HOMER SALAZAR, JR., D/B/A NICOLES TRANSPORTATION, ET AL. v. SUNLINE COMMERCIAL CARRIERS, INC.--Appeal from County Court at Law No 2 of Cameron County

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Laws-info.com » Cases » Texas » 13th District Court of Appeals » 2005 » HOMER SALAZAR, JR., D/B/A NICOLES TRANSPORTATION, ET AL. v. SUNLINE COMMERCIAL CARRIERS, INC.--Appeal from County Court at Law No 2 of Cameron County

State: Texas

Court: Texas Northern District Court

Docket No: 13-04-00669-CV

Case Date: 08/31/2005

Plaintiff: HOMER SALAZAR, JR., D/B/A NICOLES TRANSPORTATION, ET AL.

Defendant: SUNLINE COMMERCIAL CARRIERS, INC.--Appeal from County Court at Law No 2 of Cameron County

Preview:Jerry Dean Foster v. State of Texas--Appeal from 339th District Court of Harris County
No. 04-01-00040-CR Jerry Dean FOSTER, Appellant v. The STATE of Texas, Appellee From the 339th Judicial District Court, Harris County, Texas Trial Court No. 831952 Honorable Jon Hughes, Judge Presiding Opinion by: Alma L. L pez, Justice Sitting: Phil Hardberger, Chief Justice Alma L. L pez, Justice Paul W. Green, Justice Delivered and Filed: February 13, 2002 AFFIRMED Appellant, Jerry Foster, was charged by indictment with the state jail felony of unauthorized use of a motor vehicle which was enhanced by two prior convictions for the same offense. A jury found appellant guilty. After pleading "not true" to the enhancement paragraphs in the indictment, the judge sentenced appellant to 8 years in the Institutional Division of the Texas Department of Corrections. Appellant argues that the evidence was legally insufficient to support his conviction. We overrule Foster's issues and affirm the judgment of the trial court. DISCUSSION This is appellant's third conviction for the offense of unauthorized use of a motor vehicle. Appellant was charged by indictment which was enhanced by two previous felony convictions. A finding of "true" to the enhancement paragraphs in the indictment upgraded the punishment for the offense to a second degree felony. The enhancement paragraph relevant to this appeal reads: Before the commission of the primary offense, and after the conviction in Cause No. 718815 was final, the Defendant committed the felony of unauthorized use of a motor vehicle and was finally convicted of that offense on November 30, 1998, in Cause No. 489784, in the 263rd District Court of Harris County, Texas. Both parties agree that the enhancement paragraph erroneously reversed the order of the convictions and listed the wrong date. Appellant's first previous conviction was in 1988, trial court cause number 489784, and his second previous conviction was in 1997, trial court cause number 718815. As a result, appellant argues that the evidence was legally insufficient to support his conviction because there were material variances between the allegations in the indictment and the evidence offered at trial. "It is well settled that it is not necessary to allege prior convictions for the purpose of enhancement with the same particularity which must be used in charging on the primary offense." Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986). The object of the doctrine of variance is to avoid surprise. See Plessinger v. State, 536 S.W.2d 380, 381 (Tex. Crim. App. 1976). A variance has to be both material and prejudicial to the defendant before a variance might

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be fatal and cause reversal. See Human v. State, 749 S.W.2d 832, 837 (Tex. Crim. App. 1988). "[F]or such variance to be material it must be such as to mislead the party to his prejudice." Plessinger, 536 S.W.2d at 381. The defendant has the burden of showing surprise or prejudice. See Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001). Appellant makes no claim in his brief that he was surprised or prejudiced by the variance. Instead, appellant requests that this court hold that the variance was a material variance regardless of prejudice; thereby disregarding his burden of proof. We refuse to do so. Appellant has failed to meet his burden of proof. Therefore, we overrule his first issue. In his second issue, appellant asserts that there was insufficient evidence to prove that his conviction in trial court cause number 489784 had become final. The State has the burden of proof as to prior convictions alleged for enhancement of punishment, and the standard of proof is beyond a reasonable doubt. Williams v. State, 899 S.W.2d 13, 14 (Tex. App.-San Antonio 1995, no writ) (citing Ex parte Augusta, 639 S.W.2d 481 (Tex. Crim. App. 1982)). Appellant argues that the State's evidence showed he filed a notice of appeal from the conviction, yet failed to demonstrate that the conviction was final through the issuance of a mandate. However, the State can prove the finality of a conviction through a mandate "or any manner of proof showing the disposition of the appeal." Coats v. State, 788 S.W.2d 674, 676 (Tex. App.--Corpus Christi 1990, writ ref'd). In this case, the State offered the opinion by the Fourteenth Court of Appeals that indicates the court withdrew the appeal at the request of the appellant and his counsel. Further, the appellate court ordered the appeal dismissed and directed the clerk of the court to issue a mandate of the court immediately. Therefore, the opinion is proof that the conviction became final. We overrule appellant's second issue.CONCLUSION Having overruled Foster's issues, we affirm the judgment of the trial court. Alma L. L pez, Justice DO NOT PUBLISH

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