Raymond Gonzalez v. State ( 2006 )

                                    NUMBER 13-05-115-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

RAYMOND GONZALEZ,                                                                   Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

                    On appeal from the 347th District Court

                                        of Nueces 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, Raymond Gonzalez, was sentenced to life imprisonment in the Texas Department of Criminal Justice after being found guilty of murder and engaging in organized criminal activity.  On appeal, appellant argues that he was denied due process of law as guaranteed by the Fifth and Fourteenth Amendments.  Appellant contends that the trial court relieved the State of its burden of proving the enhancement allegations of the State=s indictment beyond a reasonable doubt by instructing the jury to find the enhancement allegations true after appellant pleaded true.    We affirm.

I. BACKGROUND

 On April 12, 2002, a jury found appellant guilty of murder and engaging in organized criminal activity.  Appellant had previously been convicted of the unauthorized use of a motor vehicle and aggravated assault, which were presented as enhancement allegations in the State's indictment.  The jury found the enhancement allegations to be true and assessed appellant's punishment at life imprisonment.  This Court affirmed appellant's conviction but reversed the judgment for error in the punishment phase based on improper closing arguments made by the State during the punishment phase of the trial, and we remanded the case for a new trial on punishment.  See Gonzalez v. State, 115 S.W.3d 278, 286 (Tex. App.BCorpus Christi 2003, pet. ref'd).

During a new trial on punishment, appellant pleaded Atrue@ to the enhancement paragraphs alleged in the indictment, i.e., unauthorized use of a motor vehicle and aggravated assault.  The State presented the same evidence in support of the enhancement allegations that had been used in the first trial.  In the punishment charge, the trial court instructed the jury to find the enhancement allegations true because appellant had pleaded Atrue@ at the outset of the second trial on punishment.  Thereafter, the jury sentenced appellant to life imprisonment.

II. ENHANCEMENT

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 Atrue@ to enhancement allegations, removes this burden from the State.  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.).  A plea of Atrue@ to an enhancement allegation is different than a plea of Aguilty@ or Anot guilty@, as a plea of Aguilty@ or Anot guilty@ does not constitute evidence, while a plea of  Atrue@ constitutes evidence and is sufficient proof to support the finality of the prior conviction alleged for enhancement.  See Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984); Skillern v. State, 890 S.W.2d 849, 882 (Tex. App.BAustin 1994, pet. ref=d). 

During the punishment phase, the indictment, which contained the enhancement  allegations, was read into the record.  Appellant pleaded Atrue@ to the enhancement allegations.^[1]  By pleading Atrue@, appellant removed the burden of proof from the State; therefore, the trial court correctly instructed the jury to find the enhancement allegations true.  See Urbano v. State, 808 S.W.2d 519, 523 (Tex. App.BHouston [14th Dist.] 1991, no pet.).  We conclude appellant=s due process rights were not violated by the trial court=s instructions to the jury.  We overrule appellant=s sole issue.

III. CONCLUSION

The judgment of the trial court is affirmed. 

Rogelio Valdez,

Chief Justice

Do not publish.

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

Memorandum Opinion delivered and filed

this 2nd day of March, 2006.

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^[1] We note that appellant was not admonished in regards to his plea of Atrue.@ However, as a matter of law, it is unnecessary to admonish an accused who pleads Atrue@ or Aguilty@ to enhancement convictions alleged in the indictment.  Harvey v. State, 611 S.W.2d 108, 112 (Tex. Crim. App. 1981). This is discretionary with the trial court.  Id.