      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-02-00812-CR




                                   Harry Rutledge, Jr., Appellant

                                                   v.

                                    The State of Texas, Appellee




        FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
            NO. 9024214, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING




                             MEMORANDUM OPINION


                A jury convicted Harry Rutledge of delivery of less than one gram of cocaine, enhanced by

three prior drug convictions. See Tex. Health & Safety Code Ann. ' 481.112 (West 2003). In one issue,

appellant contends that a variance between the indictment and proof violated his right to due process.

Because appellant does not argue and presented no evidence that he was surprised or prejudiced by the

discrepancy between the indictment and the proof at trial, we affirm the judgment of conviction.
                The State alleged in the indictment that on or about June 13, 2002, appellant unlawfully

delivered cocaine in an amount less than one gram, and that he had been previously convicted of felony

possession of a controlled substance on September 5, 1997, in cause number 971760 in Travis County.

Because the cause number of the offense alleged in the indictment was not identical to the cause number

presented at trial, appellant argues that he was denied due process. The State responds that any

discrepancy between the number in the indictment and the proof at trial was not material or harmful.

                A variance must be both material and prejudicial to the defendant before it is fatal. Human

v. State, 749 S.W.2d 832, 837 (Tex. Crim. App. 1988) (op. on reh=g). For a variance to be material it

must mislead the party to his prejudice. Plessinger v. State, 536 S.W.2d 380, 381 (Tex. Crim. App.

1976) (admonishing A[w]hile the carelessness here involved is not to be condoned, we are unable to say that

appellant has shown surprise or that he was misled to his prejudice.@). The defendant has the burden of

showing surprise or prejudice. Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001).

                Appellant does not contend that he was misled, surprised, or prejudiced by the discrepancy

between the indictment and the State=s proof. State=s exhibit 7 shows the cause number of the judgment as

971768, rather than 971760 as recited in the indictment. However, both the exhibit and the indictment

recite the correct date, court, and county of the judgment. Appellant contends that the single digit variance

in the cause numbers violated his due process rights.




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                The slight discrepancy between the two cause numbers in the indictment and on the

judgment is controlled by the Human court=s decision regarding a similar discrepancy. In that case, the

court found that AF7808690@ and AF-78-8690-IQ@ were substantially the same cause numbers. Human,

749 S.W.2d at 837-38. Commenting on the history of the variance rule, the court stated: Athe rigid rule that

a mere or slight variance between what was alleged and what was proved was sufficient to render the

evidence insufficient no longer applies.@ Id. at 836. Noting that Human had never asserted that he was not

given sufficient notice through the pleadings of what the State intended to prove, that he was ever surprised,

or that he was misled to his prejudice by the discrepancy that existed between the State=s allegation and its

proof, the court concluded that the variance was not fatal, and that appellant was not surprised or

prejudiced by the discrepancy. Id. at 837-38. A variance between the cause number alleged in the

enhancement paragraph and the cause number of the prior conviction proved in court is not fatal to the

enhancement so long as the appellant was not prevented from identifying the conviction and preparing a

defense thereto. See Barrett v. State, 900 S.W.2d 748, 752 (Tex. App.CTyler 1995, pet. ref=d). Where

the State proves up the correct court, county, date, and offense, a variance in cause numbers is not fatal.

Straughter v. State, 801 S.W.2d 607, 611 (Tex. App.CHouston [1st Dist.] 1990, no pet.).

                Appellant does not argue that the State failed to notify him of the judgments and proof it

intended to offer at trial. Nor does he argue that he was misled to his prejudice in preparing his defense.

Appellant failed to object at the time the exhibit was offered and admitted. Although the enhancement

paragraph in the indictment stated an incorrect cause number, the presence of other correct details, including

the correct court, county, date, and offense, provided appellant with adequate notice of his prior conviction.


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Because appellant failed to demonstrate that this slight discrepancy surprised him or prejudiced his rights,

we conclude that it did not violate his right to due process.


                                             CONCLUSION

                 We overrule appellant=s issue on appeal and affirm the conviction.




                                                  __________________________________________

                                                  Jan P. Patterson, Justice




Before Chief Justice Law, Justices Kidd and Patterson

Affirmed

Filed: May 15, 2003

Do Not Publish




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