DARRELL DEXTER PARKER, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed December 10, 1996
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-95-00947-CR
No. 05-95-00948-CR
............................
DARRELL DEXTER PARKER, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the 283rd District Court
Dallas County, Texas
Trial Court Cause No. F94-44321-WT and F94-43163-VT
..............................................................
OPINION PER CURIAM
Before Justices Morris, James, and Wolfe
        Darrell Dexter Parker appeals two convictions for unlawful delivery of a controlled substance. In appellate cause number 05-95-00947-CR, the jury convicted appellant of delivering four grams or more, but less than 200 grams, of cocaine and assessed punishment at confinement in the state penitentiary for twenty-five years. In appellate cause number 05-95-00948-CR, the jury convicted appellant of delivering one gram or more, but less than four grams, of cocaine; enhanced by one prior felony, the jury assessed punishment at confinement for twenty years. Concluding that the appeals are frivolous, we affirm.
        Pamela Marie Springer testified that in 1994 she was an undercover narcotics officer for the Dallas Police Department. Springer testified that she purchased cocaine from appellant on November 4, 1994, and again on November 8, 1994. She identified the substance in State's exhibit one as the cocaine she purchased from appellant on November 4, 1994. She further identified the substance in State's exhibit two as the cocaine she bought from appellant on November 8, 1994. John Lomonte, a supervisor of the drug analysis section of the Dallas County forensic laboratory, testified that the substance in State's exhibit one weighed 2.2 grams and was between eighty-three and eighty-five percent pure cocaine and that the substance in State's exhibit two weighed 9.4 grams and was eighty-two percent pure cocaine.
        Appellant's attorney filed a brief in which he concluded that the appeals were wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. Appellant did not file a pro se brief.
        In his brief, counsel stated that there were a few arguable points of error but concluded none of them had any merit. In the first arguable point of error, counsel notes that appellant moved to be punished for a state jail felony in the event the jury found that he delivered less than one gram of cocaine. Tex. Health & Safety Code Ann. § 481.112(b) (Vernon Supp. 1997). If appellant were convicted of a state jail felony, appellant argued that the trial court should strike the enhancement paragraph. See Tex. Penal Code Ann. § 12.35 (Vernon 1994); State v. Mancuso, 919 S.W.2d 86, 88-90 (Tex. Crim. App. 1996). Because the jury found appellant delivered more than one gram of cocaine for each offense, these provisions are inapposite. We agree with counsel that any point of error based upon the state jail felony statute would be meritless.
        In the second arguable point of error, counsel states that there was an untimely disclosure of the confidential informant's identity; however, because appellant did not move for a continuance based upon the allegedly untimely disclosure, counsel concluded that the error, if any, was waived. Our review of the record shows that trial counsel and appellant decided to proceed without a continuance and without the informant; on the record, trial counsel stated that he conferred with appellant and made him "aware of the full situation." On the record, when asked by the trial judge, appellant agreed that he wanted to proceed without a continuance and without the informant. We agree with appellate counsel that any error associated with the untimely disclosure of the confidential informant's identity was waived. See Quebodeaux v. State, 890 S.W.2d 532, 537 (Tex. App.--Beaumont 1994, pet. ref'd).
        Counsel also notes that the indictment alleges that the name of the person to whom appellant delivered the cocaine was "P.M. Stanley," but that the evidence showed that the person's real name was "Pamela Marie Springer." Counsel, however, concluded that the variance was permissible and, in any event, not reversible error. Our review of the indictments shows that they identified the person to whom appellant delivered the cocaine as "P.M. Springer," not "P.M. Stanley." We conclude that the reference to "Stanley" in counsel's brief was a typographical error and that counsel's focus was actually upon the use of the initials "P.M." instead of "Pamela Marie." We agree with counsel that the use of the initials "P.M." is immaterial. An indictment is sufficient if it states one or more of the initials of the given name and the surname. Act of May 27, 1965, 59th Leg., R.S., ch. 722, § 1, 1965 Tex. Gen. Laws 317, 317, amended by Act of May 27, 1995, 74th Leg., R.S., ch. 830, § 1, 1995 Tex. Gen. Laws 4214, 4214 (current version at Tex. Code Crim. Proc. Ann. art. 21.07 (Vernon Supp. 1997)) FN:1 ; Chambless v. State, 776 S.W.2d 718, 720-21 (Tex. App.--Corpus Christi 1989, no pet.). "P.M. Springer" corresponds to "Pamela Marie Springer."         We also note that the indictment in appellate cause number 05-95-00947-CR alleges that appellant committed the offense of delivering four grams or more, but less than 200 grams, of cocaine on or about November 4, 1994; the evidence, however, shows that appellant committed that offense on November 8, 1994. The State does not have to prove the date alleged in the indictment so long as the proof at trial shows that the defendant committed the offense within the applicable limitations period. Lemell v. State, 915 S.W.2d 486, 489 (Tex. Crim. App. 1995). Appellant committed the offense within the applicable three-year limitations period. Act of May 23, 1991, 72nd Leg., R.S., ch. 565, § 6, 1991 Tex. Gen. Laws 2003, 2004, amended by Act of May 24, 1995, 74th Leg., R.S., ch. 476, § 1, 1995 Tex. Gen. Laws, 3195, 3195 (current version at Tex. Code Crim. Proc. Ann. art. 12.01(5) (Vernon Supp. 1997)). The variance in the alleged date of the offense is, therefore, immaterial.
        We have reviewed the record and counsel's brief. We agree the appeals are frivolous and without merit. We find nothing in the record that might arguably support the appeals.
        We affirm the trial court's judgments.
 
                                                          PER CURIAM
 
Do Not Publish
Tex. R. App. P. 90
 
 
FN:1 Before September 1, 1995, article 21.07 read, in pertinent part, "it shall be sufficient to state one or more of the initials of the Christian name and the surname." Effective September 1, 1995, the word "Christian" was deleted and the word "given" was inserted in its place. The trial judge signed appellant's judgment on June 29, 1995.
File Date[12-10-96]
File Name[950947F]