1 John T. B oyd, C hief J ustic e (R et.), Se ven th C ourt o f Ap pea ls, sitting b y ass ignm ent. T EX . G OV ’ T

C ODE A NN . §75.002(a)(1) (Ve rnon Sup p. 2006). NO. 07-04-0100-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E JANUARY

23, 2007

______________________________ LELAND RAY

MILBURN, Appellant v. THE STATE OF TEXAS, Appellee

________________________________ FROM THE 3 1st DIST RICT COURT OF HEMPHIL L COUNTY; NO. 2533; HON. STEVEN R. EMMERT, PRESIDING

_______________________________

Opinion

_______________________________ Before QUINN, C.J., CAMPBELL, J., an d BOYD, S.J. 1 On June 16, 2005, we i ssued our opini on overrul ing appellan t’s two issues and affirming the trial court’s judg ment. The Texas Co urt o f Crim inal Appeals g ranted appellant’s petition for di scretionary review , found that the tri al court err ed in omitting from its jury c harge an ins truction on pr obation, and remanded the ca use to us to asses s harm.2 The convi cti on underl yi ng the present appeal occurred on Decem ber 19, 2003. One day earl ier , t hat

is, on December 18, 2003, appel lant had been convi cted of anot her fel ony. Thus, the f elony convi cti on that app ellant d isclos ed a t trial aros e at lea st two years earlier.

3 W e so concl ude because he had t he burden t o sati sfythe cri teri a o f art. 42 .12, § 4 a nd pro ve his entitlem ent to prob ation. T EX . C ODE C RIM . P ROC . A NN . art. 42.12, §(4)(e) (Vernon 2006). 2 The parties were afforded opportunit y to brief the issu e, and upon reading those briefs and the record, w

e find no harm and ag ain affirm the judg ment of the trial court. Charge error to w hich an objecti on wasmade requires reversal if itcaused "some harm" to the appe llant’s r ights. See Ngo v. State, 175 S.W.3d 738, 743-44(Tex . Cri m. App. 2005). Though an appellan t ha s no dut y to e stabl ish ha rm, Johnson v. State , 43 S.W.3d 1, 5 (Tex. C rim. App. 2001), h e nonetheless has the b urden 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. L EXIS 5555 (Tex. App. –Amarillo Aug ust 28, 1998, pet. ref’d) (not de signated for publ ication). Moreover , those finally convicted of a previous felony have no such entitlement. Shaffer v. Stat e , supra ; T EX . C ODE C RIM . P ROC . A NN . art. 42.12, §(4)(e) (

Vernon 2006) (obli gating thedefendantto apply for probation via a sworn motion stating that he had not previously been convicted of a felon y). Here, the record di scloses that appellant’s counsel asked appel lant at trial w hether

“ . . . prior

to July 1 3 th , 2001, had you ever been con victed of a felony?” Ap p ellant responded, “[y]es, sir.” 2 Appellant hav ing admitted to this felony convicti on, the burden lay with him to establish w hy it did not subsequentl y bar him fro m receivi ng probation in a later prosecution. 3 Yet, hecited us to nothing of record in attempt to meet t hat burden. Nor did our o wn revie w of th e rec ord u ncove r any su ch evi dence. Given thi s, we cannot but conclude that appellant fail ed to prove his entitlement to pr

obation. Hav ing failed in that3

regard, we must al so conclude tha t he could not have suffered some harm in t he trial court’s omit

ting an ins truction on pr obation from its j ury char ge. Accordingl y, we affirm the judgment of the trial cour t.

Brian Quinn Chief Justice Publish.