EARL JAMES HUFF, JR., Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed September 25, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-00698-CR
No. 05-88-00699-CR
No. 05-88-00700-CR
............................
EARL JAMES HUFF, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
.................................................................
On Appeal from the 195th District Court
Dallas County, Texas
Trial Court Cause No. F88-72390-QN
Trial Court Cause No. F88-72391-QN
Trial Court Cause No. F88-72392-QN
.................................................................
O P I N I O N
Before Justices Whitham, Baker and Ovard
Opinion By Justice Whitham
        Appellant appeals three convictions for robbery following appellant's plea of not guilty. In addition, appellant entered pleas of guilty to a fourth robbery charge and a plea of guilty to unlawful possession of a firearm by a felon. The trial court denied pretrial motions to quash on both offenses to which appellant pleaded guilty. Appeal on those two cases is taken pursuant to Tex. R. App. P. 40(b)(1). This opinion deals only with the points of error raised as to the three robbery offenses to which appellant pleaded not guilty. Other opinions of this court address the points of error raised as to the two plea of guilty cases. We find no merit in any of appellant's three points of error raised in the three cases in which appellant pleaded not guilty. Accordingly, we affirm.
        In his first point of error, appellant contends that the trial court erred in overruling his objection to improper jury argument commenting on appellant's failure to testify.
        During the punishment phase of the trial, the prosecutor argued:
        [PROSECUTOR]:        What does that tell you about Earl James Huff, Jr.? It tells you, number one, that a 15-year sentence in the Texas Department of Corrections did him absolutely no good. Fifteen years didn't teach him a thing. He gets back out, and what do you know when he gets back out? You know that he gets right back into the same pattern of conduct, right back in it. And we don't know at this point in time what his motive is. His wife says --
 
        [DEFENSE COUNSEL]:        I'm going to object, Your Honor, that argument is a comment on the defendant's failure to testify.
 
        THE COURT:         Overruled.
* * *
        [PROSECUTOR]:        And I'm going to ask you not to take a chance on Earl James Huff, because nothing in the evidence indicates to you that he's a person that you should take a chance on. Nothing indicates that he's going to conform his behavior. Nothing indicates that he has any desire whatsoever to rehabilitate --
 
        [DEFENSE COUNSEL]:        I'm going to object, Your Honor, argument is a comment on the defendant's failure to testify.
 
        THE COURT:         Overruled.
 
* * *
        [PROSECUTOR]:        Nothing from the evidence before you indicates that he has any desire to rehabilitate himself.
 
        [DEFENSE COUNSEL]:        I'm going to object that the argument is a comment on the defendant's failure to testify.
 
        THE COURT:         Overruled.
(emphasis added). Appellant claims that the prosecutor's remarks concerning the "motive" for his pattern of conduct and his "desire" to be rehabilitated constituted intentional direct references to his failure to testify. We disagree.
        As to appellant's "motive" assertion, we find Henson v. State, 683 S.W.2d 702 (Tex. Crim. App. 1984) instructive. In Henson, the challenged remark asserted to be a comment on the accused's failure to testify was "for some reason known only to himself." Henson, 683 S.W.2d at 704. The question to be decided is whether the statement is a comment on appellant's failure to testify, either because the language was manifestly intended to be such a comment or because the language is such that a jury would take it as a comment on appellant's failure to testify. Henson, 683 S.W.2d at 704. In Henson, the court answered both prongs of the inquiry in the negative. In light of Henson's analysis, we conclude that in the present case, both taken alone and in the context of the whole argument, the "motive" comment pertains to appellant's general pattern of engaging in criminal conduct and not to the three specifically charged offenses for which appellant was being tried. Thus, we conclude further that the "motive" assertion was not manifestly intended to be a comment on appellant's failure to testify and was not such that the jury would take it as a comment on appellant's failure to testify. Therefore, we conclude that there is no merit in appellant's "motive" challenge to the prosecutor's jury argument.
        As to appellant's "desire" to be rehabilitated assertion, we find Davis v. State, 670 S.W.2d 255 (Tex. Crim. App. 1984) instructive. The desire, potential, and ability of a person to rehabilitate himself can be objectively assessed and testimony on this subject does not have to come from the defendant alone. Davis, 670 S.W.2d at 256-57. Therefore, we conclude that there is no merit in appellant's "desire" to be rehabilitated challenge to the prosecutor's jury argument. It follows that the trial court did not err in overruling appellant's objection to the prosecutor's jury argument. We overrule appellant's first point of error.
        In his second point of error, appellant contends that the trial court erred in overruling appellant's objection to improper jury argument alluding to the law of parole. During the punishment phase of the trial, the prosecutor made the following argument:
        [PROSECUTOR]:        And what else would these tell you? They tell you that he went down to the Texas Department of Corrections in 1979, the date of the judgment is in here, it's October 1st. He got a 15-year sentence for four aggravated robberies and a robbery. And you know he's back out of the penitentiary now and he's back into the same pattern of conduct.
 
        [DEFENSE COUNSEL]:        I'm going to object that that argument encourages, invites the jury to consider the discharge of the sentence.
 
        THE COURT:        Overruled.
Evidence of the possible effects of probation cannot be analogized to impermissible comments during jury argument about parole. Short v. State, 681 S.W.2d 652, 655 (Tex. App.--Houston [14th Dist.] 1984, pet. ref'd). We conclude, therefore, that defense counsel's objection "that the argument encourages, invites the jury to consider the discharge of the sentence" cannot be analogized to impermissible jury argument alluding to the law of parole. Hence, appellant's ground of error on appeal does not comport with the objection made at trial. Appellant may not, for the first time on appeal, urge error not raised at trial. The error presented on appeal must be the same as the objection raised before the trial court. Nelson v. State, 607 S.W.2d 554, 555 (Tex. Crim. App. 1980). Since the objection made in the trial court in the present case was not the same as urged on appeal, appellant has not properly preserved his argument for review. Hodge v. State, 631 S.W.2d 754, 757 (Tex. Crim. App. 1982). We overrule appellant's second point of error.
        In his third point of error, appellant contends that the trial court erred in enhancing the appellant's punishment due to a fatal variance between the enhancement allegation in the indictment and the evidence adduced to sustain that allegation. Included in each of the three robbery indictments to which the appellant pleaded not guilty and tried to a jury, was a second paragraph to be used for enhancement pursuant to Tex. Penal Code Ann. § 12.42(b) (Vernon 1974). Appellant entered a plea of not true to each paragraph. The prosecution introduced evidence in support of the second paragraph of each indictment during the punishment phase of the trial. A penitentiary packet was introduced as well as judgment, sentence and indictment from the prior conviction. Hence, the same felony offense was used to enhance each separate robbery. On appeal, appellant argues that there was a fatal variance between this enhancing felony charged in the three indictments and the proof presented at the punishment phase of trial. Specifically, the three indictments alleged that appellant was previously convicted on October 1, 1979, in the Criminal District Court No. 2, in Cause No. F79-5920-JI. Evidence in the penitentiary packet introduced at trial reflects a prior felony conviction from the 204th Judicial District Court in Cause No. F79-5920-JIQ. (emphasis ours). Therefore, in the present case, we know that the three indictments correctly allege the date of the prior offense, the cause number of the prior offense including the first two of the three final letters in the designation of the cause number, the location of the convicting court, the fact that the offense was a felony and the name of the felony offense. Nevertheless, appellant insists that a fatal variance exists between enhancement allegations and the necessary proof to establish the enhancement allegations. We disagree.
        Appellant failed to move to quash the three enhancement paragraphs. Where appellant makes no motion to quash the enhancement portion of the indictment, he waives any contention as to the sufficiency of the allegations in the indictment. Cole v. State, 611 S.W.2d 79, 80 (Tex. Crim. App. 1981). (The indictment alleged cause number 87954. The proof referred to cause number 87594. The charge referred to cause number 87954. The appellant urged a fatal variance between indictment and proof. The Court of Criminal Appeals concluded that there was no fatal variance.) The allegations in the indictment being sufficient, we reach the fatal variance issue. It is well settled that it is not necessary to allege prior convictions for the purpose of the enhancement of punishment with the same particularity as must be used in charging the original offense. Cole, 611 S.W.2d at 80. The purpose of the enhancement allegation is to provide the accused with notice of the prior conviction relied upon by the State. Cole, 611 S.W.2d at 82. Indeed, we must be able to say that appellant has shown such surprise or prejudice as to make the variance between allegation and proof fatal. See Cole, 611 S.W.2d at 82. In the present case, we are unable to say that appellant has shown such surprise or prejudice as to make the variance fatal. We quote a colloquy between the trial court and the defense counsel preceding the overruling of appellant's objections to the proof in question.
        THE COURT:        [L]et me ask defense counsel, are you in any way objecting to the accuracy of the notice? Are you surprised? You've brought forth the files that you were . . . .
 
        [DEFENSE COUNSEL]:        I'm not.
 
* * *
        THE COURT:        You need some more time to prepare?
 
        [DEFENSE COUNSEL]:        No, I'm saying there's just an incurable variance between the second paragraph . . . .
 
        THE COURT:        So, it's not -- you're not complaining of notice, you're just complaining that one court's alleged instead of the other?
 
        [DEFENSE COUNSEL]:        Right.
 
        THE COURT:        Okay. And the fact that you brought the court's file and you put on evidence through the deputy district clerk with that file that has that judgment and conviction contained in the pen packet that they're going, I assume, to offer to prove up these enhancement paragraph [sic], you did that, is that not right?
 
        [DEFENSE COUNSEL]:        Yes, I brought all the defendant's -- not just one jacket but I researched and brought all the defendant's convictions out of Dallas County, those, all of those jackets, not just one in the second paragraph.
 
        THE COURT:        All right. Let me just put this on the record, then. After reading among other cases, Hollins v. State, 571 S.W.2d 837, Mulder v. State, at 707 S.W.2d 908, Guitierrez v. State, at 456, 84, and Herald v. State, at 643 S.W.2d 686, as well as the arguments of counsel, the representations made here in court by counsel, . . . there's nothing to object to.
(emphasis added). We share the trial court's reaction: "There's nothing to object to." We conclude that in the present case the variance is not fatal. We overrule appellant's third point of error.
        Affirmed.
 
 
                                                          
                                                          WARREN WHITHAM
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 90
 
880698.U05
 
 
File Date[09-25-89]
File Name[880698]