Smith v. State

763 S.W.2d 836, 1988 Tex. App. LEXIS 3392, 1988 WL 147822
Court of Appeals of Texas·Decided November 16, 1988·No. 05-87-00690-CR·Published·Cited by 36 cases

Opinions

LAGARDE, Justice.

Following a plea of not guilty, appellant was convicted by a jury of aggravated assault and assessed a punishment of six years’ confinement and a $5,000 fine.

Appellant asserts three points of error; namely, (1) that there is a fatal variance between the name of the complainant as alleged in the indictment (Richad, Morrell) and the evidence adduced at trial (Richard Morrell) and that the variance is not idem sonans; (2) that the trial court erred in allowing the prosecutor to impeach an eyewitness with “have you heard” questions involving appellant’s alleged prior arrests; and (3) that the trial court erred in allowing a reputation witness to testify at the punishment phase of the trial without requiring disclosure of the identity of persons with whom he had talked about appellant’s reputation. We agree with appellant’s second point; consequently, we reverse and remand.

[839] Two Dallas police officers saw appellant sitting outside the door of an apartment they had under surveillance for the purpose of detecting narcotics trafficking. Suspicious that appellant was a lookout, the officers approached him and, as they got closer, appellant hit an alarm bell, pulled a pistol from his belt and pointed it at one of the officers as appellant ran. As appellant did so, he slipped and fell, dropping the gun. Appellant was then arrested and charged with aggravated assault. At trial, appellant testified that he got the pistol from a woman who lived upstairs for the purpose of returning it to another woman, and that as he was leaving, he saw the police, dropped the gun and ran.

In his first point of error, appellant asserts that there is a fatal variance between the indictment and proof at trial. The indictment alleged Richad Morrell as the complaining witness; at trial, the complainant testified that his name was Richard Morrell. The trial court overruled appellant’s motions for an instructed verdict based on this ground.

Inasmuch as this point of error, in essence, is a sufficiency point, it is necessary to address it in order to decide whether a proper disposition of this case is a remand for retrial or a remand with instructions to acquit. See Fulmer v. State, 731 S.W.2d 943, 946 (Tex.Crim.App.1987); Polk v. State, 704 S.W.2d 929, 935 (Tex.App.—Dallas 1986), aff'd, 738 S.W.2d 274 (Tex.Crim.App.1987); see TEX.R.APP.P. 90(a).

Appellant asserts that the variance here does not come within the rule of idem sonans. Under the rule of idem sonans, absolute accuracy in spelling a name is not required. The use of a name is merely to designate the person intended, and that object is fully accomplished when the name given has the same sound as his true name. Loven v. State, 145 Tex.Crim. 260, 261, 167 S.W.2d 515, 516 (1943). If the name as spelled, though different from the correct spelling thereof, conveys to the ear, when pronounced according to the commonly accepted method, a sound practically identical to the correct name as commonly pronounced, the name given is a sufficient identification of the individual referred to, and no advantage can be taken of the clerical error. Dingler v. State, 705 S.W.2d 144, 145 (Tex.Crim.App.1984); Polk, 704 S.W.2d at 935. A variance, to be material, must mislead a party to his prejudice. Raven v. State, 149 Tex.Crim. 294, 294, 193 S.W.2d 527, 527 (1946).

When a slight variance in spelling results in a totally different name, the variance has been found fatal. See, e.g., Escobar v. State, 578 S.W.2d 139, 140 (Tex.Crim.App.1979) (Daniel and Don). In addition to Es-cobar, appellant relies on Reynolds v. State, 58 Tex.Crim. 273, 124 S.W. 931, 931-32 (1910) (Rose and Liz); Grant v. State, 568 S.W.2d 353, 354 (Tex.Crim.App.1978) (Mary and Marion); Fulmer, 731 S.W.2d at 946 (Dan and Donald). Here, the variance is not between two names, but rather is a misspelling of Richard.

Appellant relies on the following evidence in support of his position that a fatal variance exists:

Q (By defense counsel) Is that your first name, Officer (indicating)?
A No, not with that spelling.
Q Can you pronounce that for us. Would you say Richad or Richard? Would you pronounce this for us.
A Richard.
Q Would you say that these two names are different?
A The spelling would be different, yes.
Q You say this is Richad; you say this is Richard. The pronunciation would be different?
A Yes.

Although the record is unclear, we note that the only pronunciation by the witness was Richard. Counsel, in his question, apparently pronounced Richad and the witness agreed that counsel’s pronunciation was different. There is no evidence, however, before this court that counsel was pronouncing the name as it would commonly be pronounced, or that the two names [840] were patently incapable of being sounded the same. See Fulmer, 731 S.W.2d at 946. Further, we note that this exchange took place outside the presence of the jury and the record does not reflect that it was ever redeveloped before the jury. The trial court did not charge the jury on idem sonans, nor does the record reflect a request by the defendant to present the issue to the jury, nor an objection to the court’s charge for the court’s failure to submit the issue.

If, before a jury, a fact issue requiring the application of the rule of idem sonans is raised by the testimony, the court, at the request of the defendant, should instruct the jury to resolve the issue. Martin v. State, 541 S.W.2d 605, 608 (Tex.Crim.App.1976). Questions involving the rule of idem sonans must be raised in the first instance at trial. If the issue is raised for the first time on appeal, it will be treated as having been waived and will present nothing for review. Id. Here, although not raised before the jury, the issue was raised before the court outside the presence of the jury and again as a basis for a motion for instructed verdict. See Gayton v. State, 732 S.W.2d 724, 726 (Tex.App.—Corpus Christi 1987, pet. ref’d). However, the Court of Criminal Appeals in Martin, after observing that appellate courts are rarely in a position to make a truly informed determination of whether two names could be or were pronounced to sound the same, further stated:

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Smith v. State, 763 S.W.2d 836, 1988 Tex. App. LEXIS 3392, 1988 WL 147822 (Tex. Ct. App. 1988).

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