Roberto Rodriguez v. State

Opinion

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 251^ST 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Do not publish.

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NO. 07-10-00491-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 23, 2011

IN THE INTEREST OF A.N.J., A CHILD

 FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

NO. 10-01-21993; HONORABLE PAT PHELAN, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

            Appellant, Brenda Hall, appeals the judgment of the associate judge terminating her parental rights to her daughter.  Brenda’s appointed counsel has filed a brief in conformity with Anders v. California rendering her professional opinion that any issue that could be raised on appeal is frivolous and without legal merit.  See 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).  Brenda’s counsel avers that she has zealously reviewed the record in this matter and can find no arguable points of appeal.  Counsel has filed a motion to withdraw and provided Brenda with a copy of the brief.  Further, counsel has advised Brenda that she has the right to file a pro se response to the Anders brief.  The Court has likewise advised Brenda of this right.  Brenda has not favored the Court with a response.

            This Court has long held that an appointed attorney in a termination case might discharge his professional duty to his client by filing a brief in conformity with the Anders process.  See In re A.W.T., 61 S.W.3d 87, 88-89 (Tex.App.—Amarillo 2001, no pet.).  Likewise, other intermediate appellate courts have so held.  See Sanchez v. Tex. Dep’t of Family and Protective Servs., No. 03-10-00249-CV, 2011 Tex. App. LEXIS 2162, at *1, Tex.App.—Austin March 24, 2011, no pet.) (mem. op.); In re L.K.H, No. 11-10-00080-CV, 2011 Tex. App. LEXIS 1706, at *2-4, Tex.App—Eastland March 10, 2011, no pet.) (mem. op.); In re D.D., 279 S.W.3d 849, 849-50 (Tex.App.—Dallas 2009, pet. denied); In re D.E.S., 135 S.W.3d 326, 326-27 (Tex.App.—Houston [14^th Dist.] 2004, no pet.).

            We have conducted our own review of the record in this matter and have come to the conclusion that there are no arguable points of appeal.  See In re A.W.T., 61 S.W.3d at 89.  We, therefore, grant counsel’s motion to withdraw.  We remind counsel that Brenda has the right to file a pro se petition for review to the Texas Supreme Court.  Finally, having found no arguable points of appeal requiring reversal, we affirm the judgment of the trial court.

                                                                                                Mackey K. Hancock

                                                                                                            Justice