Emanuel Randle v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-98-096-CR

EMANUEL RANDLE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 97-428-C

O P I N I O N

Emanuel Randle was convicted of burglary of a habitation after entering a plea of guilty. See Tex. Pen. Code Ann. 30.02 (Vernon 1994 & Supp. 1999). He was sentenced to 15 years imprisonment. He appeals, presenting two issues for review. Both issues complain of untimely notice of the State s intent to use a prior conviction to enhance his punishment. Finding that Randle s entry of a guilty plea waived his complaint, we will affirm the judgment.

PROCEDURAL HISTORY

Randle s burglary charge was scheduled to be tried before a jury on Monday, January 20, 1998. On this date, Randle entered a plea of guilty. On the Friday immediately preceding this date, Randle received the State s notice of intent to use a prior conviction for enhancement purposes. He complains that this insufficient notice deprived him of due process because he did not have an adequate opportunity to contest the validity of the prior conviction.

When an open plea of guilty or nolo contendere is made, all non-jurisdictional defects occurring prior to the plea are waived. Jack v. State, 871 S.W.2d 741, 744 (Tex. Crim. App. 1994); Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim. App. 1972). This includes claimed deprivations of federal due process. Id.

After his objection to the untimely nature of the notice was overruled, Randle entered a plea of guilty and a plea of true to the enhancement allegation without condition. Nearly two months later, at the hearing on punishment, Randle reurged his objection and requested permission to appeal the court s ruling. This was too late. // Randle knowingly and voluntarily entered his plea of guilty and waived any error concerning the timeliness of the notice which occurred prior to the entry of his plea. Issue one is overruled. //

We leave Randle s second issue for a habeas corpus proceeding, where the record can be developed on any claim of ineffective assistance of counsel he might assert.

The judgment is affirmed.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed March 3, 1999

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