Roberto Rodriguez v. State ( 2007 )

NO. 07-06-0352-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JULY 17, 2007
______________________________
ROBERTO RODRIGUEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 15,828-C; HON. RICHARD DAMBOLD, PRESIDING
_______________________________
ON MOTION FOR REHEARING
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Pending before us is the motion for rehearing of Roberto Rodriguez. In that motion,
he contends we failed to address whether he had a constitutional right to have a jury
determine whether the elements of a foreign penal statute and a Texas Penal statute were
substantially similar. We overrule the motion for several reasons.
First, the contention was not preserved. When asked at trial whether he had any
objections to the jury charge, appellant stated “no.” Responding “no” resulted in a waiver
of the current complaint. See White v. State, No. 2-02-143-CR, 2003 Tex. App. LEXIS 2033
(Tex. App.–Fort Worth, March 6, 2003, pet. ref’d) (not designated for publication) (holding
that a similar complaint was waived when the appellant stated that he had no objections
to the jury charge).
Next, and even if the issue was preserved, we note that appellant’s constitutional
argument is based on Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-
63, 147 L. Ed. 2d 435, 455 (2000). In Apprendi, the Supreme Court held that the United
States Constitution required any fact that increases the penalty for a crime beyond the
statutorily prescribed maximum to be submitted to a jury. Here, however, we construed
two statutes, and, as stated in our original opinion, the interpretation of statutes involves
a question of law. Hardy v. State, 187 S.W.3d 232, 236 (Tex. App.–Texarkana 2006, pet.
ref’d). Thus, Apprendi was and is inapplicable. See Ex parte White, 211 S.W.3d 316 (Tex.
Crim. App. 2007) (wherein the Texas Court of Criminal Appeals, as opposed to a jury,
assessed whether the two statutes were substantially similar).
Accordingly, appellant’s motion for rehearing is overruled.
Brian Quinn
Chief Justice
Do not publish.
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