MINH VAN LE,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-01172-CR
NO. 05-88-01173-CR
MINH VAN LE,FROM A DISTRICT COURT
 
                APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
                APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, LAGARDE AND WHITTINGTON
OPINION PER CURIAM
JUNE 20, 1989
        Minh Van Le appeals his convictions for murder and aggravated assault. Punishment was assessed at fifty years' confinement in the murder case and ten years' confinement in the aggravated assault case.
        Appellant's attorney has filed a brief in which appellant's attorney has concluded that the appeals are 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. No pro se brief has been filed. Counsel has raised four arguable points of error on appeal, claiming that: (1) the trial court improperly entered a judgment in the aggravated assault case ordering that the sentence not commence until after the sentence in the murder case had been served; (2) the evidence is insufficient to support the conviction in the aggravated assault case because of a variance between the indictment and the evidence at trial as to the name of the complainant; (3) the trial court erred in overruling appellant's objection to the State's argument at the guilt-innocence phase of trial; and (4) the trial court erred in overruling appellant's motion for mistrial for improper argument by the State. We overrule all appellant's points and affirm the judgment of the trial court.
        Appellant first claims that the trial court improperly ordered that the sentences in the aggravated assault conviction and the murder conviction be served consecutively. He makes two basic arguments in support of his claim. First, he argues that the trial judge did not have the power to order that the sentences be served consecutively because of the provisions of section 3.03 of the Texas Penal Code, which provides as follows:
    When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, sentence for each offense for which he has been found guilty shall be pronounced. Such sentences shall run concurrently.
TEX. PENAL CODE ANN. § 3.03 (Vernon 1974) (emphasis added). However, the provisions of section 3.03 are applicable only if the State has filed written notice of consolidation of causes in compliance with section 3.02(b) of the Penal Code. Garza v. State, 687 S.W.2d 325, 330 (Tex. Crim. App. 1985). There is no record in the present cause that the State gave notice of consolidation; appellant seems to concede as much in his brief. As a result, the provisions of section 3.03 do not apply.
        Except as limited by section 3.03 of the Penal Code, a trial judge has absolute discretion to cumulate sentences. Garza, 687 S.W.2d at 329; Bridwell v. State, 761 S.W.2d 401, 407 (Tex. App.-- Dallas 1988, pet. granted). See also TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (Vernon 1965). Since the provisions of section 3.03 do not apply in this case, the trial court had absolute discretion to cumulate the sentences.
        Appellant argues further that due process and equal protection requires that his sentences be served concurrently notwithstanding the non-application of section 3.03 of the Penal Code. We note that at no point did appellant object to the joint trial of these cases. Unless the defendant agrees to consolidation or fails to timely object, he enjoys the right to separate trials. Royal v. State, 391 S.W.2d 410, 411 (Tex. Crim. App. 1965). By failing to object in the trial court, we conclude that appellant acquiesced in the consolidation of the cases, even though the requirements of section 3.02 had not been satisfied. See Guia v. State, 723 S.W.2d 763, 768 (Tex. App.-- Dallas 1986, pet. ref'd). Due process and equal protection do not require us to save appellant from his own judgment. Accordingly, appellant's claim that the trial court did not have the power to order concurrent sentences is without merit.
        Appellant's second argument is that the order for consecutive sentences is defective for failing to adequately specify the required information of the prior case. The order for consecutive sentences reads, in pertinent part, as follows:
    Now upon sentencing of the defendant in the above styled cause it is the Order, Judgment and Decree of the Court that the judgment and sentence in this cuase shall commence and run when the sentence in Cause No. F88-69230-SU, a previous conviction of the defendant for the offense of Murder, in the 291st Judicial District Court of Dallas County, Texas, has been served and has ceased to operate. The sentence in said prior cause was imposed on September 9, 1988, and was for a term of 50 years in the Texas Department of Corrections. And a fine of $7,500
        The Court of Criminal Appeals has set out five recommended components of cumulation orders. An order should contain:
    (1) the trial court number of the prior conviction;
 
    (2) the correct name of the court where the prior conviction was taken;
 
    (3) the date of the prior conviction;
 
    (4) the term of years of the prior conviction; and
 
    (5) the nature of the prior conviction.
Ward v. State, 523 S.W.2d 681, 682 (Tex. Crim. App. 1975). The order for consecutive sentences contains all the information recommended in Ward. Thus, appellant's argument is without merit.
        To summarize, the trial court did not err in ordering that the sentence in the aggravated robbery case not commence until after the sentence in the murder case had been served. In addition, the order for consecutive sentences is not defective. Appellant's first arguable point of error is overruled.
        In appellant's second point of error, he claims that the evidence was insufficient to support his conviction for aggravated assault because of a variance between the name of the complainant as alleged in the indictment and the evidence adduced at trial. The indictment named "Tai Huy Do" as the complainant. The complainant testified that his name is Do Tai Huy. However, he also stated that he is known as Tai Huy Do.
        Article 21.07 of the Code of Criminal Procedure provides that when a person is known by two or more names, it shall be sufficient to state either name. See, Roach v. State, 586 S.W.2d 866, 867 (Tex. Crim. App. 1979); Garcia v. State, 760 S.W.2d 817, 819-820 (Tex. App.-- Corpus Christi 1988, no pet.). In the present cause, the complainant's testimony that he was known by the name alleged in the indictment was sufficient for the jury to find that the complainant was known as Tai Huy Do. Appellant's second arguable point of error is overruled.
        In appellant's third arguable point of error, he complains of the following argument made by the prosecutor:
    Before you do anything when you go into the jury room and read these charges, front to back. Be sure you understand them. The legislature attempted to enact statutes and laws with definitions that you use, the commonly understood meanings. Words that you find in this charge, there are no trick terms, no mysterious phrases in there. It's fairly straight forward. My opening argument will be confined with trying to give you some framework with which to look at the analysis of the facts given to you by both myself and Mr. Campos. I ask that you demand, scrutinize, and look for in his summation and analysis of the facts for some convincing and compelling basis for believing that his client told you the truth about what happened.
Appellant's objection was overruled. The State continued:
    Demand that because one point we talked about on voir dire and one thing we talked about that turned out to be critical in this case is the issue of credibility, deciding who is telling you the truth. That's what it's boiling down to. A young boy born in a small town in Vietnam against a big city policeman. Think about those main facts when you receive his summation on behalf of the defendant...
He now claims, as he claimed at trial, that the State's argument shifted the burden of proof from the State to him.
        The proper scope of jury argument is: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) response to argument of opposing counsel; and (4) pleas for law enforcement. Compton v. State, 607 S.W.2d 246, 253 (Tex. Crim. App.), cert. denied, 450 U.S. 997 (1980); Alejandro v. State, 493 S.W.2d 230, 231-232 (Tex. Crim. App. 1973). Counsel must be given wide latitude in drawing inferences from the evidence so long as the inferences are reasonable, fair, legitimate, and offered in good faith. Vaughn v. State, 607 S.W.2d 914, 922-923 (Tex. Crim. App. 1980).
        The Court of Criminal Appeals has found that arguments commenting on the credibility of witnesses are not objectionable as long as they constitute a reasonable deduction from the evidence. Miller v. State, 566 S.W.2d 614, 619 (Tex. Crim. App. [Panel Op.] 1978). Taken in context, the State's argument did not shift the burden to appellant; rather, it told the jury that credibility was the main issue, and urged the jury to bear in mind that issue when listening to defense counsel's argument. The record reflects that the only eyewitnesses who testified concerning the commission of the offenses were Do Tai Huy, the complainant in the aggravated assault case, and appellant. Appellant testified that the complainant in the murder case committed suicide, and that Do Tai Huy must have injured himself with a knife. Do Tai Huy, however, testified that appellant beat and stabbed his mother and himself. The testimony of appellant and Do Tai Huy as to the offenses themselves was irreconcilable; as a result, credibility of the witnesses was clearly the main issue. Thus, the State's characterization of the fact issue before the jury was a reasonable deduction from the evidence. We conclude that the State's argument did not shift the burden, but urged that the jury consider the credibility of the witnesses when listening to defense counsel's argument. As a result, the State's argument was not erroneous. Appellant's third arguable point of error is overruled.
        In appellant's fourth arguable point of error, he claims that the trial court erred in overruling his motion for mistrial when the State argued outside the record. The State's argument was as follows:
    The first time he felt this [the murder weapon] go into Athi Do's body he should not have been able to do anything else. He should have been helpless to do more. But not this man. It's reasonable for you to conclude that in 25 years as a policeman in Vietnam in Saigon during the years that we know he was there he had at least one arrest where somebody fought him.
Appellant's objection was sustained, and the jury was ordered to disregard.
        Generally, an instruction to disregard cures any potential error from improper jury argument. Sawyers v. State, 724 S.W.2d 24, 38 (Tex. Crim. App. 1986); Anderson v. State, 633 S.W.2d 851, 855 (Tex. Crim. App. 1982). This Court has found far more inflammatory arguments than that complained of by appellant in the present cause to be cured by an instruction to disregard. See McCullen v. State, 659 S.W.2d 455, 460 (Tex. App.-- Dallas 1983, pet. ref'd) (in aggravated robbery case, characterization of the appellant as "drug user" when no evidence at trial that the appellant used drugs). We find that any error the quoted argument in the present cause to be cured by the court's instruction to disregard. Appellant's fourth arguable point of error is overruled.
        The judgment is affirmed.
 
                                                          PER CURIAM
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-01172.F
 
 
File Date[01-02-89]
File Name[881172F]