                                  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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