concurring.
I write separately to reinforce the majority’s conclusion that the Ex Post Facto Clause is a fundamental systemic requirement that may not be waived by failure to object at trial and to address the dissents of Judges Mansfield and Keller.
I.
A brief review of the facts is necessary. Appellant married the complainant’s mother in 1980. Starting in 1982 or 1983, when the complainant was seven or eight years old, appellant allegedly committed the instant offenses. The complainant first revealed these incidents to his mother in May of 1990.
In July of 1990, appellant was charged in multiple indictments with aggravated sexual assault of a child under 14 years-of-age. Each indictment alleged that the offenses occurred prior to September 1, 1983. Offenses of aggravated sexual assault committed prior to September 1, 1983, were prohibited by Tex.Penal Code Ann. §§ 21.04 and 21.05 which required the conduct be committed “with intent to arouse or gratify the sexual desire of any person.” Sections 21.04 and 21.05 were repealed, effective September 1, 1983, and replaced by §§ 22.011 and 22.021, which do not require the intent to arouse or gratify sexual desire. The instant indictments alleged offenses in violation of §§ 22.011 and 22.021. Appellant made no attempt to quash the indictments.
On appeal, appellant contended the indictments violated the Federal and State Constitutional Ex Post Facto Clauses1 because, by prosecuting appellant under § 22.021, rather *221than § 21.04 and § 21.05, the State’s burden of proof was lessened. Ieppert, slip. op. pg. 4. The Court of Appeals held appellant’s failure to raise his ex post facto claim in the trial court failed to preserve the issue for appellate review. Id., at 5.
II.
As a general rule, appellate courts will not consider an alleged error that was not first called to the attention of the trial judge. Johnson v. State, 878 S.W.2d 164, 167 (Tex.Cr.App.1994); Black v. State, 816 S.W.2d 350, 367 (Tex.Cr.App.1991) (Campbell, J., concurring). This general rule has been codified as Tex.R.App.P. 52(a). In most cases, the requirement of an objection is fundamentally sound and necessary for the orderly presentation and resolution of alleged trial errors and appellate issues. See, Rogers v. State, 640 S.W.2d 248, 264 (Tex.Cr.App.1982) (Op. on reh’g) (citing 24 C.J.S., Criminal Law, § 1670), and, Zillender v. State, 557 S.W.2d 515, 517 (Tex.Cr.App.1977). However, this general rule of waiver does not extend to all rights possessed by a defendant. Marin v. State, 851 S.W.2d 275, 278-280 (Tex.Cr.App.1993). In Marin, we recognized three distinct types of a defendant’s rights with regard to waiver: (1) those rights which are absolute, and may not be waived under any circumstances; (2) those rights which are automatically implemented by the system unless expressly waived by the litigants; and, (3) those rights which must be implemented upon request by the litigants, or are otherwise waived. Id., at 279. However, we did not specifically define which rights fell within each category. The instant issue concerns which category of the Marin scheme encompasses ex post facto claims.
Although ex post facto claims are constitutional in nature, some questions of constitutional magnitude may be waived when not raised at trial. Marin, supra (citing Gibson v. State, 516 S.W.2d 406, 409 (Tex.Cr.App.1974); and, Muniz v. State, 851 S.W.2d 238, 255 (Tex.Cr.App.1993). See generally, Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (failure to object to being tried in prison clothes waived error); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976) (failure to object to unconstitutional composition of grand jury waived error); Little v. State, 758 S.W.2d 551, 564 (Tex.Cr.App.1988) (failure to object to confession on grounds of involuntariness waived error); Boulware v. State, 542 S.W.2d 677, 679 (Tex.Cr.App.1976) (failure to object to excusal of venireperson in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), waived error); and, Hernandez v. State, 538 S.W.2d 127, 129 (Tex.Cr.App.1976) (failure to object to illegally seized evidence waived error).
Nonetheless, the general rule of waiver does not apply to all of a defendant’s rights. We have cautioned that Rule 52(a) applies “only in cases of forfeitable trial rights and never to the violation of fundamental systemic requirements or to the infringement of rights so important that their implementation is mandatory absent an express waiver.”2 Marin, 851 S.W.2d at 280. In other words, certain rights are so fundamental to a criminal trial that their violation undermines the inherent validity of the adjudicatory process and the rules of waiver do not apply. Thus, certain constitutional questions may be raised for the first time on appeal. For example, challenges to the constitutionality of a statute, Casares v. State, 768 S.W.2d 298 (Tex.Cr.App.1989); and, Rabb v. State, 730 S.W.2d 751, 752 (Tex.Cr.App.1987) (“Questions involving the constitutionality of a statute upon which a defendant’s conviction is based should be addressed by appellate courts, even when such issues are raised for first time on appeal.”), claims of double jeopardy, Disheroon v. State, 687 S.W.2d 332, 336 (Tex.Cr.App.1985) (Teague, J., concurring) (“[Bjecause of the fundamental nature of the double jeopardy clauses of the respective Constitutions, jeopardy can be raised for the first time on appeal.”), and where a defect of constitutional magnitude has not been established at the time of trial, Ex parte Chambers, 688 S.W.2d 483, 486 (Tex.Cr.App.1984) (Campbell, J., concurring, Davis, Clinton, McCormick, Teague and Miller, JJ., join), and, Black v. State, 816 S.Wüd at 362, 367 (failure to object to jury charge prior to *222Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), did not waive error because Penry requirements not established at time of trial).
There is a significant distinction between those rights which may be waived, and those rights constituting “fundamental systemic requirements” which cannot be waived. Marin, 851 S.W.2d at 280. Those constitutional rights, the violation of which undermines the inherent validity of a prosecution, constitute fundamental systemic requirements because the deprivation of the right renders the trial void ab initio. Sound policy underlies this distinction from those rights which are subject to waiver. A finding that a statute is unconstitutional, or that a defendant has been twice placed in jeopardy, provides an absolute bar to a prosecution. See, Johnson v. State, 755 S.W.2d 92, 97 (Tex.Cr.App.1988) (precluding prosecutions for flag desecration under Penal Code § 42.09(a)(3) when conduct falls within protection of First Amendment), affirmed, Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989), and, Stephens v. State, 806 S.W.2d 812, 816 (Tex.Cr.App.1990) (finding of insufficient evidence to prove aggravating element in aggravated rape prosecution barred subsequent prosecution for lesser included offense of rape). By contrast, other constitutional rights do not affect the inherent validity of a prosecution. For example, a violation of the Fifth Amendment right against coerced confessions may be ameliorated with an objection at trial, yet the admission of such evidence does not affect the validity of the trial itself. Thus, where the harm stemming from the violation of a defendant’s right may not be corrected without undermining the inherent validity of the trial, it is a fundamental systemic requirement and is not subject to waiver.
I agree with the majority that the prohibition against ex post facto laws is a fundamental systemic requirement. Both the United States and the Texas Constitutions contain an absolute prohibition against ex post facto laws. U.S. Const, art. I, § 10, and, Tex. Const, art. I, § 16. See, n. 1, supra. The principle upon which the Ex Post Facto Clauses are based is central to our concept of fairness, e.g. that a defendant have notice of that conduct which may subject him to criminal penalties. Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977) (citing United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954); and, Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939)). See also, Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987), and, Calder v. Bull, 3 Dall. 386, 389, 1 L.Ed. 648 (1798). Where a defendant is placed on trial for conduct which was not criminal at the time of its commission, the trial is fundamentally flawed because it violates our “concept of constitutional liberty.” Marks, 430 U.S. at 191, 97 S.Ct. at 993. Moreover, no ameliorative action on the part of the trial judge can render the trial fair. Consequently, a finding that a law is ex post facto will void a prosecution under that law. Cain v. State, 287 S.W. 262, 263 (1926) (prosecution for violating ordinance prohibiting erection of billboards held void as ex post facto to defendant who had erected billboards prior to passage). Consequently, the majority correctly concludes that claims of ex post facto are not subject to waiver for failure to raise them at trial.
III.
The question of whether an ex post facto violation actually occurred is not now before us; the sole ground for review deals with the preservation of error issue. Nevertheless Judge Mansfield, in dissent, reaches the merits of appellant’s ex post facto claim and finds no violation. For the following reasons, I believe Judge Mansfield is incorrect.
In Beazell v. Ohio, 269 U.S. 167, 170, 46 S.Ct. 68, 68, 70 L.Ed. 216 (1925), the Supreme Court summarized the characteristics of an ex post facto law:
It is settled, by decisions of this court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed which was innocent when done, which makes more burdensome and punishment for a crime, after its commission, or which deprives one charged with crime any defense available according to law at the *223time when the act was committed, is prohibited as ex post facto.
The Court further explained that within the concept of ex post facto is the fundamental principle that “the criminal quality attributable to an act, either by the legal definition of the offense, or by the nature or amount of the punishment ... should not be altered by legislative enactment, after the fact, to the disadvantage of the accused.” Id., 269 U.S. at 170, 46 S.Ct. at 68-69. Stated in the negative, “no ex post facto violation occurs if the change in the law does ‘... [not] change the ingredients of the offense or the ultimate facts necessary to establish guilt.’” Miller v. Florida, 482 U.S. 423, 433, 107 S.Ct. 2446, 2452-2453, 96 L.Ed.2d 351 (quoting Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884).
In Collins v. Youngblood, 497 U.S. 37, 41-43, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990), the Supreme Court reiterated that retroactively altering the definition of an offense to the detriment of the accused is prohibited by the Ex Post Facto Clause:
The Beazell formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause: Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.
See also, Ex parte Scales, 853 S.W.2d 586, 588 (Tex.Cr.App.1993) (Legislatures may not retroactively alter the definition of crimes.); French v. State, 830 S.W.2d 607, 608 (Tex.Cr.App.1992); and, Grimes v. State, 807 S.W.2d 582, 586 (Tex.Cr.App.1991).
In light of Beazell, Miller, and Youngblood, it is clear that charging appellant under § 22.021 constituted a violation of the Ex Post Facto Clause. The penal statutes in effect at the time of the alleged offenses required proof that the conduct was committed with the “intent to arouse or gratify the sexual desire of any person.” See, Tex.Penal Code Ann. § 21.04 (Sexual Abuse); § 21.05 (Aggravated Sexual Abuse), and, § 21.10 (Sexual Abuse of a Child), repealed, Acts 1983, 68th Leg., p. 5321, ch. 977, § 12. However, § 22.011 (Sexual Assault) and § 22.021 (Aggravated Sexual Assault) no longer require such an intent. Thus, the Legislature’s enactment of § 22.021 eliminating the “intent to arouse or gratify” element, reduced “the ultimate facts necessary to establish guilt.” Miller, 482 U.S. at 433, 107 S.Ct. at 2452-2453. Accordingly, charging appellant under § 22.021 for conduct proscribed under § 21.05 has the effect of retroactively altering the definition of the crime to the detriment of the accused. Youngblood, 497 U.S. at 41-43, 110 S.Ct. at 2719, and, Beazell, 269 U.S. at 170, 46 S.Ct. at 68-69. This violates the Ex Post Facto Clauses of the United States and the Texas Constitutions.
IV.
Similarly, Judge Keller errs in concluding these cases present pleading problems, and not ex post facto claims. Judge Keller’s conclusion is seemingly derived from the Court of Appeals opinion which expressed some confusion as to whether the indictments alleged an offense under § 21.05 or § 22.021. Ieppert v. State, Nos. 05-91-00077-CR, 05-91-00084-CR, 05-91-00085-CR, 05-91-00086-CR, 05-91-00087-CR, 05-91-00088-CR, slip op. pg. 5, 1992 WL 86706 (Tex.App.—Dallas, April 30, 1992) (not published).
Rather than assume the State proceeded to trial with facially complete indictments charging offenses under § 22.021, Judge Keller presumes the State proceeded to trial with defective indictments under § 21.05. Her assumption/presumption is contrary to established precedent directly on point. In Thomason v. State, 892 S.W.2d 8, 11 (Tex.Cr.App.1994), we held that where an indictment charges a complete offense, we presume the State intended to charge the offense alleged, and none other. Judge Keller attempts to distinguish Thomason by reasoning that the indictments must allege § 21.05 offenses otherwise they would violate the ex post facto clause. That is precisely appellant’s claim!
Under Judge Keller’s reasoning there will never be meritorious ex post facto claims, only poorly drafted charging instruments. Apparently, when Judge Keller views a beautiful painting of a horse, she concludes it is a bad painting of a zebra. As some Texans are fond of saying, “If it walks like a duck, quacks like a duck and looks like a duck, it’s a duck.” Similarly, .the indictments in the *224instant eases alleged offenses under § 22.021 not § 21.05.
With these comments, I join the majority opinion.
. U.S. Const, art. I, § 10 provides in pertinent part:
No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts....
Tex. Const, art. I, § 16 provides:
No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.
. All emphasis is supplied unless otherwise indicated.