Larry E. Moland v. State

Opinion issued February 9, 2012.

In The

Court

of Appeals

For The

First

District of Texas

————————————

NO.

01-10-00869-CR

———————————

Larry E. Moland , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 185th District

Court

Harris County, Texas

Trial Court Case No. 1241429

MEMORANDUM OPINION

Larry E. Moland was charged by indictment

with capital murder arising out of the robbery and shooting of Tekayes Stewart.

A jury found Moland guilty of capital

murder and the court sentenced him to life in prison without the possibility of

parole. See Tex. Penal

Code Ann. § 19.03(a)(2) (West 2011).

On appeal, Moland

argues that the trial court erred by excluding witness testimony and by sustaining

an objection made by the State during Moland’s closing argument, that the

punishment assessed was cruel and unusual under both federal and Texas law, and

that the statute under which he was sentenced violates the separation of powers

doctrine. We affirm.

Background

On October 4, 2009, Stewart, a nineteen-year-old

African American male, asked his friend Brent Woods to drive him to purchase firearms,

including two AK-47s, from Moland. The

gun deal previously had been arranged by Alejandro Rios and Mark Cornman, who met

with Moland a few days before the shooting and set up the transaction. On the day of the shooting, Stewart, Woods,

and Rios met Cornman and two other men, including Georgy Bikov, in a Wingstop

parking lot. Cornman directed Stewart to

follow Bikov’s car to a nearby apartment complex. When the men arrived at the complex, they

waited until Cornman received a call from Moland before Stewart and Cornman

walked to an apartment that Moland had once occupied. Woods and Rios remained in the car.

According to Cornman, when he and Stewart arrived at

the apartment, Moland was already waiting inside. After Stewart entered the apartment and locked

the door behind him, Moland pulled out a gun, showed it to Stewart, and then used

the gun to hit Stewart in the face. Stewart

fell backwards and Moland began to shoot Stewart. Cornman testified that he ran from the

apartment complex to Bikov’s house and waited outside until Bikov arrived. Cornman called Rios and repeatedly stated “he

got shot” but did not provide any additional details.

After Cornman’s phone call to Rios, Rios and Woods walked

to the apartment and saw a group of people standing outside. Woods testified that the bystanders said that

they had heard gunshots and that there was a boy wearing a hat in the kitchen. Woods and Cornman went into the apartment and found

Stewart, suffering from multiple gunshot wounds and lying on the floor of the

kitchen with his pants pulled down.

Rios, who was in possession of illegal drugs at the time, fled to the parking

lot. According to Rios, when he reached

the parking lot he saw both Bikov and Cornman inside Bikov’s car. Rios testified that Cornman looked scared and

that either during their meeting in the parking lot or later on the phone,

Cornman told him that a large African-American man with thick braids started

beating Stewart outside of the apartment, and that Cornman heard gunshots as he

ran from the apartment. Rios testified

that when he spoke to Cornman later in the day Cornman said that he had not

seen the shooter’s face.

Hector Cruz testified that he was smoking marihuana in

the apartment across the hall at the time of the shooting. Cruz testified that after he and his friends

heard the shots, they went into the apartment and found Stewart. Cruz testified that Stewart’s pants were

pulled low when Cruz found him and that Cruz did not touch the body. Although Woods testified that Stewart had

over $1,000.00 in his pocket earlier in the day, and Rios testified that he had

seen Stewart count a large amount of money and put it in his pocket before the

meeting with Moland, no money was found on Stewart’s body.

A couple of weeks after the shooting, the police questioned

Cornman. Cornman told the police the

same story that he initially told Rios: that Stewart had been shot by a

300-pound African-American man with braids, a description that, according to

Rios, did not match Moland’s appearance.

Cornman later identified Moland in a photograph line-up and wrote “the

one who shot the guy” next to Moland’s picture. At trial, Cornman testified that he initially

lied about the appearance of the shooter because Moland had called him after

the shooting and threatened to kill Cornman if the shooting was traced back to

Moland.

Moland was arrested and charged with capital murder

for the death of Stewart in the course of a robbery.

Exclusion of Bystander’s Statements

Moland argues that the trial court

erred by excluding as hearsay the testimony of a witness, Twauna Collier, who

would have testified about statements made to her at the scene by a deaf bystander,

which were simultaneously translated from sign language to English by the bystander’s

young nephew. Citing Saavedra v. State , 297 S.W.3d 342 (Tex.

Crim. App. 2009), Moland asserts that the bystander’s statements were

admissible as an excited utterance or present sense impression and that the

translation by the bystander’s nephew did not add a layer of hearsay because

the bystander authorized the boy to speak for her or adopted him as her agent for

purposes of the translation. Moland also

claims the exclusion of this testimony violated his Sixth Amendment right to

present a complete defense. We address

these issues in turn.

A.

Were the bystander’s translated statements inadmissible hearsay?

1. Standard of review

We review a trial court’s decision

to admit or exclude evidence under an abuse of discretion standard. Martinez

v. State , 327 S.W.3d 727, 736 (Tex. Crim. App. 2010), cert. denied , 131 S. Ct. 2966 (2011); Saavedra , 297 S.W.3d at 349 ; Zuliani

v. State , 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). A trial court abuses its discretion in this

regard if its determination “lies outside the zone of reasonable disagreement.”

Martinez , 327 S.W.3d at 736 .

2. Applicable law

Hearsay is an out of court statement offered to prove the truth of the

matter asserted. Tex. R. Evid. 801 . Hearsay

statements are not admissible unless they fall under a recognized exception to

the hearsay rule. Tex. R. Evid. 802, 803. To be properly admissible, each level of

hearsay must fall under an exception. See Crane v. State , 786 S.W.2d 338 , 353 – 54 (Tex.

Crim. App. 1990).

In the context of translations, the Court of Criminal Appeals has held

that an interpreter’s translation does not add a layer of hearsay if the

interpreter is acting as a “language conduit,” translating the statement of one

who has authorized him to translate or adopted the interpreter as his agent. Saavedra , 297

S.W.3d at 346. To determine whether the interpreter was acting

as an agent, courts consider the following four factors: (1) who supplied the

interpreter, (2) whether the interpreter had a motive to mislead or distort, (3)

the qualifications and language skills of the interpreter, and (4) whether

actions taken subsequent to the translated statement were consistent with the

statement. Id. at 348 (citing United

States v. Nazemian , 948 F.2d 522, 527 (9th Cir. 1991)). As the Court of Criminal Appeals noted in Saavedra , these four factors go not only

to the question of whether the interpreter was acting as an agent and

authorized to speak, but also to “the ultimate reliability of the proffered

evidence — always a

core consideration in fashioning any exception to the general rule against

admitting hearsay evidence over objection.”

Id . at 349. No one factor is either necessary or

sufficient to establish an interpreter acted as a language conduit; rather, the

factors are related and must be considered together. See Saavedra v. State , No. 05-06-01450-CR, 2010 WL 2028111 , at *3 – 4 (Tex. App.—Dallas May 24, 2010,

no pet.) (mem. op., not designated for publication) (citing Saavedra , 297 S.W.3d at 349)) . Finally, the proponent of

the evidence bears the burden of demonstrating to the satisfaction of the trial

court that, after taking these factors into account, the out-of-court

translation is admissible. Saavedra , 297 S.W.3d at 349.

3. Analysis

Collier lived in the apartment complex where the shooting occurred. She testified that, around the time of the

shooting, she saw three men, including Moland, run by her apartment. She also saw a group of men load a two-foot

long, black bag into a truck a few hours after the shooting. Shortly after seeing the men with the black

bag, while standing on a staircase near the crime scene, Collier was approached

by woman who looked upset and whom Collier believed to be deaf. According to

Collier, the woman and her nephew, whom Collier estimated was twelve years old,

were communicating through sign language.

Collier testified that the woman pointed to the same group of men that

Collier earlier had seen with the black bag and said, audibly, “that guy.” Collier testified that the group to which the

woman pointed was comprised of a few Hispanic men and one African American man,

but Moland was not among them.

When Moland’s counsel sought to elicit additional statements the woman

signed to her nephew, as translated by the nephew into English for Collier, the

State objected on hearsay grounds. Moland

argued that the woman’s statements were admissible as an excited

utterance. The State responded that the

nephew’s translation created a second layer of inadmissible hearsay. The trial court sustained the objection.

In his bill of exception, Moland established through Collier’s testimony outside

of the presence of the jury that Collier had seen the deaf woman around the

apartment complex before. While she had

not seen the boy with the woman before that day, she believed the boy was the nephew

of the woman because the boy told her so.

Collier then related the deaf woman’s statements, as they had been translated

to Collier by the boy: she and another lady “was passing by and seen [sic] one

of the gentlemen with a gun” and “it was a black guy.” According to Collier, the woman also said the

Hispanic men that were standing there with the black man “all had something to

do with it.” Collier testified that it

appeared to her that the boy was able to translate from sign language to

English, but she also acknowledged that she did not understand sign language

and did not know if the nephew was translating accurately.

Moland argued at trial, as he does on appeal, that

these excluded translated statements are not hearsay. Specifically, Moland contends that the first

layer of hearsay—the woman’s statements to her nephew, which she made in sign

language—are admissible under the excited utterance exception to the hearsay

rule. [1] Moland asserts, with respect to the nephew’s

translation, that it is not hearsay because the woman adopted her nephew as her

interpreter or authorized her nephew to speak for her. See

Saavedra, 297 S.W.3d at 348 . Moland

argues that three of the four Saavedra

factors weigh in favor of admissibility and that the trial court abused its

discretion in excluding the translated statements. We thus turn to the Saavedra factors.

i.

Who supplied the interpreter?

The record does not contain any evidence suggesting that the nephew who

translated the woman’s statements to Collier was provided by either party. There is no indication that the nephew or the

woman knew or had any relationship with Moland or the State, much less that

they were communicating with Collier at the behest of either of them.

While Moland contends that this factor weighs in favor of admissibility

because the woman “supplied” her nephew as her interpreter, this court previously

has found that a relative of a witness who happens to be on location and serves

as an interpreter is not supplied by either party for purposes of this four-factor

analysis. Driver v. State , No. 01-07-00386-CR, 2009 WL 276539 , at *6 (Tex.

App.—Houston [1st Dist.] Feb. 5, 2009, pet. ref’d) (mem. op., not designated for

publication) (finding relative of non-English-speaking wife of complainant who

was at complainant’s wife’s home at time of police interview and translated

interview was not supplied by either party); see also Cassidy v. State , 149 S.W.3d 712, 715 (Tex. App.—Austin

2004, pet. ref’d) (interpreter not provided by either party where he was coworker

visiting accident victim when police arrived for interview). Accordingly, we conclude this factor is

neutral, weighing neither in favor of nor against admissibility.

ii.

Did the interpreter have any

motive to mislead or distort?

We agree with Moland’s contention, which the State does not dispute, that

nothing in the record suggests that the boy had a motive to mislead or distort

his aunt’s statements. Nothing in the record

shows that the nephew was motivated to provide anything but an accurate

translation in English to Collier. Accordingly,

we conclude this factor weighs in favor of admitting the testimony.

iii.

What are the interpreter’s qualifications and language skills?

There is scant evidence regarding the boy’s language skills or qualifications

as an interpreter. Collier testified

that it appeared to her that the woman and her nephew were communicating in

sign language. But she also stated that

she did not know sign language and had no idea if the nephew was translating

accurately. There is no other evidence

in the record regarding the boy’s qualifications or language skills. The trial court was concerned that this

undermined the reliability of the translation. We agree with the trial court that this factor

weighs against admissibility. See Saavedra , 2010 WL 2028111 , at *3 – 4 (although

translator, a records clerk in the police department, was on approved list of

department translators, third factor weighed against admissibility because no

specific details on background of translator or requirements for placement on approved

list were offered); cf. Diaz v. State ,

No. 08-07-00323-CR, 2010 WL 109703 , at *8

(Tex. App.—El Paso Jan. 13, 2010, pet. dism’d) (mem. op., not designated for

publication) (finding CPS investigator who acted as interpreter sufficiently

skilled to translate Spanish to English where record demonstrated that Spanish

was her first language and was spoken fluently in her household and she had

taken Spanish in grade school, high school and college); Driver , 2009 WL 276539 , at *6 (record demonstrated family member

who served as interpreter had demonstrated her language abilities by

translating Cambodian to English in two other police interviews of witness).

iv.

Were actions taken subsequent to the translated statement

consistent with the statement as translated?

The record contains no evidence of any action taken subsequent to the making

of the statements at issue that would reveal any consistency or inconsistency with

the translated statements. For example,

there is no indication that the woman or the boy made any subsequent statement

to the police or any other witness. And

neither of them testified at trial. We

find this factor neutral, weighing neither for nor against admissibility.

Having examined all four Saavedra

factors, we find the first and fourth factors are neutral, the second weighs in

favor of admissibility and the third weighs against admissibility. On this record we cannot conclude that the

trial court abused its discretion in finding that Moland failed to carry his

burden to establish the admissibility of the translated statements. See

Saavedra , 297 S.W.3d at 349 (noting proponent of evidence bears burden to

persuade trial court on admissibility); cf.

Saavedra , 2010 WL 2028111 , at *4 (abuse of discretion to admit evidence

where the record did not demonstrate declarant authorized police department

employee to speak for him or that employee, despite being on the approved list

of translation, was reliable translator); Driver ,

2009 WL 276539 , at *6 (no abuse of discretion where trial court admitted

translation where first and second factors were neutral, translator

demonstrated language abilities in two other police interviews, and witness whose

statements were translated was subject to cross-examination at trial and

repeated her identification of appellant through interpreter).

B.

Did the

exclusion of the bystander’s statements violate Moland’s right to present a

complete defense?

Moland contends that even if the translated statements were inadmissible

under the Texas Rules of Evidence, they should have been admitted because they were

“necessary to establish a defense theory that someone other than [Moland]

either shot Stewart, or stole Stewart’s money.”

Relying on Holmes v. South

Carolina , Moland contends the exclusion of some of Collier’s testimony,

including the hearsay statements by the neighbor that she had seen one of the men

standing near the crime scene with a gun and that “they all had something to do

with it,” violated his constitutional right to present a complete defense. Holmes

v. South Carolina , 547 U.S. 319 , 126 S. Ct. 1727 (2006). In Holmes ,

the defendant sought to prove that another man committed the crime of which he

was accused. Holmes , 547 U.S. at 323 . A

South Carolina trial court excluded the evidence under the Gregory rule, which restricted the admissibility of evidence

relating to third-party guilt. Id. at 323–24 (citing State v. Gregory ,

16 S.E.2d 532 (S.C. 1941)). Under the

rule, as extended by the court in Holmes ,

evidence was admissible if it

raised an inference as to the defendant’s own innocence, but was inadmissible

if it only “cast bare suspicion upon another” or raised “a conjectural

inference as to the commission of the crime by another.” Id. (citing Gregory ,

16 S.E.2d at 534 ). The purpose

of the Gregory rule was “to focus the

trial on the central issues by excluding evidence that has only a very weak

logical connection to the central issues.” Id.

at 330. The United States Supreme Court

held that the rule as applied by the South Carolina Supreme Court was “arbitrary”

because it did not rationally serve the end that the Gregory rule was originally designed to further. Id.

at 331.

In Texas, the improper exclusion of evidence may raise a constitutional

violation in two circumstances: (1) when an evidentiary rule categorically and

arbitrarily prohibits the defendant from offering relevant evidence that is

vital to his defense, or (2) when a trial court erroneously excludes evidence

that is a vital portion of the case and the exclusion effectively precludes the

defendant from presenting a defense. Ray v. State , 178 S.W.3d 833, 835 (Tex. Crim.

App. 2005) (citing Potier v. State ,

68 S.W.3d 657 , 659–62 (Tex. Crim. App. 2002)).

This case

is distinguishable from Holmes in

that the trial court here excluded the statements under the hearsay rule, an

established evidentiary rule trial courts may invoke to exclude otherwise

relevant and admissible evidence. See Tex.

R. Evid. 402 . Out-of-court

statements are subject to four “dangers” — faulty perception, faulty memory, miscommunication, and insincerity. Williamson

v. United States , 512 U.S. 594, 598 , 114 S. Ct. 2431, 2433 (1994); Walter v. State , 267 S.W.3d 883, 889 (Tex. Crim. App. 2008). Such statements generally do not have the

same safeguards that are present for in-court statements, such as “[T]he oath,

the witness’ awareness of the gravity of the proceedings, the jury’s ability to

observe the witness’ demeanor, and, most importantly, the right of the opponent

to cross-examine . . . .” Williamson , 512 U.S. at 598 . The hearsay rule serves to minimize these

dangers for out-of-court statements. Id.

The

exclusion of some of the deaf woman’s hearsay statements did not amount to a

constitutional error. Collier was

allowed to testify that a few hours after the shooting, the deaf woman, while

under the stress and excitement of the situation, verbally stated, “that guy”

while pointing to a group of five people, none of whom was Moland. Collier also was permitted to testify that a

few moments before she spoke with the deaf woman, she had seen the same group

of men with a black bag that was large enough to carry AK-47s. Moland thus was allowed to offer exculpatory

evidence suggesting the group of men, which did not include Moland, was

involved in the crime. We conclude that the

trial court’s application of the evidentiary rules did not deprive Moland of

his Sixth Amendment right to present a complete defense. See Segundo

v. State , 270 S.W.3d 79 , 101 – 102 (Tex. Crim. App. 2008) (where appellant was allowed to offer

testimony of existence of alternate suspects, appellant’s constitutional rights

were not violated by trial courts exclusion of additional hearsay evidence

concerning the same where appellant failed to show excluded statements were

relevant or reliable) (citing Potier v.

State , 68 S.W.3d at 662, 665 ) (noting that “courts are free to apply

evidentiary rules that are not arbitrary and unjustified,” and concluding that

“the exclusion of a defendant’s evidence will be constitutional error only if

the evidence forms such a vital portion of the case that exclusion effectively

precludes the defendant from presenting a defense”); see Soffar

v. State , No. AP-75363, 2009

WL 3839012 , at *13 (Tex. Crim. App. Nov. 18, 2009) (not designated for

publication) (exclusion of hearsay testimony was not violation of right to present

complete defense under Holmes ), cert.

denied , 130 S. Ct. 3507 (2010). We overrule Moland’s first point of

error.

Closing Argument

In his

second point of error, Moland contends that the trial court erred in sustaining

the State’s objection to his closing argument.

Moland argues that trial counsel was attempting to have the jurors “view

Cornman’s credibility and hence the degree of doubt which they should have,

under the rationale which once formed the definition of reasonable doubt” under

Geesa v. State , 820 S.W.2d 154 (Tex.

Crim. App. 1991), overruled in part on

the same grounds by Paulson v. State , 28 S.W.3d 570 (Tex. Crim. App.

2000). At trial the following argument

was offered in closing:

[Defense Counsel]: . . .Would you trust a guy like that? You knew everything about Mark Cornman that

you know about him, would you trust him to do things—

[Prosecutor]: Objection, that’s an improper argument.

[The Court]: Sustained. Please

rephrase it.

[Defense Counsel]: You know everything about Mark Cornman? Can you trust

him? Would you trust him to do stuff in your everyday life?

[Prosecutor]:

I’m going to object. It’s an improper argument.

[Defense

Counsel]: It’s not improper, Judge. It’s a reasonable deduction from the

evidence.

[The Court]:

Can

you rephrase it rather than the jurors?

Moland’s

counsel continued his argument as to Cornman’s lack of credibility without

objection.

The State

contends Moland failed to preserve error because the record does not reflect

what Moland’s counsel would have argued to the jury had the trial court not

sustained the State’s objection. We

agree. “ Where the record does not fully demonstrate to

the reviewing court what counsel would have argued but for an objection, no

demonstration of harmful error is made.”

Price v. State , 870 S.W.2d

205, 209 (Tex. App.—Fort Worth) (appellant waived issue for review where record

did not reflect what he would have argued if objection had not been sustained),

aff’d , 887 S.W.2d 949

(Tex. Crim. App. 1994) (citing Dean v.

State , 481 S.W.2d 903, 904 (Tex. Crim. App. 1972); see Robinson v. State ,

No. 05-03-01805-CR, 2005 WL 1405735 , at *4 (Tex. App. — Dallas June 16, 2005, pet. ref’d) (mem. op.,

not designated for publication) (appellant’s argument that trial court erred in

sustaining State’s objection during closing not preserved for appeal when

appellant did not except to ruling, move for mistrial, or present bill of

review) (citing Ramirez v. State , 815

S.W.2d 636, 648 (Tex. Crim. App. 1991)).

Moland has not preserved this issue for our review. See Price ,

870 S.W.2d at 209 . We overrule Moland’s second point of

error.

Cruel and Unusual Punishment

In his third and fourth

points of error, Moland argues that his mandatory sentence of life in prison without

the possibility of parole constitutes cruel and unusual punishment because the

sentencing scheme provided no vehicle for the consideration of mitigating

evidence. Moland asserts this argument under

both the Eighth Amendment of the United States Constitution and Article 1 of

the Texas Constitution. See U.S. Const. amend. 8; Tex. Const. art.

I, § 13.

Moland failed preserve his

claimed errors for review. Before a

party may present a complaint for appellate review, normally the record must

show that the complaint was made to the trial court by a timely request,

objection, or motion. Tex. R. App. P.

33.1 (a) . Moland did not object to the sentence

as being cruel and unusual under federal or Texas law following the

pronouncement of the sentence, nor did he do so in his motion for new trial. Moland contends that he was not required

to make an objection at trial to preserve this issue for review because any

objection at trial would have been futile.

We disagree. Both this Court and Fourteenth

Court of Appeals have held that a cruel and unusual punishment claim is waived

if not raised in the trial court. Benson v. State , 224 S.W.3d 485, 498 (Tex.

App. —Houston [1st Dist.] 2007, no

pet.) (appellant waived raise cruel and unusual punishment argument by failing

to raise issue at trial); W ilkerson v. State , 347

S.W.3d 720, 722 (Tex. App. —Houston

[14th Dist.] 2011, pet. ref’d) (same). Because no

specific and timely objections were made, Moland has waived these arguments by

raising them for the first time on appeal.

We

overrule Moland’s third and fourth points of error.

Constitutionality of Section 12.31

(a)(2)

In his fifth point of error, Moland

asserts that a mandatory life sentence without the possibility of parole under Texas Penal Code section 12.31(a)(2) violates the

separation of powers doctrine under article II of the Texas Constitution. Tex. Penal Code Ann. § 12.31(a) (West 2011). That doctrine, as articulated in

article II, section 1 of the Texas Constitution, states the following:

The powers of the Government of the State of Texas

shall be divided into three distinct departments, each of which shall be

confided to a separate body of magistracy, to wit: Those which are

Legislative to one; those which are Executive to another, and those which are

Judicial to another; and no person, or collection of persons, being of one of

these departments, shall exercise any power properly attached to either of the

others, except in the instances herein expressly permitted.

Tex. Const. art. II, § 1. Specifically,

Moland argues that section 12.31(a)(2) shifts

power away from the Board of Pardons and Paroles (“Board”), which is an executive

agency, and into the hands of the prosecutor, who is an officer of the

judiciary. See Tex. Const. art. IV, § 11 ; Tex. Const. art. V, § 21 ; Meshell v. State,

739 S.W.2d 246, 253 (Tex. Crim. App. 1987) (holding that county and district

attorneys are officers within judicial department).

Moland’s argument focuses on the discretionary aspect of sentencing under

Texas Penal Code section 12.31. In a

capital trial, the prosecutor may elect to seek a punishment in the form of

death or, alternatively, a sentence of life without a possibility of parole. Tex.

Penal Code Ann. § 12.31(a). When

the prosecutor elects to seek life without the possibility of parole and a

conviction is secured, the mandatory sentence precludes the Board from ever

exercising its powers of executive clemency. See Tex. Gov’t Code Ann. § 508.141 (West

Supp. 2011). Moland claims that this

violates the separation of powers doctrine because the election permits the

prosecutor to determine that a capital defendant is not deserving of parole

regardless of individual circumstances, a decision that is otherwise left to

the Board when the defendant is convicted on a lesser charge. Moland contends that because any

objection at trial would have been futile, he has not waived the right to make

this argument for the first time on appeal.

We disagree.

The Texas Court of Criminal Appeals

has held that an appellant may not raise a facial challenge to the

constitutionality of a statute for the first time on appeal. Karenev

v. State , 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). In reaching its holding, the Court overruled

its earlier decision in Rose v. State, 752

S.W.2d 529 (Tex. Crim. App. 1987) (op. on reh’g), in which it held that a separation

of powers challenge to a penal statute could be raised for the first time on

appeal. Karenev , 281 S.W.3d at 433 –34 . In Karenev ,

the Court stated that statutes are presumed to be constitutional until it is

determined otherwise and “[t]he State and the trial court should not be

required to anticipate that a statute may later be held to be

unconstitutional.” Id. at 434 . Here, Moland concedes

that he did not assert his constitutional challenge to Texas Penal Code

section 12.31 (a)(2) at trial or

in his motion for new trial. Accordingly,

we hold that Moland has waived his right to appeal this issue. Tex.

R. App. P. 33.1; Karenev , 281

S.W.3d at 434 ; see Wilkerson , 347

S.W.3d at 724 (following Karenev ,

appellant cannot, for first time on appeal, raise argument that Texas Penal

Code section 12.31 violates separation of powers doctrine); see also Reyna v. State , 168 S.W.3d 173 ,

179–80 (Tex. Crim. App. 2005) (holding that defendant did not preserve

Confrontation Clause objection by failing to clearly articulate objection in

trial court).

We overrule Moland’s fifth issue.

Conclusion

We affirm the judgment of the trial

court.

Rebeca

Huddle

Justice

Panel

consists of Chief Justice Radack and Justices Bland and Huddle.

Do

not publish. Tex. R. App. P. 47.2( b).

[1] The State does not dispute this

contention on appeal.