                                   NO. 07-12-0106-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL B

                                  SEPTEMBER 20, 2012


                               MICHAEL ALLEN CASEL,

                                                                Appellant
                                           v.

                               THE STATE OF TEXAS,

                                                                Appellee
                         _____________________________

            FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

         NO. 62,659-E; HONORABLE DOUGLAS WOODBURN, PRESIDING


                                Memorandum Opinion


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Today we are being asked if the evidence was sufficient to prove the allegations

contained in an enhancement paragraph. The latter was used to elevate the burglary

charge (to which appellant pled guilty) from a felony of the second degree to one of the

first degree. Because appellant, Michael Allen Casel, believed that the State failed to

present sufficient evidence to prove the enhancement allegation, he could not be

convicted of the higher felony.    Furthermore, the State allegedly failed to carry its

burden by omitting to tender evidence that the prior offense resulted in appellant (who
was a juvenile) being committed to the Texas Youth Commission. We overrule the

issue and affirm.

        In pleading guilty to the underlying offense (i.e. burglary of a habitation),

appellant was informed by the trial court that the State was also attempting to enhance

the offense via his prior conviction “of [the] felony offense of aggravated robbery in

Cause Number 9236-J#1, County Court at Law Number 1, in Potter County, Texas, on

January 14th of 2009.” The court then asked appellant: “As to the allegation that you

were finally convicted of that offense, how do you plead, true or untrue?” (Emphasis

added). Appellant answered, “True.” Thereafter, the trial court not only found “that the

allegation as to the prior conviction [was] true” but also found the evidence sufficient to

establish guilt for the underlying burglary beyond reasonable doubt and accepted the

State’s recommendation to defer appellant’s adjudication of guilt. 1

        Generally, prior felony convictions may be used to enhance the punishment

applicable to a subsequent offense. See Miles v. State, 357 S.W.3d 629, 634 (Tex.

Crim. App. 2011). However, the prior conviction must be final. Beal v. State, 91 S.W.3d

794, 796 (Tex. Crim. App. 2002). Moreover, an adjudication by a juvenile court that a

child engaged in delinquent conduct constituting a felony for which he was committed to

the Texas Youth Commission is considered a “final felony conviction” for purposes of

enhancement. TEX. PENAL CODE ANN. § 12.42(f) (West Supp. 2012). To the extent that

appellant pled “true” to the trial court’s question about his being “finally convicted” of

aggravated assault in cause number 9236-J#1, appellant implicitly admitted to both of

        1
          The dispute before us arose after the State moved to have appellant’s guilt adjudicated. The
trial court granted that motion, adjudicated appellant guilty of burglarizing a habitation, and sentenced him
to 25 years in prison.

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the elements for a final conviction as defined in § 12.42(f). That is, if the prior juvenile

adjudication was not a felony and if he had not been committed to the Texas Youth

Commission then he could not have legitimately pled true to the matter being a final

conviction. See Menson v. State, No. 07-09-0221-CR, 2011 Tex. App. LEXIS 1123, at *4

(Tex. App.–Amarillo February 16, 2011, pet. ref’d) (not designated for publication)

(involving a prior offense committed when the offender was a juvenile and holding that

the appellant’s “plea of true to the enhancement paragraph is alone sufficient to show

that he had a prior felony conviction”). And, nothing of record affirmatively shows either

that appellant was not committed to the Youth Commission or that the enhancement

allegation was otherwise untrue. See Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim.

App. 2006) (stating that a plea of true alone is not sufficient to prove the enhancement

allegation when the record affirmatively reflects that the enhancement is improper).

       Accordingly, the judgment is affirmed.



                                                 Brian Quinn
                                                 Chief Justice

Do not publish.




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