PEDRO ROLLERO-SUARES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed July 16, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00862-CR
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PEDRO ROLLERO-SUARES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-88955-RW
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OPINION
Before Justices FitzGerald, Richter, and Lang-Miers
Opinion By Justice FitzGerald
        A jury found appellant Pedro Rollero-Suares guilty of aggravated sexual assault of a child and found the State's enhancement allegation true. The jury assessed the mandatory punishment of life in prison. Rollero-Suares appeals. In three issues, he argues the trial court erred in arraigning him and in charging the jury on the enhancement offense. We affirm the trial court's judgment.
        In his first issue, appellant contends the trial court erroneously arraigned him concerning the State's enhancement offense. That offense was an Oregon conviction for “Sexual Abuse in the First Degree.” According to appellant, the trial court made a series of errors at the pretrial arraignment hearing, including the following: *
 
referring to the Oregon conviction as “an offense of aggravated sexual assault of a child under [fourteen]”;
 
*
 
failing to identify the State's burden to prove the enhancement offense;
 
*
 
failing to explain that the “mandatory life sentence” the court warned appellant of was only mandatory if (a) he was found guilty in the present case, (b) the Oregon conviction was found to be true, and (c) the Oregon conviction met the penal code requirement of having “elements that are substantially similar to the elements of an offense under Section 21.02”; and
 
*
 
advising appellant that if he was assessed a life sentence, then his “minimum time in the penitentiary will be 30 years.”
 
The cumulative effect of these errors, according to appellant, was to intimidate or confuse him so that he rejected the State's plea bargain and entered an involuntary plea of not guilty.
        Appellant concedes he did not object to any of the arraignment statements or omissions he identifies as errors on appeal. He acknowledges the failure to object generally results in failure to preserve error for appellate review. See Tex. R. App. P. 33.1(a). However, appellant contends that the trial court's arraignment errors amounted to a violation of his due process right to an impartial judge, and thus represented fundamental error, making objection unnecessary. We disagree. An issue concerning the voluntariness of a guilty plea does not meet the requirement of fundamental error. Mendez v. State, 138 S.W.3d 334, 350 n.5 (Tex. Crim. App. 2004) (citing Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997)). Appellant has failed to preserve error for our review; we overrule his first issue.
        In his second issue, appellant argues the trial court erred at the punishment phase of trial by failing to arraign him on the enhancement offense before the jury. The relevant statute states:
 
The indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07. Tex. Code Crim. Proc. Ann. art. 36.01(a) (Vernon 2007). The statute makes the reading of the enhancement portion of the indictment to the jury mandatory. If the indictment is not read then no issue is joined for trial. Warren v. State, 693 S.W.2d 414, 415 (Tex. Crim. App. 1985). However, appellant did not object to the trial court's failure to read the enhancement portion of the indictment. Moreover, he failed to take advantage of any other opportunity to bring the error to the trial court's attention when the error could have been cured or preserved. See id. at 417 (error can be cured later at trial or preserved through motion for new trial, bill of exception, or motion to arrest judgment). Appellant has failed to preserve error for our review on this issue as well, and we overrule his second issue.
 
        Finally, in his third issue, appellant complains the trial court erred in charging the jury concerning the sentencing effect of his Oregon conviction. The penal code provides in relevant part:
 
a defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life if:
 
. . . .
 
 
(B) the defendant has previously been convicted of an offense:
 
 
 
(i) under Section 43.25 or 43.26, Penal Code, punishable under Subsection (h) of that section;
 
 
 
(ii) under Section 21.02, 21.11, 22.011, 22.021, or 25.02, Penal Code;
 
 
 
(iii) under Section 20.04(a)(4), Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually;
 
 
 
(iv) under Section 30.02, Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony described by Subparagraph (ii) or (iii); or
 
 
 
(v) under the laws of another state containing elements that are substantially similar to the elements of an offense listed in Subparagraph (i), (ii), (iii), or (iv). Tex. Penal Code Ann. § 12.42(c)(2)(B) (Vernon Supp. 2007). The State offered evidence showing appellant had been convicted in Oregon of sexual abuse in the first degree; appellant does not challenge the sufficiency of the evidence establishing he was in fact convicted of that offense. Instead, appellant argues the trial court incorrectly instructed the jury to assess a life sentence if the Oregon sexual abuse conviction were found to be true, because the State presented no evidence establishing the Oregon conviction contained substantially similar elements to one of the penal code's listed offenses. See id. § 12.42(c)(2)(B)(v). We review a jury-charge complaint, in the first instance, to determine whether error actually exists in the charge. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
 
        Initially, we disagree with appellant's framing of this issue: whether the elements of the Oregon offense for which he was convicted are substantially similar to those listed in section 12.42(c)(2)(B) is not a question for the jury requiring sufficient evidence to survive appellate review. Instead, the similarity of the offenses' respective elements is a question of statutory interpretation, which is a question of law for the trial court. Hardy v. State, 187 S.W.3d 232, 236 (Tex. App.-Texarkana 2006, pet. ref'd).   See Footnote 1  The court is required to take judicial notice of the out-of-state statute and to make a finding that the offense committed under that statute is substantially similar to one of the offenses listed in section 12.42(c)(2)(B). Id. The trial court's finding can be implicit in the court's actions concerning the out-of-state conviction. Id.
        In this case, the trial court addressed appellant, outside the presence of the jury, concerning the Oregon conviction:
 
COURT: Sir, the State has put you on notice that they intend to introduce evidence of a prior conviction, that you were convicted of sexual assault in 1984 in Oregon. How do you plead to that notice, sir, true, that you were convicted, or not true, you were not convicted.
 
 
 
[COUNSEL FOR DEFENDANT]: He would enter a plea of not true, Judge.
 
The trial court explained the State's intended use of the Oregon offense and took appellant's plea. The court subsequently charged the jury concerning the Oregon offense and concerning the life sentence that must be assessed if it were proved true. From this conduct, we must assume the trial court took judicial notice of the Oregon statute and found the necessary elements of the offenses to be substantially similar. Absent such judicial notice and finding, the trial court could not have charged the jury on the enhancement or imposed a mandatory life sentence. See id. We conclude the trial court did not err in charging the jury concerning the Oregon enhancement offense as it did. We overrule appellant's third issue.   See Footnote 2 
        We have resolved each of appellant's issues against him. Accordingly, we affirm the judgment of the trial court.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070862F.U05
 
Footnote 1 None of the cases cited by appellant includes a review of the record for sufficient evidence to establish the similarity of the elements of the out-of-state and Texas offenses. See Griffith v. State, 116 S.W.3d 782 (Tex. Crim. App. 2003); Wieghat v. State, 76 S.W.3d 49 (Tex. App.-San Antonio 2002, no pet.); Price v. State, 35 S.W.3d 136 (Tex. App.-Waco 2000, pet. ref'd).
Footnote 2 Appellant does not argue that the elements of the Oregon sexual assault offense are substantially different from the penal code offenses listed in section 12.42. Accordingly, we do not address at length the similarity between the elements of the various offenses. See Rodriquez v. State, 227 S.W.3d 842, 846 n.1 (Tex. App.-Amarillo 2007, no pet.). However, even a cursory review of the relevant Oregon statute describing sexual abuse in the first degree establishes its elements are substantially similar to those of the Texas offense of indecency with a child. Compare Or. Rev. Stat. § 163.425 (1983) with Tex. Penal Code Ann. § 21.11 (Vernon 2003) (listed as comparable offense for out-of-state offense at Tex. Penal Code § 12.42(c)(2)(B)(ii)).