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Click here for the full text of this decision FACTS:Joseph Robert Barnett appeals his conviction for driving while intoxicated. After the trial court denied his motion to suppress, Appellant entered an open plea of nolo contendere. The trial court found Appellant guilty, sentenced him to fifteen days in the county jail, and assessed a $550 fine. At approximately 3 a.m. on Sept. 3, 2003, city of Arlington Police Officer Anthony Wright saw a green Jeep driving down the service road of U.S. Highway 287. Officer Wright observed two female passengers sitting on top of the headrest area of the rear seat of the Jeep, holding onto the roll bar. Officer Wright stopped the vehicle. Appellant was subsequently arrested for driving while intoxicated. HOLDING:Affirmed. Appellant asserts that the Arlington city ordinance, which provided the basis for Officer Wright’s traffic stop of Appellant, is facially unconstitutional. A defendant may raise a constitutional challenge to the facial validity of a statute for the first time on appeal. This rule is limited to challenges to the constitutionality of the statute under which a defendant was actually convicted. Rabb v. State, 730 S.W.2d 751 (Tex. Crim. App. 1987). The rationale for the Rabb exception to the general rule that failure to object at trial waives any right to complain is because if the statute giving rise to a prosecution is unconstitutional, it is void from its inception, is no law, confers no rights, bestows no power on anyone, and justifies no act performed under it. Requiring the defendant to preserve such a challenge in the court below on pain of waiver could result in a criminal conviction based upon an unconstitutional statute. Sullivan v. State, 986 S.W.2d 708 (Tex. App. – Dallas 1999, no pet.). Because a statute criminalizing the defendant’s conduct is necessary to the jurisdiction of the convicting court, the Rabb rule is properly applied when the defendant challenges the constitutionality of the specific statute he is charged with violating. Webb v. State, 899 S.W.2d 814 (Tex. App. – Waco 1995, pet. ref’d). The appellant challenges the constitutionality of the Arlington city ordinance that justified Wright’s stop of appellant, as opposed to the driving while intoxicated statute under which he was convicted. The Rabb rule should not be applied to allow appellant to raise the constitutionality of the ordinance providing the justification for Wright to stop Appellant without first presenting the argument to the trial court, the court holds. Appellant’s first point of error is not properly before the appellate court. OPINION:Dixon W. Holman, J.; Holman, Walker and McCoy, J.J.

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