Bryan Joseph Mele v. State ( 2018 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00185-CR
___________________________
BRYAN JOSEPH MELE, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 2
Tarrant County, Texas
Trial Court No. 1503581R
Before Sudderth, C.J.; Gabriel and Bassel, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellant Bryan Joseph Mele appeals from his conviction for the first-degree
felony offense of continuous sexual abuse of a child under fourteen (CSA) and from
the resulting thirty-year sentence. See Tex. Penal Code Ann. § 21.02(b) (West Supp.
2018). He argues that his sentence, which is ineligible for parole, is unconstitutional
as violative of the prohibition against cruel and unusual punishment and the guarantee
of equal protection. Because Mele failed to preserve these issues for appeal, we
affirm.
I. BACKGROUND
Mele sexually abused his young daughter over the span of seven years and was
indicted for CSA. Mele pleaded guilty without a plea-bargain agreement. At the
punishment hearing, the trial court found Mele guilty, and the State proffered a
presentence-investigation report, which the trial court admitted into evidence. Mele’s
counsel then urged the trial court to sentence Mele at the “low end” of the sentencing
range—twenty-five to ninety-nine years’ or life confinement. See id. § 21.02(h). The
State asked that the trial court sentence Mele to a term “sufficient to ensure the safety
of this community.” The trial court sentenced Mele to thirty years’ confinement.
Mele now appeals and contends that the statutory parole prohibition for CSA is
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unconstitutional.1 See Tex. Gov’t Code Ann. § 508.145(a) (West Supp. 2018); Tex.
Penal Code § 21.02.
II. DISCUSSION
In Mele’s first and second issues, he argues that his statutory ineligibility for
parole constitutes cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments to the United States Constitution and of article I, section 13
of the Texas Constitution. U.S. Const. amend. VIII, XIV; Tex. Const. art. I, § 13;
Tex. Gov’t Code Ann. § 508.145(a); Tex. Penal Code Ann. § 21.02. And in Mele’s
third and fourth issues, he argues that the categorical denial of parole based on his
CSA conviction violates the Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution and of article I, section 3 of the Texas Constitution.
U.S. Const. amend. XIV; Tex. Const. art. I, § 3. Mele acknowledges that these federal
and state constitutional provisions are coextensive. See Cannady v. State, 11 S.W.3d
205, 215 (Tex. Crim. App. 2000); Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App.
1997).
“[A] challenge to the constitutionality of a statute is a forfeitable right and must
be preserved in the trial court during or after trial.” Holmes v. State, 380 S.W.3d 307,
308 (Tex. App.—Fort Worth 2012, pet. ref’d); see Ibenyenwa v. State, 367 S.W.3d 420,
Mele does not clearly identify his constitutional arguments to be either facial or
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as-applied challenges. We consider Mele to be asserting both because his briefing
could liberally be read to encompass both. See Tex. R. App. P. 38.9.
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422 (Tex. App.—Fort Worth 2012, pet. ref’d) (op. on reh’g). A defendant 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); Ibenyenwa, 367 S.W.3d at
422. Similarly, the constitutionality of a statute as applied must be raised in the trial
court in order to preserve error. Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App.
1995); Ibenyenwa, 367 S.W.3d at 422; see Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex.
Crim. App. 2008) (noting the “well-established requirement that appellant must
preserve an ‘as applied’ constitutional challenge by raising it at trial”).
Mele did not raise these issues during the trial and did not file a motion for new
trial. Tex. R. App. P. 21.4(a), 33.1(a). He has, thereby, failed to preserve his
constitutional complaints for our review. See Kim v. State, 283 S.W.3d 473, 475 (Tex.
App.—Fort Worth 2009, pet. ref’d) (holding constitutional sentencing complaint not
preserved because defendant did not raise it during sentencing or in motion for new
trial).
But even if Mele had preserved his complaints, we have held that the
sentencing scheme for CSA convictions is facially constitutional.2 See McCain v. State,
No. 02-16-00411-CR, 2018 WL 1324485, at *1–7 (Tex. App.—Fort Worth Mar. 15,
2018, no pet.); accord Martin v. State, 335 S.W.3d 867, 878–79 (Tex. App.—Austin
A statute is unconstitutional on its face when its terms always operate
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unconstitutionally. Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex. Crim. App.
2006).
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2011, pet. ref’d). Further, the circumstances of Mele’s offense would not convince us
that this statutory-sentencing scheme operated unconstitutionally as applied to him.3
See, e.g., Long v. State, Nos. 02-17-00406-CR, 02-17-00407-CR, 2018 WL 3581008, at *2
(Tex. App.—Fort Worth July 26, 2018, pet. ref’d) (mem. op., not designated for
publication); McCain, 2018 WL 1324485, at *7.
III. CONCLUSION
Because Mele failed to preserve his issues for appeal, we overrule his issues and
affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
Lee Gabriel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: December 13, 2018
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A statute is unconstitutional as applied if the statute is generally constitutional
but operates unconstitutionally as applied to the claimant’s specific circumstances.
Estes v. State, 546 S.W.3d 691, 698 (Tex. Crim. App. 2018).
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