Cuba v. State, 06-94-00232-CR

• Decision Date: 10 August 1995
• Docket Number: No. 06-94-00232-CR,06-94-00232-CR
• Citation: 905 S.W.2d 729
• Parties: Early Junior CUBA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 729

905 S.W.2d 729

Early Junior CUBA, Appellant, v. The STATE of Texas, Appellee.

No. 06-94-00232-CR.

Court of Appeals of Texas,

Texarkana.

Submitted Aug. 3, 1995.

Decided Aug. 10, 1995.

Sydney Young, Paris, for appellant.

Karla R. Baugh, Asst. District & County Attorney, Fannin County, Reg Controlled Substance App., Paris, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

CORNELIUS, Chief Justice.

Early Junior Cuba was convicted of delivery of cocaine. He was tried by a jury, but at his election the trial court set the punishment, which was twenty-five years' confinement.

In five points of error Cuba raises these contentions: insufficient evidence supports the conviction because there is a variance between the allegation and proof of his name; the trial court erred in allowing the State to reopen its case to use a prior conviction for impeachment; he was denied the right to effective counsel when the trial court refused to allow his counsel to attack the indictment in a prior conviction; and the contraband was inadmissible because of a break in the chain of custody. We overrule all these contentions and affirm the judgment.

Before trial, Cuba moved to quash the indictment because the enhancement paragraph referred to a prior aggravated assault conviction that was voidable because the indictment in that cause mistakenly alleged that Cuba was the peace officer assaulted, when it should have named the complaining witness as the peace officer. The trial court granted Cuba's motion to strike the enhancement paragraph. Also before trial, Cuba informed the court that, although the indictment stated his name as "Early Bud Cuba, Jr.," his real name was "Early Junior Cuba." The court stated that the indictment would be amended to reflect Cuba's name as he stated it. No amendment of the indictment was actually made, however.

At the trial, undercover officer Charles Desmares testified that he and a confidential informant met Roy Brown in Ladonia in Fannin County. Desmares and the informant told Brown that they wanted to buy drugs. They then went to Brown's house. At Brown's house, a man Brown identified as Early Junior Cuba drove up in a brown car and sold them $100.00 worth of cocaine. The State introduced cocaine and envelopes holding the cocaine as Exhibits 1-5. Cuba took the stand and testified in his own behalf. He said he was elsewhere during the drug sale and that the person who sold the cocaine was another man who resembled him and who used his name.

Cuba first argues that there is insufficient evidence to support the jury's finding that Early Bud Cuba, Jr. committed the offense as alleged in the indictment, and that the jury charge varied fatally from the allegations of the indictment.

A variance between the allegation and the proof of a middle name is neither material nor fatal. Martin v. State, 541 S.W.2d 605, 606 (Tex.Crim.App.1976). And the suffix "Jr." is not part of a name. Its inclusion or omission with a name is immaterial in criminal proceedings. Smith v. State, 435 S.W.2d 526, 527 (Tex.Crim.App.1969). If a person is generally known by one name, or is known by one name as well as another, either name may be used in the indictment. Dears v. State, 465 S.W.2d 376 (Tex.Crim.App.1971). Failure to order a defendant's name changed in an indictment to that suggested by the defendant is not improper where the defendant uses different names, one of which is used in the indictment. Fernandez v. State, 172 Tex.Crim. 68, 353 S.W.2d 434, 436 (1962).

Cuba does not complain of the sufficiency of the evidence apart from the name variation. Desmares testified that Cuba was identified to him as "Junior," "Early," "Early Cuba," and "Early Bud Cuba, Jr." Desmares used the final name on his investigative report because that was the name listed in the driver's license inquiry computer. At trial, Desmares testified and he identified Cuba as the person who sold him the cocaine. Cuba testified that he had gone by the nicknames "Bud" and "Junior," and that other Ladonia black males, some of whom resembled him, also went by the nickname of "Junior."

Although the court stated that the indictment would be amended, it was not. Nevertheless, reversible error is not shown. The variance between the middle names "Bud" and "Junior" and the omission of the suffix "Jr." are neither material nor fatal. Martin v. State, supra; Smith v. State, supra. Moreover, because Cuba went by the names "Bud," "Junior," and "Early," it was not error to use the name Early Bud Cuba, Jr. in the indictment. Dears v. State, supra. Because the evidence showed that Cuba was known by more than one name and that either name could therefore be used in the indictment, the trial court did not err by failing to correct the indictment. TEX.CODE CRIM.PROC.ANN. art. 21.07 (Vernon 1989); Adwon v. State, 708 S.W.2d 564, 568 (Tex.App.--Houston [1st Dist.] 1986, no pet.).

Cuba also contends that the trial court erred when it allowed the State to reopen its case on two different occasions and to call him to the stand and impeach him by proof of a prior conviction. He also contends that the court erred by applying TEX.CODE CRIM.PROC.ANN. art. 1.14(b) (Vernon Supp.1995) ¹ in a manner that effectively denied him his Sixth Amendment right to counsel.

Cuba voluntarily took the stand and testified in his own defense. After the defense rested, the trial court allowed the State to reopen and recall Cuba to the stand, at which time it introduced evidence that he was on probation for a charge of aggravated assault on a police officer. This was the same offense challenged by the motion to quash the enhancement paragraph. The court also allowed the State to reopen to let Desmares testify about the physical dissimilarity between Cuba and James Elliot Brown. Cuba had testified that Brown went by the name of "Junior" and resembled him.

The trial court shall allow testimony to be introduced at any time before the argument is concluded if it appears necessary to the due administration of justice. TEX.CODE CRIM.PROC.ANN. art. 36.02 (Vernon 1981). The decision to reopen is left to the trial court's sound discretion. Cain v. State, 666 S.W.2d 109 (Tex.Crim.App.1984); Perry v. State, 464 S.W.2d 660, 662 (Tex.Crim.App.), appeal dism'd w.o.j. and cert. denied, 404 U.S. 953, 92 S.Ct. 324, 30 L.Ed.2d 270 (1971). In fact, the trial court must reopen a case when the witness is present and ready to testify, the request to open has been made before the charge was read to the jury and final arguments were made, and the judge has some indication of what the testimony will be and is satisfied that it is material and bears directly on the main issues in the case. Gibson v. State, 789 S.W.2d 421, 423 (Tex.App.--Fort Worth 1990, pet. ref'd).

Cuba contends that the trial court erred because it had no evidence about what the testimony would be and that the testimony was inadmissible.

The decision to reopen the case is in the trial court's discretion. The attorneys had not delivered their closing arguments. The trial court apparently determined that the reopening was necessary to promote the due administration of justice. The court's knowledge of the proposed evidence is important only when the court must reopen the case. Here, the court's decision was discretionary. Moreover, the evidence was admissible. We find no error in allowing the reopenings.

Cuba contends that the court should not have allowed the State to impeach him by calling him directly, but should have allowed the State to cross-examine him only when he testified in his own defense.

U.S. CONST. amend. V and TEX.CONST. art. I, § 10 give the accused the right against self-incrimination, but when the accused voluntarily takes the stand to testify, he waives that right. Brumfield v. State, 445 S.W.2d 732, 735 (Tex.Crim.App.1969). A defendant cannot take the witness stand for a limited purpose, and when he testifies he may be cross-examined on the whole case. Perez v. State, 170 Tex.Crim. 586, 343 S.W.2d 256, 258 (1961). When the defendant takes the stand he subjects himself to any legitimate cross-examination within the rules of evidence. Brumfield v. State, supra. When Cuba voluntarily took the stand he waived his right against self-incrimination. He subjected himself to examination within the rules of evidence on any aspect of the case, and on direct or on recall. Brumfield v. State, supra; Petty v. State, 94 Tex.Crim. 211, 250 S.W. 163 (1923).

We next consider whether it was error to allow evidence of the prior conviction as impeachment.

A trial court may admit evidence of felony convictions for impeachment if it determines that the evidence's probative value outweighs its prejudicial effect. TEX.R.CRIM.EVID. 609(a). Aggravated assault is a felony. TEX.PENAL CODE ANN. § 22.02(c). ² In determining whether the probative value of a conviction outweighs its prejudicial effect, the trial court should consider: (1) its impeachment value, (2) its temporal proximity to the charged offense and the witness's subsequent history, (3) similarity between it and the offense charged, (4) the importance of the defendant's testimony, and (5) the importance of the credibility issue. Theus v. State, 845 S.W.2d 874, 880 (Tex.Crim.App.1992). In reviewing the trial court's weighing of these factors and its decision, an appellate court will accord the lower court wide discretion. Id. at 881. The reviewing court will reverse the trial court's determination only if its decision lies outside the zone of reasonable disagreement.

The first factor weighs somewhat against admissibility. Aggravated assault is not an offense that usually involves untruthfulness or deception and thus it is not one that would ordinarily bear heavily against a witness's veracity. Moreover, aggravated assault on a peace officer might be especially prejudicial to a jury and thus might outweigh its probative value as impeachment.

As to the...