FRANCISCO CASTIO BERBER, JR., Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed December 2, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01467-CR
 
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FRANCISCO CASTIO BERBER, JR., Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F08-71908-MK
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OPINION
 
Before Chief Justice Wright, Moseley, and Maloney   See Footnote 1 
Opinion By Justice Maloney
 
 
        The trial court convicted appellant of aggravated sexual assault on his plea of guilty and assessed a life sentence. In one point of error, appellant contends the trial court erred in finding appellant entered his plea of guilty knowingly and voluntarily under the due course of law clause of the Texas Constitution. We affirm the trial court's judgment.
BACKGROUND
 
        The State indicted appellant for aggravated sexual assault of the complainant, who he knew to be incapable of understanding, resisting, or preventing sexual assault. The complainant had reached the age of fifty, but because of medical procedures, she had the mental and physical development of a ten-year-old.
        In 2001, the complainant was taken to the emergency room because of vaginal bleeding. The on-duty physician suspected a malignancy and called in a Medical City Hospital gynecologic oncologist who discovered trauma. After the complainant's death, the autopsy revealed what the medical examiner classified as homicide. In 2007, while investigating the murder of complainant's mother, the detectives reopened the investigation into complainant's death. By then, D.N.A identified the semen found in the complainant as belonging to appellant.
        On appeal, appellant only challenges whether the trial court followed due course of law under the Texas Constitution. We need not recite the facts of this case, rather we address only if appellant preserved this issue for appeal.
TRIAL PROCEEDINGS
 
        The Grand Jury filed its indictment on May 27, 2008. The trial court ordered appellant be examined for competency in July 2008. The examining doctor submitted his report to the trial court finding appellant competent to stand trial. The record contains a document signed on August 20, 2008 by the State, appellant's trial attorney, and appellant. It recited that in exchange for appellant entering a plea of guilty, the State was open to punishment, but would recommend twenty-five years. This written document informed appellant of his right to a jury trial, to confront and examine witnesses, not to testify, and the range of punishment. Additionally, if convicted, the requirement to register as a sex offender. It also contained the statement that he entered his plea of guilty as charged in the indictment. On this same date, the trial court heard appellant's plea of guilty.
        At the plea hearing, the trial court admonished appellant of his rights. The trial court also inquired if appellant understood he was giving up those rights. Appellant confirmed that he understood all his rights and entered his plea “exactly as the offense is alleged.” The trial court did not make a finding of guilt and passed the case to “finalize the case.”
        On October 17, 2008, the trial court held a hearing wherein the appellant and five other witnesses testified-the gynecologic oncologist, the chief medical examiner, the complainant's neighbor, a police officer, and a homicide detective. The trial court adjourned the hearing and ordered a second competency exam with a different psychiatrist. On October 23, 2008, after appellant was again found to be competent, the trial court found appellant guilty and assessed punishment.
 
PRESERVATION OF ERROR
 
        Appellant relies on Pena v. State, 226 S.W.3d 634 (Tex. App.-Waco 2007), rev'd 285 S.W.3d 459 (Tex. Crim. App. 2009) to argue that Texas Constitution Article 1, Section 19-due course of law-provides greater protection than the United States Constitution's due process clause “in the context of a guilty plea.” Appellant contends the court of criminal appeals reversed “on other grounds [sic].” In fact, the court of criminal appeals reversed Pena on failure to preserve error. See Pena v. State, 285 S.W.3d 459, 465 (Tex. Crim. App. 2009). Here, appellant did not place the trial court “on notice of the specific legal theory” that he raises for the first time in his appeal. Appellant neither raised an issue in the trial court of whether appellant knowingly and voluntarily entered his plea of guilty in violation of the Texas Constitution's due course of law section nor did he distinguish the rights and privileges protected by the due course of law section of the Texas constitution from the rights and privileges afforded by the Fourteenth Amendment. Appellant failed to preserve his complaint for appellate review. See Id. at 464-65; Mendez v. State, 138 S.W.3d 334, 338 (Tex. Crim. App. 2004) (explaining that complaints about the voluntariness of a guilty plea are subject to the preservation of error requirements of rule of appellate procedure 33.1) We overrule appellant's sole point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          FRANCES MALONEY
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
 
Footnote 1 The Honorable Frances Maloney, Retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.