TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

SUPPLEMENTAL OPINION ON AMENDED MOTION FOR REHEARING

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NO. 03-01-00660-CR

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Stephens Stratton Sheldon, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 9014100, HONORABLE JON N. WISSER, JUDGE PRESIDING

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On motion for rehearing, appellant asserts that we should not have refused to address his contention that section 550.021 of the transportation code was unconstitutionally vague as applied to him. Appellant argues that, contrary to our opinion, he had raised this issue in the trial court in his pretrial motion to quash the indictment. However, we have recently held that a challenge to a statute on grounds that it is unconstitutionally vague as applied cannot be raised by a motion to quash or a motion to set aside an indictment.

A motion to set aside an indictment or information may be used only for facial challenges on constitutional grounds. See State v. Rosenbaum, 910 S.W.2d 934, 946 (Tex. Crim. App. 1994) (dissenting op. adopted on reh'g). "An [information] must be facially tested by itself under the law, as a pleading, it can neither be supported nor defeated as such by what evidence is introduced on trial. A fortiori, it can not be supported or defeated by evidence presented at pretrial." Id. at 948 (citations omitted). Whether Markovich's conduct actually violated section 42.05 must be determined at trial. If convicted, he may argue that the statute was unconstitutionally applied to him.

Markovich v. State, 34 S.W.3d 21, 26-27 (Tex. App.--Austin 2000), aff'd, 77 S.W.3d 274 (Tex. Crim. App. 2002). After his conviction, the appellant could have raised this issue in the trial court by a motion in arrest of judgment or a motion for new trial. Appellant did not file and present a motion in arrest of judgment or a motion for new trial. Therefore, appellant waived his opportunity to raise the issue in the trial court. Appellant's amended motion for rehearing is overruled.

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Carl E. F. Dally, Justice

Before Justices Puryear, Dally ^* and Aboussie ^*

Amended Motion for Rehearing Overruled

Filed: March 6, 2003

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^* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

^* Before Marilyn Aboussie, Chief Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).