JAMES MONROE JACKSON, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed November 14, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-00629-CR
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JAMES MONROE JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
 
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On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F88-93076-SI
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OPINION PER CURIAM
Before Justices Whitham, Rowe, and Whittington
        James Monroe Jackson appeals his conviction for burglary of a building. Punishment, enhanced by a prior conviction, was assessed at forty years and one day confinement and a $5,000 fine.
        Appellant's attorney has filed a brief in which appellant's attorney has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). A copy of counsel's brief has been delivered to appellant, and appellant has been advised that he would be given the opportunity to examine the appellate record and that he had a right to file a pro se brief. Appellant has filed a pro se brief in which he raises two points of error, claiming that: (1) he did not receive effective assistance of counsel; and (2) the State's argument at the close of the punishment phase of trial constituted reversible error. We overrule both points and affirm the judgment of the trial court.
        In appellant's first point of error, appellant claims that he was denied effective assistance of counsel. Appellant has raised claims stemming both from the guilt-innocence and the punishment phase of trial. Our review of appellant's claims arising from the guilt-innocence phase is controlled by the standard articulated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by this State in Hernandez v. State, 727 S.W.2d 53, 57 (Tex. Crim. App. 1986). Appellant must first demonstrate that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. He must then show that, but for counsel's errors, the result of the proceeding would likely have been different. Strickland, 466 U.S. at 694; Hernandez, 726 S.W.2d at 55.
        The first alleged error of counsel was his failure to call appellant's parole officer. Appellant was convicted of the burglary of Studebaker's, a local nightclub. He testified on his own behalf, claiming that he had gone to Studebaker's to apply for employment. He now claims that counsel should have called his parole officer to corroborate his story. However, there is no evidence in the record before us that the parole officer would, in fact, have corroborated appellant's story. Claims of ineffectiveness must be firmly founded in the record. Ex parte Ewing, 570 S.W.2d 941, 943 (Tex. Crim. App. [Panel Op.] 1978). It is conceivable that counsel decided not to call the parole officer as a matter of trial strategy; for instance, the parole officer may not have corroborated appellant's story. Given the strong presumption that counsel's representation was adequate, this Court will not inquire into matters of trial strategy unless from all appearances there still is no plausible basis in strategy or tactics for counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex. Crim. App. [Panel Op.] 1981). We cannot say, based on the record before us, that counsel erred in not calling appellant's parole officer.
        Appellant's claims concerning the punishment phase of the trial must be viewed from the totality of the representation; the second prong of Strickland is not applicable. Ex parte Walker, No. 70,710, slip op. at 7 (Tex. Crim. App. September 27, 1989) (not yet reported); Ex parte Cruz, 739 S.W.2d 53, 58 (Tex. Crim. App. 1987). Counsel's effectiveness is not dependent on any isolated acts or omissions. Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986). Nonetheless, appellant raises four instances in which he believes counsel erred. Two of his claims relate to his plea on the enhancement paragraph. First, he claims that his attorney failed to object to the enhancement paragraph; second, he claims that counsel caused him to enter a plea of "true" to the objectionable enhancement paragraph. The enhancement paragraph alleged that appellant previously had been convicted of theft in Cause No. F85-85763-Q; the pen packet introduced into evidence disclosed that he had been convicted in Cause No. F85-85763-KQ.
        Although appellant couches his claim in terms of a failure to object, he is actually arguing that there was a fatal variance between the allegation in the indictment and the proof at trial and that counsel was ineffective for failing to raise this variance. In addition, he claims that counsel was ineffective for his advice to appellant that he plead "true" notwithstanding the variance. We disagree. In alleging a prior conviction to enhance punishment, a variance between an allegation of the indictment and proof is a material and fatal flaw only if it would mislead a defendant to his prejudice. Hall v. State, 619 S.W.2d 156, 157 (Tex. Crim. App. [Panel Op.] 1980). The court of criminal appeals has found that a variance in cause numbers does not, in and of itself, mislead a defendant to his prejudice. See Cole v. State, 611 S.W.2d 79, 82 (Tex. Crim. App. [Panel Op.] 1981); see also Plessinger v. State, 536 S.W.2d 380, 381 (Tex. Crim. App. 1976) (variance between allegation of "State of Texas" as prosecuting authority, and proof of "State of Arizona" held not fatal). We conclude that the variance in the present cause is not material and, as a result, not fatal. We further conclude that counsel was not ineffective for failing to raise this matter.
        Appellant also complains that counsel was ineffective for failing to object to the introduction of State's Exhibits Nos. 26, 27, and 28, pen packets for previous convictions. In each of the previous convictions, appellant was placed on probation, which was later revoked; the orders revoking each recite that appellant violated the terms and conditions of his probation in the following respect:
    Commit no offense against the laws of this or any other state of the United States, and do not possess a firearm during the term of probation;...
Appellant claims that the recitation that he violated the terms and conditions of his probation by either committing an offense or possessing a firearm constituted evidence of an extraneous offense and is inadmissible under section 3 of article 37.07 of the Code of Criminal Procedure.
        At the punishment stage of trial, the State is entitled to introduce into evidence the prior criminal record of the accused; the term "prior criminal record" means final convictions in a court of record, probated or suspended sentences, or any final conviction material to the offense charged. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 1989). The State may show that probation was revoked; however, it may not show the details of the offense that was the basis for the revocation. Cliburn v. State, 661 S.W.2d 731, 732 (Tex. Crim. App. 1983). A recitation that simply shows which condition of probation was violated does not constitute impermissible evidence of an extraneous offense. Thompson v. State, 752 S.W.2d 12, 15 (Tex. App.-- Dallas 1988, pet. granted). Since the pen packets were not objectionable, counsel did not err in failing to object to their admission.
        We have also conducted our own examination of the record. Counsel filed numerous motions on behalf of appellant. He vigorously cross-examined the State's witnesses, and presented appellant on his own behalf, presenting a strong defensive position on the issue of intent. At the punishment phase of trial, he presented testimony of appellant's mother and father. He also made a strong closing argument to the jury, both at the guilt-innocence and punishment phases of trial. We cannot say, based on the record, that appellant was denied effective assistance of counsel. Appellant's first pro se point of error is overruled.
        In appellant's second point of error, he complains of the following argument by the State at the punishment phase of trial:
    . . . There was another chance that he had despite the different things, in addition to all the things his mother tried to do for him. So, what happens? Well, he gets caught carrying a firearm and his probation is revoked . . .
(Emphasis added.)
        The State may comment on and draw reasonable deductions from evidence which has been properly admitted. Denison v. State, 651 S.W.2d 754, 761 (Tex. Crim. App. 1983); Frazier v. State, 760 S.W.2d 334, 335 (Tex. App.-- Texarkana 1988, no pet.). The State's argument was a reference to the pen packets which, as we previously discussed, were properly admitted. However, the orders revoking probation did not unequivocally state that appellant's probation was revoked for possession of a firearm. It was a reasonable deduction from the evidence that his probation was revoked for either possession of a firearm or commission of an offense; however, it was not reasonable to deduce that it was one basis rather than the other. As a result, we conclude that the State's argument constituted error.
        However, we also conclude that the error was harmless. In order for a jury argument to constitute reversible error, it must be extreme or manifestly improper, or inject new and harmful facts into evidence. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). While the State's argument may not have been entirely proper, there was evidence to show that although appellant had been given many chances, he had instead chosen to violate his probation by either breaking the law or possessing the firearm. Thus, the State's argument that appellant had possessed a firearm did not constitute new evidence. In addition, the record reflects that appellant had six prior convictions at the time of the trial. In the present cause, appellant attempted to burglarize a small nightclub, and injured an employee in the course of the offense. Evidence was introduced showing that for nearly four years prior to the current offense, appellant had engaged in criminal activity of one sort or another. We cannot conclude that the State's argument constituted reversible error. Appellant's second pro se point of error is overruled.
        The judgment of the trial court is affirmed.
                                                  PER CURIAM
 
Do Not Publish
Tex. R. App. P. 90
 
880629F.U05
 
 
File Date[11-14-89]
File Name[880629F]