                                             NO. 07-04-0100-CR

                                      IN THE COURT OF APPEALS

                             FOR THE SEVENTH DISTRICT OF TEXAS

                                                 AT AMARILLO

                                                    PANEL E

                                        JANUARY 23, 2007
                                 ______________________________

                                         LELAND RAY MILBURN,

                                                                                 Appellant

                                                         v.

                                         THE STATE OF TEXAS,

                                                            Appellee
                               ________________________________


                FROM THE 31st DISTRICT COURT OF HEMPHILL COUNTY;

                       NO. 2533; HON. STEVEN R. EMMERT, PRESIDING
                             _______________________________

                                            Opinion
                                _______________________________

Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1

         On June 16, 2005, we issued our opinion overruling appellant’s two issues and

affirming the trial court’s judgment.               The Texas Court of Criminal Appeals granted

appellant’s petition for discretionary review, found that the trial court erred in omitting from

its jury charge an instruction on probation, and remanded the cause to us to assess harm.



         1
          John T. B oyd, C hief Justice (R et.), Se venth Court o f Appea ls, sitting by assignm ent. T E X . G O V ’T
C ODE A N N . §75.002(a)(1) (Ve rnon Sup p. 2006).
The parties were afforded opportunity to brief the issue, and upon reading those briefs and

the record, we find no harm and again affirm the judgment of the trial court.

         Charge error to which an objection was made requires reversal if it caused "some

harm" to the appellant’s rights. See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim.

App. 2005). Though an appellant has no duty to establish harm, Johnson v. State, 43

S.W.3d 1, 5 (Tex. Crim. App. 2001), he nonetheless has the burden to prove his

entitlement to probation. Baker v. State, 519 S.W.2d 437 (Tex. Crim. App. 1975); Shaffer

v. State, 07-97-0089-CR, 1998 Tex. App. LEXIS 5555 (Tex. App.–Amarillo August 28, 1998,

pet. ref’d) (not designated for publication). Moreover, those finally convicted of a previous

felony have no such entitlement. Shaffer v. State, supra; TEX . CODE CRIM . PROC . ANN . art.

42.12, §(4)(e) (Vernon 2006) (obligating the defendant to apply for probation via a sworn

motion stating that he had not previously been convicted of a felony).

         Here, the record discloses that appellant’s counsel asked appellant at trial whether

“ . . . prior to July 13th, 2001, had you ever been convicted of a felony?” Appellant

responded, “[y]es, sir.”2 Appellant having admitted to this felony conviction, the burden lay

with him to establish why it did not subsequently bar him from receiving probation in a later

prosecution.3        Yet, he cited us to nothing of record in attempt to meet that burden. Nor

did our own review of the record uncover any such evidence. Given this, we cannot but

conclude that appellant failed to prove his entitlement to probation. Having failed in that


         2
          The conviction underlying the present appeal occurred on Decem ber 19, 2003. One day earlier, that
is, on December 18, 2003, appellant had been convicted of another felony. Thus, the felony conviction that
app ellant disclos ed a t trial arose at lea st two years earlier.

         3
          W e so conclude because he had the burden to satisfy the criteria of art. 42 .12,             §4 and   pro ve his
entitlem ent to prob ation. T EX . C ODE C RIM . P R O C . A N N . art. 42.12, §(4)(e) (Vernon 2006).

                                                           2
regard, we must also conclude that he could not have suffered some harm in the trial

court’s omitting an instruction on probation from its jury charge.

       Accordingly, we affirm the judgment of the trial court.




                                                 Brian Quinn
                                                 Chief Justice

Publish.




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