Defendant fled police in his car and struggled with police at arrest. He was filed on for resisting arrest and evading detention with a vehicle. He was acquitted for the resisting (the "force toward" issue) and subsequently filed a writ arguing double jeopardy as to the evading. It was properly denied.

However, after winning the evading case, Def is saying that the statute is unconsitutional as applied to him. My reading of "as applied" is that the statute has to be impermissibly vague as related to appellant's conduct, and that issue has to be raised in the trial court.

The question for the group is - do claims of lack of speedy trial and double jeopardy between resisting and evading presented in a pre-trial writ and in a motion for new trial create sufficient basis for an "as applied" pleading under TRAP 33.1 (forcing me to respond to this nearly incomprehensible claim), or may I simply state that Appellant has failed to preserve his claim for review since these do not relate to the "as applied" test?

Any help is appreciated.

A complaint that a statute is unconstitutional as applied because of vagueness must be raised in the trial court in order to preserve error. See McGowan v. State, 938 S.W.2d 732, 741- 42 (Tex.App.-Houston [14th Dist.] 1996), aff'd on other grounds sub nom., Weightman v. State, 975 S.W.2d 621 (Tex.Crim.App.1998). Further, a defendant's complaint on appeal must comport with the objection raised at trial. Santellan v. State, 939 S.W.2d 155, 171 (Tex.Crim.App.1997). An example of how tight the match has to be is McAnally v. State, 2002 WL 358828 (Tex.App.-El Paso March 7, 2002, no pet.) (motion to quash alleged "the indictment was too vague to give him notice of what offense he was charged with" did not comport with complaint on appeal that "the statute he is charged with is unconstitutional as applied to him").

It's seems unlikely that a pre-trial habeas application can ever preserve a complaintin the direct appeal of the criminal conviction. Green v. State, 999 S.W.2d 474 (Tex.App. - Fort Worth 1999, pet. ref'd) (pre-trial habeas attacked alleged vagueness in 38.04 but that would not provide a basis for complaint in appeal of conviction following plea bargain).

Don't you have to take a stab on the merits even if you are convinced the issue was not preserved? It's hard to imagine what his complaint would be.

You should never pass on the opportunity to respond to the merits. You never know when you will be defending a statute for the rest of the State.

John Bradley
District Attorney
Williamson County, Texas

Don't worry, I am responding to the merits, but the attorney's reasoning is so poor (not to mention his typing skills) that I am almost confused about how to answer him, and would therefore like to keep the answer as tight as I can.

I had read McGowan, but thanks for the heads up on Green - an unconsitutional application issue from evading is perfect.