Grant v. State

970 S.W.2d 22, 1998 Tex. Crim. App. LEXIS 79, 1998 WL 331285

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge,

delivered the opinion of the Court,

in which McCORMICK, Presiding Judge, and PRICE, HOLLAND and WOMACK, Judges, joined.

Appellant was convicted of the misdemean- or offense of evading arrest. The information charging the offense stated, in relevant part, that appellant did: “then and there unlawfully and intentionally flee from Officer Lawson, a peace officer who Bobbie Grant knew to be a peace officer, who was attempting to arrest or detain Bobbie Grant.” The evidence at trial identified the peace officer as “Lieutenant Craig Lawson.” Appellant contends that the evidence at trial was insufficient to support his conviction because the State pled, but failed to prove, that Lawson’s first name was “Officer.” Appellant thus alleged a fatal variance between the charging instrument allegation and the proof of the complainant’s name at trial. The Court of Appeals agreed with appellant’s contention and reversed the conviction.¹ We will reverse the Court of Appeals.

This ease does not involve a “variance” of any type; it simply involves a missing allegation that is required by statute to be in the charging instrument. “Officer” is clearly Lawson’s title rather than his first name; hence, his first name is missing from the information in violation of Texas Code of Criminal Procedure Article 21.07.² This missing first name is a defect that was waived under Studer when appellant failed to object. See Article 1.14(b); Studer v. State, 799 S.W.2d 263 (Tex.Crim.App.1990). Because “Officer” was not an allegation of Lawson’s first name, the State was not required to prove that it was Lawson’s first name.

The judgment of the Court of Appeals is reversed and this cause is remanded to that court for consideration of appellant’s remaining points of error.

OVERSTREET, J., concurs in the result.

1 . Judge Baird does a fine job of explaining the law regarding variances, but he should go back and re-read the Court of Appeals’ opinion. That court stated that the dispositive issue presented by the appeal was whether there was a fatal variance between the charging instrument and "proof of the complainant’s name." (emphasis added.) The State did prove that Lawson was an officer; there is no suggestion to the contrary. The State just failed to prove that Lawson’s name was “Officer.” The court reversed appellant's conviction by reasoning: (1) "article 21.07 requires the State to allege ... the complainant's given name,” (2) "Officer” was thus an allegation of Lawson’s given name, (3) there was no evidence that "Officer” was Lawson’s given name, (4) therefore, there was "a fatal variance between the charging instrument allegation and proof of the complainant’s name.” Judge Baird’s reconfiguration of the issue as framed by the Court of Appeals “betrays a ... misunderstanding” of that court’s opinion.

2 . Although article 21.07 applies only to indictments, article 21.23 makes "the rules with respect to allegations in an indictment and the certainty required” applicable to informations.