EDDIE ROBERT RAMIREZ, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed October 5, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-00888-CR
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EDDIE ROBERT RAMIREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F88-94537-TN
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O P I N I O N
Before Justices McClung, Thomas and Whittington
Opinion By Justice Whittington
        Appellant, Eddie Robert Ramirez, was convicted by a jury of aggravated assault upon a police officer. See Tex. Penal Code Ann. § 22.02 (Vernon 1987). Punishment was assessed at thirteen years in the Texas Department of Corrections. Appellant raises five points of error: (1) the prosecutor improperly sought to impeach appellant with evidence regarding two prior arrests; (2) the trial court erred in its instructions to the jury in the guilt/innocence and punishment charges; and (3) the evidence is insufficient to support the jury's finding with regard to the second paragraph of the indictment. We overrule these points and affirm the trial court's judgment.
        Testimony offered at trial established that a clerk employed at Kid's Mart in Dallas saw two people with a small child shoplifting items in the store. Appellant then entered and joined the two alleged shoplifters. The group exited the store and attempted to leave the parking lot in a car driven by appellant. The store clerk alerted a police officer who approached the car on foot and ordered the driver to stop. Appellant did not immediately stop and the uniformed police officer was injured by the vehicle while attempting to prevent appellant and his passengers from leaving.
        In his first two points of error, appellant contends that the prosecutor improperly sought to impeach appellant with evidence of two prior arrests not constituting felonies or crimes of moral turpitude. Appellant failed to object to these allegedly improper impeachment attempts. In order to preserve error for appellate review, a party must register a timely and specific objection. The complaining party also must obtain a ruling upon the objection. Tex. R. App. P. 52(a). See Cisneros v. State, 692 S.W.2d 78, 83 (Tex. Crim. App. 1985). Failure to object at trial presents nothing for review. Haynes v. State, 627 S.W.2d 710, 712 (Tex. Crim. App. 1982); see also Jones v. State, 649 S.W.2d 665, 667 (Tex. App.--Waco 1983, no pet.). We hold that by failing to make a timely objection at trial, appellant did not preserve error with regard to alleged improper impeachment attempts and accordingly, nothing is presented for review. We overrule appellant's first and second points of error.
        In his third point of error, appellant contends that the trial court's charge to the jury on guilt/innocence was misleading and confusing because the charge provided alternative theories upon which the jury could conclude that appellant committed aggravated assault while the indictment alleged only one theory of the case. The charge reads in pertinent part that:
 
 
            Our law provides that a person commits the offense of assault if he intentionally or knowingly causes bodily injury to another.
 
            The offense is aggravated assault if a person commits an assault as hereinbefore defined upon a peace officer in the lawful discharge of his official duty when the person committing the assault knows or has been informed that the person assaulted is a peace officer.
 
            You are further instructed that a person committing such assault is presumed to have known the person assaulted was a peace officer if he was wearing a distinctive uniform indicating his employment as a peace officer.
 
            Further, the offense is aggravated assault if the person committing such assault uses a deadly weapon.
 
            By the term deadly weapon is meant anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
The indictment states that appellant:
 
    then and there knowingly and intentionally cause bodily injury to CARROLL W. COTTONGAME, a peace officer in the lawful discharge of official duty, by STRIKING said peace officer with a deadly weapon to-wit: AN AUTOMOBILE, when he the said defendant knew and had been informed that the said CARROLL W. COTTONGAME was a peace officer.
        The purpose of the charge is to inform the jury of the law applicable to the case. Benson v. State, 661 S.W.2d 708, 713 (Tex. Crim. App. 1982). It is proper for the trial court to set forth in the jury charge the general law defining the offense charged and then make a direct and pertinent application of the law to the facts in the case. Rogers v. State, 687 S.W.2d 337, 344 (Tex. Crim. App. 1985). The charge should correspond with and incorporate the allegations in the indictment. Jackson v. State, 633 S.W.2d 897, 899 (Tex. Crim. App. 1982). When evaluating the charge on appeal, the reviewing court will not consider isolated portions, but will consider the charge as a whole. Levington v. State, 651 S.W.2d 319, 325 (Tex. App.--Dallas 1983, pet. ref'd). No error generally occurs when the jury charge tracks the language of the applicable statute, and the case will not be reversed if the charge taken as a whole accurately reflects the legal issues in the case. Massie v. State, 744 S.W.2d 314, 317 (Tex. App.--Dallas 1988, pet. ref'd). The charge in this case contains no error. It corresponds to the allegations in the indictment, and informs the jury of the law applicable to the case, including those individual elements which must be proved by the State to constitute the offense of aggravated assault on a peace officer. We therefore overrule appellant's third point of error.
        In his fourth point of error, appellant contends that the trial court erred in instructing the jury in the charge on punishment that the offense appellant was convicted of was a second degree felony. Appellant claims that the instruction is erroneous because the jury made no affirmative finding of a deadly weapon. Additionally, appellant asserts that the defense was never put on notice that the issue of a deadly weapon would be submitted to the jury for a finding.
        The trier of fact's verdict on the indictment constitutes an affirmative finding of the use or exhibition of a deadly weapon in the commission of an offense. See Ex parte Moser, 602 S.W.2d 530, 533 (Tex. Crim. App. 1980); see also Ex parte Poe, 751 S.W.2d 873, 875 (Tex. Crim. App. 1988). Section 22.02(c) of the Texas Penal Code clearly provides that a charge of aggravated assault is upgraded to a second degree felony if the assault is on a peace officer and the actor uses a deadly weapon. In the instant case, the indictment expressly alleges that appellant knowingly and intentionally assaulted a peace officer with a deadly weapon. The jury found appellant guilty of aggravated assault on a police officer as charged in the indictment. Based upon the express language of the indictment, we conclude that appellant was put on notice that the issue of a deadly weapon would be submitted to the jury for a finding. Furthermore, we reason that the jury made an affirmative finding of a deadly weapon based upon the jury verdict specifically finding appellant guilty of aggravated assault as charged in the indictment. We therefore hold that the trial court did not err in its instruction to the jury in the charge on punishment that the offense appellant was convicted of was a second degree felony. We overrule appellant's fourth point of error.
        In his final point of error, appellant contends that the evidence presented at trial is insufficient to support the jury's finding of true to the second paragraph of the indictment. The second paragraph alleged that appellant was convicted of the offense of possession of heroin on August 6, 1987. However, the "pen packet" introduced by the State in support of this prior conviction shows the date of the heroin conviction to be February 3, 1986. Appellant now asserts on appeal that a rational trier of fact could not have found the second paragraph true because of the variance in the dates of conviction alleged and proven.
        In deciding the question of sufficiency of the evidence this Court views the evidence in the light most favorable to the jury's verdict. We consider whether any rational trier of fact could have found the prior conviction allegation true beyond a reasonable doubt. See Human v. State, 749 S.W.2d 832, 834 (Tex. Crim. App. 1988). The primary issue is whether the evidence was rendered insufficient because there was a material variance between the date of the prior conviction alleged and what was proved by the State. A variance between the pleading and proof must be material and prejudicial to the defendant in order to render the evidence insufficient. A mere or slight variance between what was alleged and what was proved will not render the evidence insufficient. See Hall v. State, 619 S.W.2d 156, 157 (Tex. Crim. App. 1980) (on reh'g); see also Lopez v. State, 654 S.W.2d 521 (Tex. App.--Corpus Christi 1983, pet. ref'd).
        In the case before us, the variance is between the conviction date alleged in the "pen packet" and the date alleged in the second paragraph of the indictment. We must determine whether the State presented sufficient evidence to support the jury finding that appellant was the same person who was allegedly previously convicted of possession of heroin. The record reveals that on cross-examination appellant testified that:
 
                A.    I've been in prison for heroin; using heroin.
 
                Q.    Using heroin?
 
                A.    Yes, sir.
 
                Q.        Let me ask you about that. Was that out of Judge Maloney's Court,     Criminal District Number Four, the lady Judge?
 
                A.    Yes, sir.
 
                Q.        And were you finally sentenced on that case back on August the 6th,     1987, the last time you were sentenced?
 
                A.    Yes.
 
                Q.        And if I tell you that the cause number in that case was F-85-88947-    TLK, you wouldn't disagree with that, would you?
 
                A.    I wouldn't know what case number that is.
 
                Q.        But you were sentenced for possession of a controlled substance,     heroin, weren't you?
 
                A.    Yes.
        We conclude that appellant's testimony negated any discrepancy between the date of conviction alleged in the indictment and that proved by the State using the "pen packet." There is no showing that appellant was surprised or misled by the allegations. The correct county, the correct court and the correct cause number were alleged and proved. We therefore hold that the variance in the date was not fatal and the evidence presented at trial was sufficient to support a jury finding of true to the prior conviction alleged in the second paragraph of the indictment. We overrule appellant's fifth and final point of error.
        We affirm the judgment of the trial court.
 
 
 
                                                          
                                                          John Whittington
                                                          Justice
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
880888.U05
 
 
File Date[10-04-89]
File Name[880888F]