Malone v. State

• Decision Date: 21 October 1981
• Docket Number: No. 68609,No. 2,68609,2
• Parties: Sylvester MALONE, Jr., Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 920

630 S.W.2d 920

Sylvester MALONE, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 68609.

Court of Criminal Appeals of Texas, Panel No. 2.

Oct. 21, 1981.

Discretionary Review Denied En Banc Feb. 24, 1982.

On Rehearing April 14, 1982.

Larry D. Dowell, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., James C. Brough, and Norma Davenport, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before ONION, P. J., and W. C. DAVIS and TEAGUE, JJ.

OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation. On June 11, 1980, appellant entered a guilty plea before the court to the offense of felony theft. Punishment was assessed at six (6) years' imprisonment and a fine of $500.00. Imposition of the sentence was suspended and the appellant was placed on probation subject to certain conditions including "(a) Commit no offense against the laws of this or any other State or the United States."

On November 25, 1980, the State filed its first amended motion to revoke probation alleging that on or about October 16, 1980, the appellant committed the offense of theft of services, "namely, transportation in a taxi, owned by Powell Battle ... of the value of over $20.00 (twenty) dollars and under $200.00 (two hundred) dollars without the effective consent of the complainant ..." The motion also alleged that on the same date appellant was in possession of a controlled substance.

On December 18, 1980, the court conducted a hearing on said motion at the conclusion of which the court revoked probation on the basis of the commission of the offense of theft of services alone. The court found the other allegation not to be true. Sentence was imposed eliminating the five hundred dollar fine originally imposed. Notice of appeal was given.

On appeal appellant raises two grounds of error. He contends there was a fatal variance between the allegations in the revocation motion and the proof adduced. He contends the revocation motion alleges the complaining witness was Powell Battle when the proof shows the person was Paul Battell.

Paul Battell testified he was a taxi driver and was the victim of theft of services by the appellant on October 16, 1980. The first question on cross-examination was an inquiry as to how the witness spelled his name. He replied, "B-a-t-t-e-l-l." During the revocation proceedings no question was raised as to the variance.

Reversal of conviction because of variance between allegation and proof of complainant's name is required if the names are patently incapable of being sounded the same. Escobar v. State, 578 S.W.2d 139 (Tex.Cr.App.1979). ¹ In Newson v. State, 142 Tex.Cr.R. 47, 151 S.W.2d 225 (1941), a burglary case, the indictment alleged the owner of the house as being "A. F. Houston" and the proof showed the owner's name was "J. F. Houston." It was held that there was a fatal variance. See also Garlington v. State, 141 Tex.Cr.R. 595, 150 S.W.2d 253 (1941); Marshall v. State, 157 Tex.Cr.R. 340, 248 S.W.2d 931 (1952); ² Jackson v. State, 419 S.W.2d 370, 371 (Tex.Cr.App.1967).

Powell Battle and Paul Battell are names which are patently incapable of being sounded the same. The names are not idem sonans.

Finding an abuse of discretion, the judgment is reversed and the cause remanded.

W. C. DAVIS, J., dissents.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

ODOM, Judge.

On original submission of this appeal from an order revoking probation, the Court held reversal was required due to a variance between the allegation and proof of the name of the complainant. Specifically, it was held, "Powell Battle and Paul Battell are names which are patently incapable of being sounded the same. The names are not idem sonans."

In reaching its decision, the panel on original submission overlooked the decision in Martin v. State, 541 S.W.2d 605, and two important rules announced there:

"We conclude that the resolution of questions involving the rule of idem sonans should be limited primarily to the trier of the facts. A trial judge or jury, having heard the pronunciation of the names in question by the parties involved, is in the better position to determine whether or not the names are or can be sounded the same; Fowler v. State, 379 S.W.2d 345 (Tex.Cr.App.1964); Jones v. State, supra; we will therefore refrain from disturbing on appeal a jury or trial court determination that names in question are idem sonans unless evidence shows that the names are patently incapable of being sounded the same or that the accused was misled to his prejudice. All decisions in conflict with the rule announced are hereby overruled." (Emphasis added. Footnote omitted.)

"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. Again, all decisions in conflict with the rule announced are hereby overruled."

The issue here was raised for the first time on appeal, so nothing is presented for review. ¹

The State's motion for rehearing is granted and the judgment is affirmed.

TEAGUE, Judge, concurring and dissenting.

I now find myself convinced that the names "Powell Battle" and "Paul Battell" are names patently capable of being sounded the same, and are idem sonans. I, must, therefore, join in Judge Odom's opinion on State's Motion for Rehearing.

However, I must dissent to the remainder of his opinion, because I still believe that this Court erred in its decision of Flanagan v. State, 620 S.W.2d 591 (Tex.Cr.App.1981), when it rejected my opinion that, if the name of the complaining witness and the name of the testifying witness are names patently incapable of being sounded the same, this is so fundamental to the law of allegata and probata that it constitutes fundamental error and may be raised for the first time on appeal.

On Appellant's Motion for Rehearing, in Flanagan, Id., Presiding Judge Onion, the author of the panel opinion in this cause, not only agreed with the majority of the panel opinion in Flanagan, Id., in which I dissented, but additionally stated that the names "Cecil Chatman" and "Cecil Chapman" are idem sonans. Today, however, he remains convinced that "Powell Battle" and "Paul Battell" are not idem sonans. How "Chatman" and "Chapman" are patently capable of being sounded the same and "Battle" and "Battell" are not capable of being sounded the same leaves one to express, "Color Me Amazed One More Time." See Aldrighetti v. State, 507 S.W.2d 770 (1974). However, because I believe that Presiding Judge Onion is correct in his opinion that the issue can be raised for the first time on appeal I join in his opinion, as well as Judge Clinton's opinion.

For the above reasons, I respectfully join in Judge Odom's opinion, and also join in Presiding Judge Onion's and Judge Clinton's respective opinions.

ONION, Presiding Judge, dissenting.

On the original panel submission it was held that "Powell Battle and Paul Battell are names which are patently incapable of being sounded the same" and the names were not idem sonans.

The en banc majority now holds that since the issue was raised for the first time on appeal nothing is presented for review. Martin v. State, 541 S.W.2d 605 (Tex.Cr.App.1976), was cited. It was not overlooked for even in Martin it was noted that a determination below by a judge or jury that the names in question are idem sonans will not be disturbed on appeal "unless evidence shows the names are patently incapable of being sounded the same or that the accused was misled to his prejudice."

In my opinion the names here in question are patently incapable of being sounded the same as pointed out in the panel opinion.

By holding that nothing is presented for review, the majority infers that the Powell Battle and Paul Battell are capable of being sounded the same. The only reasoning is found in footnote # 1 on the basis that "Paul" is pronounced in German communities as "Paool" sounding the same as "Powell." I didn't know until today that Harris County was a German community. Certainly the record doesn't support the same or show that the parties or others involved spoke German or even spoke English using German pronunciation. Further, the majority engages in some type of improper judicial notice as the pronunciation of the name of a Houston department store.

To me the question is not even a close one. I dissent and also wholeheartedly join Judge Clinton's dissent.

CLINTON, Judge, dissenting.

The opinion of the Court finds nothing is presented for review because, in its view, the idem sonans issue is "raised for the first time on appeal." But the rationale of opinions such as McKinney v. State, 149 Tex.Cr.R. 452, 195 S.W.2d 365 (1946) and Herrera v. State, 623 S.W.2d 940 (Tex.Cr.App.1981) dictates that the issue be considered. ¹ On original submission, a panel of the Court with one judge dissenting concluded that the name alleged-Powell Battle-was patently incapable of being sounded the same as the name of the complainant which was established by proof: Paul Battell. Holding the names are not idem sonans, the panel majority determined the names fatally varied and reversed the judgment.

The State's motion for rehearing aptly points out apparent conflicts in the cases dealing with the matter of "identity of person." Research reveals, however, not so much conflict in the authorities, as diligent efforts appropriately to dispose of the myriad nuances of the problem which may arise. Convinced that the decisions, when viewed in context, are in harmony, I turn to explicate that context. ²

I. Identity of Person

The general proposition of evidence on which to begin is that similarity of a name proved to the name alleged raises a rebuttable presumption that the "identity of the person" alleged is established. Ex parte...