Challenging a Statute on Appeal Without Objection at Trial
The case of McLean v. State, 787 S.W.2d 196, 197 (Tex. App.--Corpus Christi, 1990, pet ref'd), recognized "an accused may challenge the constitutionality of a statute on appeal without having raised an objection at trial." Id., citing Rose v. State, 752 S.W.2d 529, 553 (Tex. Crim. App. 1987); Rabb v. State, 730 S.W.2d 751, 752 (Tex. Crim. App. 1987).
The Rabb Court went so far as to criticize the court of appeals for not reaching the merits of the constitutional challenge, holding:
"Questions involving the constitutionality of a statute upon which a defendant's conviction is based should be addressed by appellate courts, even when such issues are raised for the first time on appeal." Id., 730 S.W.2d at 752.
This court discussed this issue at length in McGowan v. State, 938 S.W.2d 732, 739 (Tex. App.--Houston [14th Dist) 1996)(op. on reh'g), affirmed sub nomine, Weightman v. State, 975 S.W.2d 621 (Tex. Crim. App. 1998).
The McGowan Court concluded that to raise a constitutional challenge for the first time on appeal, the questioned statute must affect the jurisdiction of the trial court to render a judgment against the defendant, and the defendant must challenge the facial constitutionality of the statute or argue the statute is void ab initio. Id. at 741.