LEE EDWARD CARTER, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed December 11, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01434-CR
............................
LEE EDWARD CARTER, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F88-86952-HL
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OPINION PER CURIAM
Before Justices Stewart, Thomas and Kinkeade
        Lee Edward Carter appeals his conviction for possession of a firearm by a felon. Punishment was assessed at twenty-five years' confinement.
        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 meritorious 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 two pro se briefs, alleging that: 1) the indictment is fatally defective in that it is not signed by the foreman of the grand jury; 2) trial counsel failed to object to the State's failure to prove the sufficiency of the indictment; 3) the enhancement paragraphs were improperly based on void convictions because the underlying indictments for those convictions were not signed by the foremen of the grand juries; and 4) the State failed to prove the required order of commission of the prior offenses used for enhancement. In addition, counsel has raised one arguable point, contending that there is a fatal variance between the indictment and the proof. Finding no merit in any of these points, we affirm the trial court's judgment.
        Appellant's first point of error is that the indictment is void because it is not signed by the foreman of the grand jury. See Tex. Code Crim. Proc. Ann. art. 21.02(9) (Vernon 1989). There is, however, the signature of James J. Heutel in the space provided on the indictment for the signature of the grand jury foreman. The record further reflects that the true bill of indictment was presented as signed by the grand jury foreman, James J. Heutel. Appellant alleges that Frank Finn was the foreman of the grand jury. However, the record does not support this contention. Unsubstantiated allegations in an appellate brief will not be considered by the Court. Franklin v. State, 693 S.W.2d 420, 431 (Tex. Crim. App. 1985), cert. denied, 475 U.S. 1031 (1986); Davila v. State, 651 S.W.2d 797, 799 (Tex. Crim. App. [Panel Op.] 1983). We also note that appellant did not object to this alleged defect at trial; thus, appellant cannot raise this argument on appeal. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 1989). Further, the court of criminal appeals has held that the signature of the grand jury foreman is not essential to the validity of the indictment. Owens v. State, 540 S.W.2d 324, 325 (Tex. Crim. App. 1976); McCullough v. State, 425 S.W.2d 359, 360 (Tex. Crim. App. 1968); see also Marks v. State, 721 S.W.2d 401, 405 (Tex. App.--Beaumont 1986, no pet.). We overrule appellant's first point of error.
        In his second point of error, appellant contends that his trial attorney "did not object to the State's failure to prove the indictment sufficient with the trial court claiming that the indictment wasn't fatally defective." To the extent appellant is arguing that the indictment was defective because it was not signed by the foreman of the grand jury, we reiterate that the court of criminal appeals has ruled contrary to appellant's position. To the extent that appellant is contending that the indictment is defective for some undisclosed reason, we note that the indictment alleges that appellant possessed a firearm away from the premises where he lived and that he had been previously convicted of the felony offense of aggravated robbery which was a felony involving an act of violence to a person. Thus, the indictment alleges all the necessary elements of the offense of unlawful possession of a firearm by a felon. See Tex. Penal Code Ann. § 46.05 (Vernon 1989). An indictment which alleges all constituent elements of an offense is valid. McElroy v. State, 720 S.W.2d 490, 492 (Tex. Crim. App. 1986). To the extent appellant is claiming that counsel was ineffective because he failed to object to a defective indictment, we reiterate that the indictment was not defective. We overrule appellant's point of error two.
        In his third point of error, appellant contends that the underlying convictions used for enhancement purposes, and the aggravated robbery conviction alleged as the prior violent felony making it unlawful for appellant to carry a weapon, were void because the indictments were not signed by the foremen of the grand juries presenting the indictments. The State introduced into evidence the indictment for the 1980 aggravated robbery conviction. That indictment is signed by Ed Vanston as foreman of the grand jury. The first conviction alleged for enhancement was a 1987 attempted burglary conviction. The State introduced into evidence a copy of the indictment in that case. The indictment is signed by Mimi Oliver as foreman of the grand jury. The second conviction alleged for enhancement was a 1983 conviction for burglary. The State also introduced into evidence the indictment for that case, showing the signature of Ann Jobe as foreman of the grand jury. Thus, we conclude that the indictments were indeed signed. Further, even if the indictments were not signed, that failure would not affect the validity of the indictments. McCollough, 425 S.W.2d at 360. We overrule appellant's third point of error.
        In his fourth point of error, appellant alleges that the State failed to prove the required order of occurrence of the underlying offenses used for enhancement purposes. He also alleges that there is a fatal variance between the indictment and the proof of the enhancement paragraphs.
        Appellant argues that the Texas Penal Code requires, where two previous felony convictions are alleged, that the second felony conviction must have occurred subsequent to the first previous felony offense having become final. See Tex. Penal Code Ann. § 12.42(d) (Vernon 1974). He contends that the indictment and proof in this case is faulty because the State instead proved and alleged that the first previous felony offense occurred and became a final conviction prior to the second previous felony offense. Of course, the result of the State's allegations and proof is exactly identical to the result appellant argues is appropriate. We discern no error in the indictment allegations or the State's proof concerning the proper order of commission of prior felonies for enhancement purposes. We hold that the State met the requirements of section 12.42(d).
        Appellant's variance argument relies on his assumption that there are four paragraphs in the indictment: 1) the paragraph alleging that appellant possessed a weapon away from the premises where he lived, 2) the aggravated robbery conviction alleged as the prior violent felony conviction prohibiting appellant from carrying a weapon, 3) the 1987 attempted burglary conviction, and 4) the 1983 burglary conviction. The indictment alleged that the 1987 attempted burglary was committed "prior to the commission of the offense hereinbefore charged against him, as set forth in the first paragraph hereof," and that the 1983 burglary occurred "prior to the commission and conviction of the offense hereinbefore charged against him, in the second paragraph hereof." Appellant argues that this means the State had to prove that the 1983 burglary occurred prior to the 1980 aggravated robbery conviction alleged in what appellant terms the second paragraph of the indictment. Because the State could not prove that allegation, appellant argues, there is a fatal variance.
        Appellant's argument is without merit. The "first paragraph" of the indictment, that which charged the primary offense, contained the allegation concerning the prior aggravated robbery conviction as a constituent element of the offense. An indictment for the offense of possession of a firearm by a felon must allege that the defendant has a prior conviction involving violence or threatened violence. See Tex. Penal Code Ann. § 46.05 (Vernon 1989); see, e.g., Scott v. State, 571 S.W.2d 893, 895, 896 (Tex. Crim. App. [Panel Op.] 1978); Mendoza v. State, 460 S.W.2d 145, 147 (Tex. Crim. App. 1970). That allegation is not a separate enhancement paragraph; indeed, a prior conviction cannot be used for enhancement in a prosecution where it is also alleged as an element of the primary offense. Kincheloe v. State, 553 S.W.2d 364, 367 (Tex. Crim. App. 1977). The State properly proved that the 1987 attempted burglary occurred prior to the 1988 offense of possession of a firearm by a felon, which was alleged in the first paragraph of the indictment. The State also properly proved that the 1983 burglary occurred prior to the 1987 attempted burglary conviction alleged in the second paragraph of the indictment. There is no variance between the indictment allegations and the proof as argued by appellant. We overrule appellant's fourth and final point of error.
        Counsel's arguable point of error is that there exists a fatal variance between the indictment allegation of the 1980 robbery conviction and the State's proof. Counsel notes that the indictment alleges that appellant was previously convicted in the 203rd District Court in cause number F80-01943-KP. However, the State's proof was that appellant was convicted in the 204th District Court in cause number F80-01943-KPQ. Mere or slight variances between what was alleged and what was proved at trial will not render the evidence insufficient to sustain the conviction. Human v. State, 749 S.W.2d 832, 836 (Tex. Crim. App. 1988). A variance must be material and prejudicial to render the evidence insufficient; in order to establish that the alleged variance is material and prejudicial, appellant must show surprise or that he was misled to his prejudice. Phillips v. State, 753 S.W.2d 813, 815 (Tex. App. -- Austin 1988, pet. ref'd).
        Appellant has not claimed that he was surprised or misled by the variances in this case. We conclude that these minor variances are not fatal and that the evidence is not insufficient. Compare Human, 749 S.W.2d at 839 (slight discrepancy between alleged cause number F-80-1197-MN and proved number F80-11997N not a fatal variance); Rooks v. State, 576 S.W.2d 615, 616-17 (Tex. Crim. App. [Panel Op.] 1978) (variance between allegation that defendant was previously convicted in the criminal district court and proof that defendant convicted in the 184th district court not fatal, despite the fact that there was no criminal district court in the county at the time of defendant's prior conviction); Plessinger v. State, 536 S.W.2d 380, 381-82 (Tex. Crim. App. 1976) (no fatal variance where proof showed defendant's prior conviction was styled "The State of Arizona v. . . . " and indictment alleged that defendant's conviction was styled "The State of Texas v. . . .") We overrule the arguable point of error.
        We have carefully reviewed the record and counsel's brief and agree that the appeal is wholly frivolous and without merit. Further, we find nothing in the record that might arguably support the appeal.
        The judgment is affirmed.
 
                                                          PER CURIAM
 
Do Not Publish
Tex. R. App. P. 90.
 
881434.U05
 
 
File Date[12-06-89]
File Name[881434]