Flanagan v. State

hypothesis except guilt reasonable that of DAVIS, Before TOM G. McCORMICK of the defendant. v. Tex. Schershel TEAGUE, JJ. 548; Cr.App., Bryant 575 S.W.2d v. Tex.Cr.App., Thus S.W.2d 109. OPINION strong suspicion which amounts to a probability mere Ford v. insufficient. DAVIS, Judge. TOM G. State, Tex.Cr.App., 571 S.W.2d 924. How Appeal is taken from a conviction for ever, every case circumstantial evidence burglary. Trial was before the court and by necessarily must be tested its own facts punishment was years pro- assessed at five sufficiency to determine the evidence bated. support the conviction. Earnhart v. ground error, his appellant second State, Tex.Cr.App., Lastly, S.W.2d challenges the sufficiency of the evidence to the rules of evidence do not circumstantial support his conviction. The relied require that circumstances should to a mor upon circumstantial evidence. certainty actually every hypothe al exclude pertinent part may sis that the act have been committed 31, 1977, on October appellant did: person, hypothesis another but the in- nothing for review.” Id. at 607 and 608. tended is a reasonable one consistent with circumstances, supplied). proved (Emphasis the facts and the supposition that the act have been This Court has considered the issue of person not be committed another must complainant’s name when variance in the harmony out of with the evidence. Sullivan preserved been for review in the issue has State, Tex.Cr.App., compliance supra. with Martin State, Tex.Cr.App., 608 S.W.2d See Cox case evidence instant 219; State, Tex.Cr.App., Escobar v. shows that another were Escobar, 139. In Cox and there was property directly Chap found on behind proved presented evidence at trial which property, immediately prior man’s at a time that the names as and the names as Chap discovery to the at proven patently incapable were man’s Appellant house. and the other indi sounded the same. approached by vidual fled when disposed tape player Wilson and of a cause, alleged variance In the instant carrying. radio which had been De- involving was called to the idem sonans not corte disposed property recovered the of did not Appellant trial court’s attention. tape player testified that any at trial which showed present evidence and radio were the items of stolen Chapman are that the names property burgla returned him after incapable being of sounded the patently ry. allege Finally, appellant does not same. prejudice, to his in that that he was misled every The evidence excludes reasonable raise the issue of this he does not even hypothesis except for that of alleged appeal. Having failed variance on guilt. Appellant’s ground second of error present to raise the contention at trial should be overruled. idem showing evidence the names are not complaint While no was made sonans, has not been alleged variance in either the trial court or on in a preserved and should not be considered appeal, the dissent finds that there is a challenges the generally contention which material variance proof between the evidence to sufficiency of circumstantial regard complain to the support appellant’s conviction. finding ant’s name and based on such con error, ground appel of his first cludes that the evidence is insufficient In does not have lant maintains this Court support the conviction. The indictment ap appeal and that the jurisdiction of this the home was owned Cecil peal should dismissed. He contends Chatman, while at trial the owner stated improperly pronounced Court “[t]he Chapman. his name to be Cecil expira sentenced the Defendant before In The issue is thus one of idem sonans. of the days ten from the conclusion tion of State, Tex.Cr.App., Martin S.W.2d right of the a written waiver trial without 605, this held: Court and a motion to file a motion for new trial “. .. we will therefore refrain from dis- judgment.” in arrest of turbing appeal jury trial court at the conclusion The record reflects that question determination that the names in trial, appellant guilty by found of the are idem sonans unless evidence shows years, five punishment the court and patently incapable that the names are probated, Immediately assessed. thereaft- or that the ac- sounded same er, appellant gave appeal. notice of No prejudice.... cused was misled to his new attempt made to file a motion for Questions involving “. .. the rule of idem judgment. trial or motion in arrest of sonans must be raised in the first in- in- punishment stance at trial. If the issue is raised for The assessment of constitute a sentence. appeal, the first time on it will be treated stant case did not Moreover, 37.07(3)(d), V.A.C.C.P. having present been waived and will Art. See rested, suspended imposition arguments in view of the After both sen- sides tence, 42.04, presented by appellant’s argu- under the terms of counsel. In Art. V.A.C. ment, C.P., he informed the trial court: “Your pronounced no sentence was before Honor, I think that this is one of these cases appeal this was taken. important tryer

where it is that the of the In those cases in which sentence is vividly facts recall the burden on the State pronounced days judg within ten prove beyond its case a reasonable ment, day without waiver of the ten doubt.” “I think that this is a case where period in which to file a motion for new Thus, wholly have failed to do that.” trial or motion in judgment, arrest of put appel- the trial court was on notice that premature claiming sentence is and voidable. Ex lant was the evidence was Shields, finding guilty, Parte insufficient to warrant a Tex.Cr.App., 550 670. e., allegations proof If the that the did not premature sentence is and a defend correspond to one another. His motion for objects ant at trial or raises the contention guilty a verdict of not was denied. appeal, in his brief on this Court will dis miss the Parr v. Tex.Cr. A variance in the of an fatal App., 575 proof indictment and the will render the evidence insufficient to sustain a conviction. In the instant the court’s action did See Williams v. 49 Tex.Cr.R. deprive appellant not right of his to file a where the S.W. W. motion for new trial or motion in arrest of Yates, F. but the showed F. W. E. judgment. probated view of the nature Yates, held, requiring fatal variance rever- sentence, no imposed. sentence was sal. Moreover, pronounced no sentence was be- appeal proof cause notice of Where the name and the given. Follow- will, course, vary, ing judgment always the there of be a punish- and assessment of variance, ment, but for reversible error to occur days had ten in which to there must be a fatal or material variance file the Appellant’s motions. ground first proof. between the and the Al- of error is not supported by the record and though pre- the burden is on the State is overruled. indictment, pare proper of the because judgment is affirmed. nuances of sound in a witness’ articulation name, of a of idem sonans was doctrine TEAGUE, Judge, dissenting. adopted. regarding orthography, The law not no appeal This is an from a conviction name, misspelling harm comes from trial court for the offense of of a provided it is idem sonans with the true punishment habitation with assessed at five spelling.... may If the names years’ probation. doing sounded alike without violence Appellant charged by power of the letters found in the with intentionally and knowingly entering a is orthography, variant then the variance habitation of Cecil Chatman with the intent being rule immaterial .... The true to commit theft. The appeal record on material, misspelling, to be must have reveals the name complaining of the wit- changed the word intended into another ness Chapman.1 to be Cecil having meaning. Pye word a different Appellant challenges sufficiency State, 94, of 222 71 Tex.Cr.R. 154 S.W. the evidence in his (1913).2 name, document, spelled 1. We observe from the record that 2. “If as the first complainant, though spelling witness for the State was not the different from the correct neighbor ear, complainant thereof, conveys pronounced but a by who referred to the to the when methods, Chapman. according commonly accepted the last name of We also ob to the appeal attorneys practically serve the use the name correct a sound identical with the commonly pronounced, in their briefs. the name thus name as 596 307, 2781, State, 592,

In Chaverea v. U.S. S.Ct. 61 L.Ed.2d 560 Tex.Cr.R. said; (1941), 150 S.W.2d 241 this Court (1979). ****** 401, Tex.App. Westbrook v. . . . The rule of idem sonans is stated as (Court 1887), Appeals directly S.W. 248 Ann.Tex.P.C., follows in Branch’s sec. point there we held this cause for page 11: ‘If the names be sounded Chapman and are not the same doing power alike without violence to the are not sonans as a matter name and idem orthog- of the letters found in the variant Code, Penal of law. also Branch’s Ann. See raphy, ifor the name as stated be idem I, page Edition Vol. 32. The Second name, sonans with the true the variance indictment and at fatal vari- misspelling is immaterial.’ And in 30 ance such as to render the evidence insuffi- Tex.Jur., page phrase it is said: ‘This support burgla- cient to a conviction for the sound,” means “of the same and names Chatman, ry of the residence of Cecil are idem sonans if the attentive ear finds alleged, judgment should be reversed difficulty in distinguishing them when acquittal. and reformed to show an Burks pronounced, if long-con- common and States, v. United 437 U.S. S.Ct. usage tinued has made them identical in (1978); Massey, 57 L.Ed.2d 1 and Greene pronunciation, irrespective of the rules of 2151, 57 L.Ed.2d 15 437 U.S. 98 S.Ct. words, orthography. identity In other (1978). regarded sound is as a surer method of measuring similarity feel, of names than effectively majority, I does not identity spelling, long and so as the dispose regarding contention that: turbing termination that names in Tex.Cr.App., 541 S.W.2d idem sonans unless evidence shows that the names are sounded the same or that names are not idem sonans as a matter of law, misled to his Although we held in Martin v. transform appellation. any al, provided ing names can be sounded alike ‘without do- then the “[W]e ^[******] violence to the variation in on appeal will therefore refrain from dis- patently incapable prejudice,” question Id. at 242. name orthography a jury misspelling power into a of the nevertheless, the accused was wholly trial sufficiency question is immateri- 607 does not court letters,’ distinct (1976), if the are de- jority opinion by fendant. that cause had also found an identical issue as in Cox as the guilty. reversed the verdict of the supra. instructed the the structed verdict on the basis of the motion was overruled but the trial court cuss the most recent decisions of this Court and the name the variance between Cox jury Grant, Cox, Nevertheless, did Nevertheless, the defendant moved State, supra, this when it found the defendant jury Chapman. Court the author of this to resolve the issue and this was confronted with the name Chatman this Court reversed. or Grant v. Nor does it Court, jury. against for an in- in a ma- variance, opinion, the jury dis- de- may appeal, the evidence on raised even panel Today, majority the of this affirms where jury given a has been an instruction conviction, I dis- to which action against to resolve the issue and has found sent, closing but in I ask: If Cox and Grant State, Tex.Cr.App., the defendant. Cox v. reversal, this why called for then should (1980); State, 608 S.W.2d 219 v. Escobar conviction not also be reversed? Tex.Cr.App., (1979); 578 S.W.2d 139 Grant I dissent. State, Tex.Cr.App., v. 568 353 S.W.2d (1978). Virginia, See also Jackson v. 443 Before the en banc. Court

given (5th 1979). is a sufficient identification of the individ- 670-671 ed. See also Pedrosa v. to, State, advantage ual referred and no can be taken 155 232 S.W.2d 735 Tex.Cr.R. (1950). Dictionary of the clerical error. Black’s Law

597 court transcription of the The Chatman.” MOTION ON APPELLANT’S OPINION the witness who shows that reporter’s notes REHEARING FOR owner was Charles was the he testified ONION, Presiding Judge. way the court that is the Chapman, at least and Appellant was convicted asked name. No one reporter spelled his at by the court punishment his was assessed record, name for the spell his the witness original sub- (5) years, probated. On five and no issue raised at trial no issue was and was affirmed a mission his conviction never Appellant thus was raised panel opinion. names the any evidence presented dissenting opinion contend- The one-man patently “Chapman” are “Chatman” variance be- ed that there was a material the same being sounded incapable of tween the in the indictment sonans. are not idem proof. It notes that the indictment however, descrip- concern, Our alleged the owner to be Chatman” “Cecil State, holding in Westbrook tion of the the owner to be “Ce- and the showed dissenting opinion. It supra, given by the Chapman.” cil opinion held that Westbrook stated that the if the names are The dissent noted that “Chapman” are not “Chatman” law, not idem sonans as a matter of then as a not idem sonans names and are same sufficiency the evi question of the law. matter of appeal, even where dence be raised on that it is not essential Westbrook held given jury has been an instruction forged out the forgery indictment set against the resolve issue and has found its tenor purport and instrument both its State, 608 defendant and cited Cox v. however, sets If, clauses. (Tex.Cr.App.1980); 219 Escobar v. by both alleged forged instrument out the State, (Tex.Cr.App.1979); 578 S.W.2d 139 clauses, any repug- purport and its tenor its (Tex.Cr. Grant allegations is fatal the two nancy between App.1978). purport clause to the indictment. The dissent called attention to Westbrook alleged the Westbrook indictment Tex.App. S.W. J. injured party to be “C. names of the “Chapman” and stated that it held clause the tenor Chapman,” whereas are “Chatman” are not the same names and The court J. the name to be “C. Chatman.” not idem sonans as a matter of law. The stated: dissent would reverse because of a fatal repugnancy variance and “Because the variance. clauses and tenor purport between panel the dis- majority of the noted to the extent are irreconcilable that the issue had position indictment, judgment sent’s and stated invalidate the or on not been raised in the trial court is dis- reversed, prosecution and the urged only by the appeal and had been missed.” dissent. Martin v. 541 S.W.2d opinion shows An examination quoted: (Tex.Cr.App.1976), 608 was Chapman are and observed Chatman court Questions involving the rule of “.. . any name, to find but we fail the same not in the first idem sonans must be raised rule of holding relating to the or discussion trial. If the issue is raised instance at Westbrook Certainly the sonans. idem will be treated appeal, the first time on it dissenting by the as stated not, did court present having been and will as waived and opinion, hold that Chatman ” nothing for review ... . of law. a matter sonans as are not idem granted the motion for The en banc court State, v. light of Martin in We conclude rehearing limited to the above described correct majority was panel supra, that the contention. raise late to holding that it is too in time first for the of idem sonans question record shows the An examination of the on to be “Cecil indictment the owner

598 v.

Further, were held to be idem sonans. Smith if the contention can now raised, State, (Tex.Cr.App.1971). we observe that the rule of idem 468 824 applies overruling sonans and calls for the instant we hold that In the rehearing. motion for If the name of “Cecil Chatman” in doing names be sounded alike without given to the Chapman” and the name “Cecil power violence to the of the letters found in reporter court prosecuting witness orthography, the variant or if the name as that West- are idem sonans. To the extent name, stated be idem sonans with the true State, with this supra, brook v. is in conflict misspelling the variance is immaterial. and decision, it is overruled. 39, Ann.P.C., ed., p. 1 Branch’s 2nd § rehearing is over- Appellant’s motion for “Names will be considered identical ruled. bring similar as to them within the so identity of scope presumption TEAGUE, Judge, dissenting. person regarded if can be as idem the Westbrook court did It is true that sonans, or ‘of the same sound.’ Names ordinary expressly in common not state if distin- are idem sonans it is difficult to Chapman are English that and guish pronounced, them when or if com- But, not idem sonans as a matter of law. long usage mon and continued has made the Westbrook pronunciation.” question 40 Tex. no one should that them identical in Rev., 2, 21, are “Chapman did hold: and Chatman p. Jur.2d Part court § added) (emphasis not the same name.” following names have been held State, Tex.App. idem 1 sonans. Foster v. is that majority What the fails to note (1877) (“Foster” “Faster”); Henry State, 531 5 Tex.App. 23 S.W. Westbrook v. State, (1879) (“White Tex.App. v. 7 388 Branch’s Ann.Penal 248 is cited in State, “Whitman”); man” and top- Bronson Code, (1956), under the Edition Second (1910) (“Dar 59 Tex.Cr.R. 127 175 sonans,” S.W. words ics “Idem and “Names and State, “Donnell”); nell” and 72 Gatlin sonans,” see 40 and 41. held not idem Secs. (1914) (“Janes” Tex.Cr.R. 163 428 S.W. dissenting opinion original say my I did in State, “James”); Jones v. 115 Tex.Cr.R. proposition Westbrook stands for the that (“Holland” (1930) 27 S.W.2d 653 “Chapman and Chatman are not “Hollins”); State, Raseley v. 470 S.W.2d sonans as a name and are not idem same (Tex.Cr.App.1971) (“Raseley” law,” which was based matter of “Roseley”); 166 Tex.Cr.R. Sikes interpretation of Westbrook. Branch’s (1958) (“Vogelsang” is, course, oftentimes cited Branch’s “Voglesang”); Martin v. work this Court. an authoritative (“Dianna” (Tex.Cr.App.1976) .2d 605 S.W work, I felt that light of this authoritative “Dina”). Thus, I not be all bad. interpretation could agree still with Branch’s agreed then and injured party Where the name of the idem Chapman are not that Chatman and throughout correctly spelled “Mahaffey” interpretation actually radi- sonans. Such record, spelled the fact it worm, giving glow dark like a ates cre- “Mahaffrey” the indictment did not light strength such brightness off a ate a fatal variance between the disagree with this inter- that no one should the indictment and the since the worm, albeit, glow it is pretation, like the names of like sound and therefore so not stated. idem sonans. Jenke v. 487 S.W.2d (Tex.Cr.App.1972). alive, sonans was The doctrine of idem long be- well, both Further, breathing in Texas prosecution in a theft where and was decided time Westbrook charged property fore and at the information by the Wallman,” years ago, as evidenced prose- stolen from but the almost 100 “Carl supra, in Branch’s case citations cuting by the court numerous witness was named majority of Waldman,” today Yet a names in 40 and 41. reporter as “Carl Sec. to the Unit- Fourteenth Amendment Chap- or the and holds that Chatman this Court I, 19, Constitution, sonans, overruling or Art. Sec. West- man are idem ed States Constitution; is a fatal vari- there implication that own long-standing brook’s our only allegata probata, state majority would are not. If the ance between reversed, affirmed. not reasoning why with should be the cause sounding the are now to be construed as respectfully I dissent. same, its deci- agree I could perhaps not, respectful- But, I must sion. as it does overruling

ly to its Westbrook. dissent

Martin, Westbrook, the case that not overruled, violence to for it does

should be of law that the has principle an indict- prove what it in

burden

ment. May ? I But what about Cox and Grant RHYNE, Wayne Appellant, Michael suggest majority that while it has its out, “technicality” in erasing brush burglary merely Texas, this which involves Appellee. STATE fatal variance between the name of the 61049. No. proved, complainant alleged and the name overrule Cox go step that it one further and Texas, Appeals of of Criminal Court least, Grant, or at for the bench 2. Panel No. bar, them, distinguish if can be distin- guished from Martin. June anyone who What should be obvious Sept. Rehearing Denied is that opinions reads all of the in this cause Court, it is

until this cause reached this court

readily apparent that neither the trial

judge prosecutor nor the read this reflects that

indictment. docket sheet reading of the indictment was waived

by appellant.1 Though might what be “technicality,” always I

called another

thought that a material variance between proved

what was and what was

equals insufficient evidence. If insufficient something

evidence is not that should justice,” then

reviewed in the “interest of past Legislature abolished Sec. 13

when the 40.09, intentionally, perhaps it did so Art. Cf., not, think, inadvertently. many

however, Virginia, Jackson v. 443 U.S. (1979).

99 S.Ct. 61 L.Ed.2d properly preserved

I feel the error is

review, though even it must be reviewed V.A.C.C.P., 40.09,

pursuant to Art. Sec. my might appear Our dissenting opinion, in the record preparing 1. Prior to this Schutze, staff, again once confirms and I review Jan Breland and Kenneth Chatman,” name, again carefully is the “Cecil this record with once reviewed where, in this record. comb to see other than found fine tooth indictment, the name “Cecil Chatman”

Case Details

Case Name: Flanagan v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 10, 1981

Citation: 620 S.W.2d 591

Docket Number: 60187

Court Abbreviation: Tex. Crim. App.