, the defendant committed two or more acts of sexual abuse. Id. 1 Appellant did not bring t he alleged unconstitutionality of the statute to the trial court’s attention. Challenges to the consti tutionality of a statute may not be raised for the first time on appeal. Karenev v. State, 281 S.W.3d 428, 434 (Tex . Crim. App. 2009) (stating that a facial challenge may not be raised for the first time on appeal); Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (stating that an “as applied” challenge may not be raised for the first time on appeal). However, appellant argues th at fundamental error is involved. Fundamental error, which may be raised for the first time on appeal, is a violation of rights that are waivable only or a denial of absolute systemic requirements. Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). Waivable rights includ e errors regarding the assistance of counsel, trial by jury, and the right of appointed counsel to have ten days trial preparation. Saldano v. State, 70 S.W.3d 873, 888-89 (Tex. Crim. App. 2002). Systemic requirements include e rrors regarding jurisdiction of the person, subject matter jurisdiction, a penal statute’s compliance wit h the separation of powers clause of the

1 The Texas Constitution requires jury verdicts in felony cases to be unanimous. T EX

. C ONST . art. V, §13; Stuhler v. State, 218 S.W.3d 706, 716 (Tex. Crim. App. (2007 ). Moreover, federal constitutional due process limits the states’ ability to define a cr ime so as to dispense with jury unanimity. Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006), quoting State v. Johnson, 627 N.W.2d 455, 459-60 (Wis. 2001).3 state constitution, the constitutional prohi bition against ex post facto laws, the constitutional requirement that the district court conduct pr oceedings at the county seat, and constitutional restraints on the comments of a judge. Id. at 888-89. Appellant cites no authority for his proposition that the provisions of this st atute violate a waivable only right or deny an absolute systemic r equirement, and we know of none. See Williams v. State, 305 S.W.3d 886, 893 n.11 (Tex. App.–Texarka na 2010, no pet.) (stating the court was unconvinced that the chal lenged provision of §21.02 of the Penal Code violates a fundamental right). Accordingly, there is nothing for us to address, and we affirm the judgment.

Brian Quinn Chief Justice

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