Cobourn, David v. State

• Court: Court of Appeals of Texas
• Decided: January 31, 2013
• Docket: 05-11-00173-CR
• Status: Published

Opinion

AIF1 I{NI; Opinion issued January 31, 2013

In The nitrt nf ipra1 FiftIi Jitrirt uf cxwi at 1a11a No. 05-1 1-001 73-CR

DAVID NEGUS COBOURN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F 10-58452-1

MEMORANDUM OPINION Before Justices Moseley. Francis, and Lang Opinion By Justice Francis

David Negus Cobourn appeals his conviction for evading arrest or detention after having

been convicted previously of the same offense. Appellant pleaded not guilty and requested a jury

trial. After finding appellant guilty, the jury assessed punishment, enhanced by two prior

convictions, at four years and six months in prison. In two issues. appellant claims the trial court

erred by failing to admonish him on the range of possible punishments on pleas of true to

enhancement allegations and the evidence is insufficient to connect him to the second prior

conviction. We affirm.

In his first issue, appellant claims the trial court failed to admonish him on the applicable

range of punishment on his pleas ot’true to the two enhancement paragraphs. He argues his pleas were theretbre involuntary and the error was not harmless because nothing in the record indicates

he was aware of the punishment range.

ihe lexas (ode ot Criminal Procedure requires a trial court to admonish a (ielendant in a

hlony case on the applicable range of punishment hefire accepting a plea ol guilty or nob

contendere: it does not, however. apply to a plea of true to an enhancement paragraph. See TEx.

CODE CRIM. PROC. ANN. art. 26.13( )(1) (West Supp. 2012); Sylvester r Slate, 615 S.W.2d 734,

736—37 (Tex. Crim. App. [Panel Op.j 1981). An admonishment on the punishment range for a plea

of true is discretionary with the trial court and is not required under Texas law. Harvey v. State, 611

S.W.2d 108, 112 (Tex. Crim. App. 1981) (op. on reh’g).

Appellant pleaded not guilty to the primary offense in this case: therefore, he was not given

the admonishments associated with entering a guilty plea. After the jury Found him guilty, appellant

then pleaded true to the two enhancements. No error resulted from the trial court’s failure to

admonish appellant with respect to the punishment range associated with his pleas of true. and his

pleas were not involuntary.

Furthermore, we note that, after appellant was arraigned, defense counsel informed the trial

court appellant’s request for a ninemonth plea oiler had been denied. The trial court replied, “Okay.

And [the range is] 2 to 10?” Defense counsel responded that it was. And during voir dire, both

defense counsel and the State referred to appellant’s punishment range being potentially two to ten

years because of the two prior tilony conviction enhancements. Thus, appellant knew the enhanced

range of punishment before pleading true to the enhancement paragraphs. We overrule appellant’s

first issue.

In his second issue. appellant claims the evidence is insufficient to connect him to the second

prior conviction. Appellant argues the State was required to prove the second prior conviction because his picas of true were involuntary.

It is the States burden to prose an ii leged prior conviction was a final conviction and the

defendant was the person previously convicted of that offense. Wilson v. State. 671 SW2d 524,

525 (Tex. Crim. App. 1984). lithe defendant pleads true to the enhancement paragraph, the State’s

burden of proof is satisfied. Id.

Because appellant voluntarily pleaded true to the two enhancement paragraphs, the States

burden was met. Appellants complaint to the contrary lacks merit. We overrule appellant’s second

issue.

We affirm the trial court s judgment.

/Molly Francis/ MOLLY FRANCIS JUSTICE

Do Not Publish TEX. R. Aip. P. 47 1101 73F.U05

—3— _niirt iii ipra1 Fiftii 1itrirt uf rxai at 1a11a

JUDGMENT l)AVID NEGUS COI3OURN. Appellant Appeal from the Criminal District Court No. 2 of Dallas County. Texas. (Tr.Ct.No. F it)— No. 05-1 1-00173-CR V 58452-I). Opinion delivered by Justice Francis, THE STATE OF TEXAS, Appellee Justices Moseley and Lang participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered January 31. 2013