MARK ANTHONY HUMBLE v. THE STATE OF TEXAS--Appeal from 24th District Court of Victoria County

   NUMBER 13-05-214-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

MARK ANTHONY HUMBLE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 24th District Court

of Victoria County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Rodriguez and Garza

   Opinion by Chief Justice Valdez

Appellant, Mark Anthony Humble, appeals from his conviction for aggravated assault, see Tex. Pen. Code Ann. ' 22.02 (Vernon Supp. 2005), arguing that the trial court erred in finding the indictment=s enhancement paragraph to be true and accordingly assigning him a greater range of punishment. We affirm.

Background

Humble was charged with aggravated assault. The indictment against him included the following paragraph: Aprior to the commission of the aforesaid offense, on the 24th day of May, 1991, in cause numbered 87-5-12,751, in the 24th Judicial District Court of Victoria County Texas, the defendant was convicted of the felony of Burglary of a Habitation.@

After a jury found Humble guilty, Humble elected to have the court assess punishment. The trial judge read the indictment aloud, discussed the implications of pleading Atrue@ to the enhancement paragraph with Humble, and explicitly asked:

Do you understand that by entering a plea of true, you may have relieved the burden of the State in proving those elements and the State then chose not to put on any evidence in the case of that prior conviction? . . . Understanding that and the change in the range of punishment, do you then still wish to persist in your plea of true to that enhancement paragraph?

Humble answered in the affirmative to both questions, and the judge accepted his plea of true without having the State provide any further evidence on the prior conviction.

Humble now argues on appeal that the trial court erred by accepting his plea of true, given that he had not identified the prior conviction with specificity and that the State failed to provide any evidence of the prior conviction.

Enhancement

Allegations of error in an indictment are reviewed de novo. See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). The State has the burden of proof as to the allegations contained in the enhancement paragraphs of an indictment. Spiers v. State, 552 S.W.2d 851, 852 (Tex. Crim. App. 1977). This includes the burden to show the prior conviction alleged is a final conviction. See id.

However, a defendant, by pleading "true" to enhancement allegations, removes the burden from the State to prove that the prior conviction was a final conviction under the law. See Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981); Kent v. State, 879 S.W.2d 80, 83 (Tex. App.BHouston [14th Dist.] 1994, no pet.). This is because a plea of "true" to enhancement allegations is different from a plea at the guilt/innocence stage of the trial. Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984). A plea of Aguilty@ or Anot guilty@ does not constitute evidence, whereas a plea of "true@ to an enhancement allegation constitutes sufficient evidence to support the finality of the prior conviction alleged for enhancement. See id. at 526; Skillern v. State, 890 S.W.2d 849, 882 (Tex. App.BAustin 1994, pet. ref'd). Under such circumstances, an accused cannot be heard to complain on appeal that the evidence is insufficient. See Skillern, 890 S.W.2d at 882. The issue is resolved by the plea. Harvey, 611 S.W.2d at 111.

Here, the trial court described the specific enhancement offense, including the cause number and judicial district, from the indictment, and Humble acknowledged that he was freely pleading Atrue@ to the allegation that he had in fact committed this offense. This plea, coupled with the judicial admonishments establishing the plea=s veracity, is sufficient to serve as evidence of the enhancement offense. See Wilson, 671 S.W.2d at 526; Skillern, 809 S.W.2d at 882. The lack of additional specificity about the prior offense by Humble and the absence of additional evidence by the State does not alter the effect of Humble=s plea in providing sufficient evidence.

Humble=s issue is overruled, and we affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P.47.2(b).

Memorandum Opinion delivered and filed

this 9th day of February, 2006.