                                          NO. 07-09-0221-CR

                                    IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                 PANEL C

                                         FEBRUARY 16, 2011

                               ______________________________


                                   KALMINE SHANELL MENSON,

                                                                          Appellant
                                                     v.

                                       THE STATE OF TEXAS,

                                                                          Appellee
                               _______________________________

                FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

                         NO. 19,085-A; HON. HAL MINER, PRESIDING
                            _______________________________

                                     Memorandum Opinion
                               _______________________________

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

      Kalmine Shanell Menson (appellant) appeals the punishment portion of his

conviction for aggravated assault.             Through one issue, appellant contends that the

evidence is legally insufficient to support the enhancement paragraph. We affirm.

      Appellant was charged with aggravated assault, enhanced. He pled guilty and

was placed on six years deferred adjudication probation. Subsequently, the State filed

a motion to adjudicate appellant’s guilt. At the hearing, appellant entered pleas of not
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          Senior Justice John T. Boyd, retired, sitting by assignment.
true to the allegations contained in the motion. Evidence was presented by both the

State and appellant after which the trial court adjudicated appellant guilty. Appellant

appeals this determination.

      Initially, appellant’s counsel filed an Anders brief, along with a motion to

withdraw. This court, in an opinion dated February 18, 2010, granted the motion to

withdraw and abated the cause back to the trial court for appointment of new counsel.

New counsel was directed to file a brief wherein the following areas of concern were to

be addressed: (1) did the trial court err by not taking a plea to the enhancement

allegation; (2) did the trial court err by not making a finding of true to the enhancement

allegation; (3) was any implied finding of true to the enhancement allegation supported

by legally and factually sufficient evidence; and (4) was the error, if any, harmless?

New counsel filed a brief addressing these areas. Furthermore, counsel pointed out

that this court did not have the benefit of the record of the original plea hearing.

According to that record, the trial court admonished appellant as follows: “[Appelllant],

you are charged by an information . . . what would normally be a second-degree felony

of aggravated assault with a deadly weapon, but . . . in the information there’s an

allegation of a previous conviction in Tarrant County, Texas, that enhances the

punishment making it a first-degree felony. Do you understand the charge?” Appellant

stated that he did.    The court further admonished appellant about the range of

punishment for both a second degree felony and a first degree. Next, the trial court

asked appellant how he was pleading to the information and appellant pled guilty.

Furthermore, the clerk’s record contained a judicial confession wherein appellant

confessed to the charge contained in the information and the enhancement. Moreover,

the trial court reviewed the judicial confession with appellant and questioned him as to

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his understanding of the confession and that he was admitting to everything contained

in the information.      Specifically, the court asked appellant if he had “read the

enhancement paragraph wherein it says that in 1998, you were convicted in Tarrant

County, Texas, in the district court there of aggravated robbery,” and appellant

answered in the affirmative and then pled true to the enhancement.

       Appellant, in his brief, admits that all potential areas raised by this court have

been addressed except for the fact that appellant’s prior conviction was as a juvenile

and as such is barred from use as an enhancement. This is so according to appellant

because juvenile convictions committed prior to 1996 are statutorily barred from such

use. And, even though the enhancement paragraph stated the conviction occurred in

1998, nothing of record shows that the offense had not been committed in 1996.

Therefore, the State failed to prove this element.

       However, appellant pled true to the enhancement paragraph. Appellant’s plea of

true to the enhancement paragraph is alone sufficient to show that he had a prior felony

conviction. See Dinn v. State, 570 S.W.2d 910, 915 (Tex. Crim. App. 1978); Hall v.

State, 137 S.W.3d 847, 856 (Tex. App.–Houston [1st Dist.] 2004, pet. ref’d). Therefore,

we conclude that appellant's plea of true precludes his complaint about the insufficiency

of the evidence to establish his enhancement paragraph.          See Dinn v. State, 570

S.W.2d at 915; Hall v. State, 137 S.W.3d at 856.

       Accordingly, we affirm the judgment of the trial court.



                                                  Per Curiam

       Do not publish.



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