*1 ODOM, G. TOM DAVIS CLINTON, JJ. COX, Appellant, James OPINION Texas, Appellee. The STATE of DAVIS, Judge. TOM G. 59385. No. for is taken a conviction Appeal Texas, Appeals
Court Criminal After building. burglary of a No. Panel court assessed guilty, appellant eight years. punishment at 17, Sept. error, ground appellant In his second 17,
Rehearing Denied Dec. sufficiency the evidence. challenges the is a fatal variance He maintains that there allegation and between the complainant’s name. alleges
The indictment the instant case name was Emma Dunn. At Dunn, Emma was Erma
that her name than further stated other She Dunn, legal Black her Erma only name she had ever been other Jackie. rested, called appellant After the State to the matter of court’s attention in- way of motion for an variance his Although structed verdict. issue,
instructed to resolve the may be evidence that “Erma” and same, no evidence pronounced the jury charge. a ma- argues that “given the dialect terial variance Texas,” common in east The record sonans. and Emma are idem as to this “east no evidence reflects that at was offered the time Texas dialect” trial. State, Tex.Cr.App., 541 Martin 605, stated: ‘If the names doing violence to orthogra- found in the variant letters as stated be idem
phy, name, the variance sonans with true Files, Jr., appellant. Tyler, F. R. for in 30 And immaterial.’ III, Tex.Jur., phrase is said: ‘This Clark, page Dist. and William Atty. A. D. sound,” Saban, “of the same Atty., Tyler, Dist. Robert means D. Asst. finds
Huttash, Austin, attentive ear are idem sonans if the Atty., distinguishing them State. *2 220 the court en banc. long-con- or if
pronounced, common has identical in usage tinued made them rules irrespective of the of
pronunciation,
FOR
ON STATE’S MOTION
words, identity
of
orthography.
REHEARING
method
regarded
is
a surer
of
sound
as
DOUGLAS,
dissenting.
Judge,
names than
measuring
similarity
the
long
and so
as the
identity
spelling,
submission,
panel
the
re-
original
On
do-
alike “without
names can be sounded
the evidence
versed this conviction
letters,”
the
violence to the
ing
fatal
in that
was insufficient
immateri-
orthography
variation in
is
alleged
variance in the indictment
al, provided
misspelling
the
does not
Emma Dunn and
as
complainant’s
the
name
wholly
transform
name into a
distinct
to be Erma
her name
showed
”
appellation.’
went on
The Court
in Martin
to
rehearing is in
The
motion
from dis
that this Court will refrain
state
opinion.
this
adopted
part
as a
part
appeal a
that
turbing
on
determination
to
[Tjhere
evidence
question
in
were idem sonans.
that, under this
finding by
jury,
However,
required
reversal will be
record,
‘Erma’ are idem sonans.
‘Emma’ and
patently
shows that the names are
evidence
jury:
charged the
“The trial court
Esco
the same.
un-
that
‘You are further
instructed
Tex.Cr.App.,
bar v.
beyond a
less
find from the evidence
State, Tex.Cr.App.,
v.
568
Grant
the name “EMMA
that
reasonable doubt
353, was
found that
names
S.W.2d
Indictment, and
appearing in the
DUNN”
incapa-
patently
and “Marion”
“Mary”
in
to
this
testified
“ERMA DUNN” as
same.
It was
ble of
sounded the
in
usually are or can
effec-
misspelling
that
further noted
way
names are indistin-
such a
that
“Mary”
into a
tively transforms
ear finds
guishable, or that the attentive
appellation,
i. e.
wholly distinct
Marion.
them when
distinguishing
State, supra, we
Likewise in Escobar v.
you will find the Defendant
pronounced,
“Donald”
“Dan” and
found that the names
guilty.’
sounded the
he
same after the
evidence,
jury heard the
“As to the
alleged
name
never been known
had
name ‘Erma’
pronounce the
complainant
in the indictment.
jury also heard
and the name ‘Emma’.
the name ‘Emma’.
prosecutor
In the instant
pronounced both
attorney
And the defense
had ever
complainant
evidence that
of the
presence
As
Emma.
been
name
tes
Escobar,
[Tex.Cr.App.]
find
“In Martin
she
as to the
had
timony
various
said:
evidence that
by,
been known
constitutes
appellate
‘Inasmuch
courts are not
as
the names Erma and Emma
record, they
reading
a “cold”
limited
same. Last
truly
in a
rarely
position
to make
we note that the
ly,
whether two
informed determination of
the name into
effectively
transforms
names could be or were
i. e. Emma.
appellation,
distinct
wholly
sound the same. We conclude
For these
we conclude
involving the rule
questions
resolution
thus
are not idem sonans and
primari-
sonans
be limited
of idem
support the con
evidence is insufficient
judge
A trial
trier of
facts.
ly to the
viction.
having
parties
by the
question
the names in
and reformed
judgment
reversed
involved,
position
deter-
the better
acquittal.
to show an
‘Dooley’,
York
New
& T.
‘Doorley’ and
mine whether or
the names are or can
... we will there-
Tex.Civ.App.
same
Dooley,
Land Co.
appeal
fore
disturbing
refrain from
determination that
or trial court
‘Wafford’, Western Un-
‘Warford’ and
question
names in
are idem sonans unless
*3
Wafford,
“Bearing in holding: mind the Martin who former President of the United States ‘... unless evidence shows that happened sounded to be from Massachusetts would same’, points might out that there no be example. be an The word “card” showing evidence in this record as “cod”. northeasterner two names are judicial not should take This Court sounded the same. “Emma” could knowledge that “Erma” effect, ‘yes, reports “When the Texas in East alike not be we heard evidence that slurred in “r’s” are it is common that so ’ capable “Erma” pronunciation some areas and alike, respectfully the State submits that jury sound the same. In this to, this Court should hesitant extremely be if the words were instructed to consider effect, say, what see did ‘From and the capable of the same not hear such evidence.’ finding they This were. “To find as a of law that ‘Erma’ matter court and be left alone. trial should and ‘Emma’ are passed witnesses and rejection requires sweeping Court, which upon they heard. This what contrary. probability reasonable witnesses, should sub- did not hear sweeping rejection Such a and the itself for the trial court stitute made due ca- consideration slur, ‘r’s’ pability many to use soft motion for For the State’s these no ‘r’s’ at all. granted. rehearing should be seems to “Since it is ‘r’ in problem, we the follow- causing cite DAVIS, JJ., join in and W. C. to be DALLY ing cases where the names were held idem sonans: dissent.