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Date: 02-19-2021
Case Style:
Calvin Lyons v. The State of Texas
Case Number: 06-20-00073-CR
Judge: Ralph K. Burgess
Court: Court of Appeals
Sixth Appellate District of Texas at Texarkana
Plaintiff's Attorney: J. Randle Smolarz
Jerry D. Rochelle
Defendant's Attorney:
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Description:
Texarkana, Texas - Criminal defense attorney represented Calvin Lyons with a Aggravated Sexual Assault charge.
In his sole issue on appeal, Lyons contends that Section 22.021(a)(2)(B) of the Texas
Penal Code, which made him strictly liable for having sex with a child under the age of fourteen,
violated his right to due process because it failed to take into account the particular facts of his
case.3
However, Lyons failed to preserve this issue for appellate review.
“Preservation of error is a systemic requirement on appeal.” Ford v. State, 305 S.W.3d
530, 532 (Tex. Crim. App. 2009) (citing Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App.
2005)). An appellate court should not address the merits of an issue if it has not been preserved
for appeal. Id. Consequently, we should review preservation of error on our own motion, even
if the parties have not raised the issue. Id. at 532–33.
1We use pseudonyms to refer to the minor victim. See TEX. R. APP. P. 9.10.
2See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (ii), (2)(B).
3Section 22.021(a)(2)(B) makes the sexual assault of a child younger than fourteen years of age an aggravated
sexual assault. Fleming v. State, 455 S.W.3d 577, 582 (Tex. Crim. App. 2014). There is no mens rea requirement as
to the age of the victim. Id.; see TEX. PENAL CODE ANN. § 22.021(a)(2)(B).
3
To preserve an issue for our review, “a party must make a timely objection to the trial
court or make some request or motion apprising the trial court of the party’s specific complaint
and obtain a ruling, or refusal to rule, on the objection or motion from the trial court.” Minter v.
State, 570 S.W.3d 941, 943 (Tex. App.—Texarkana 2019, no pet.) (citing TEX. R. APP. P.
33.1(a)). “Almost all error—even constitutional error—may be forfeited if the appellant fails to
object.” Proenza v. State, 541 S.W.3d 786, 808 (Tex. Crim. App. 2017) (citing Fuller v. State,
253 S.W.3d 220, 232 & n.48 (Tex. Crim. App. 2008)). “[T]he Court of Criminal Appeals has
held that ‘“[a]s applied” constitutional claims are subject to the preservation requirement and
therefore must be objected to at the trial court in order to preserve error.’”
4 Minter, 570 S.W.3d
at 944 (quoting Reynolds v. State, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014) (citing Flores v.
State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008); Curry v. State, 910 S.W.2d 490, 496 &
n.2 (Tex. Crim. App. 1995)).
We have reviewed the entire record and have found no instance in which Lyons asserted
that the application of Section 22.021(a)(2)(B) would violate his right to due process, whether by
objection, by argument to the court, or by pretrial, in-trial, or post-trial motion. Consequently,
Lyons has not preserved this issue for our review. Reynolds v. State, 423 S.W.3d 377, 383 (Tex.
Crim. App. 2014). We overrule Lyons’s sole issue on appeal.
Outcome: For the reasons stated, we affirm the trial court’s judgment.
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