Martin v. State, 50921
Decision Date | 06 October 1976 |
Docket Number | No. 50921,50921 |
Citation | 541 S.W.2d 605 |
Parties | Renrick Kennedy MARTIN, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
James H. Martin, Dallas, for appellant.
Henry M. Wade, Dist. Atty. Steve Wilensky and Paul D. Macaluso, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
DALLY, Commissioner.
This is an appeal from a conviction for the offense of aggravated robbery; the punishment is life imprisonment.
It is urged that there is a material variance between the allegation and the proof of the name of the complainant, and therefore the evidence is insufficient to sustain the conviction. The indictment alleges that the complainant's name is DIANNA LYNCH SYKES; the transcript of the court reporter's notes reflects that the complainant's name is DINA JONES SYKES.
A middle name or initial may be disregarded; a material variance between the allegation and the proof of the middle name or initial is neither material nor fatal. See Dixon v. State, 2 Tex.App. 530 (1877); Delphino v. State, 11 Tex.App. 30 (1881); Hill v. State, 103 Tex.Cr.R. 580, 281 S.W. 1071 (1926); Williams v. State, 461 S.W.2d 614 (Tex.Cr.App.1971); Cepeda v. State, 489 S.W.2d 907 (Tex.Cr.App.1973); Swaim v. State, 498 S.W.2d 188 (Tex.Cr.App.1973). The variance between the allegation that the complainant's middle name was Lynch and proof that her middle name was Jones is neither material nor fatal.
There is no evidence that the complainant was known by the name DIANNA SYKES. See Article 21.07, V.A.C.C.P.; Brown v. State, 171 Tex.Cr.R. 692, 353 S.W.2d 425 (1962).
The question presented is whether there is a material variance between the allegation of the complainant's given name as Dianna and proof that it is Dina. The State argues there is not a material variance because the names Dianna and Dina are idem sonans.
The application of the rule of idem sonans, which means names are the same that have the same sound or sound the same, varies from jurisdiction to jurisdiction. See 65 C.J.S. Names § 14, pp. 35--39, and 57 Am.Jur.2d, Names, Sec. 17, pp. 285--286. In Stresser v. Ress, 165 Neb. 858, 87 N.W.2d 619 (1958), it was noted that:
The appellant has directed our attention to the test commonly applied in this jurisdiction, which is set out in Pedrosa v. State, 155 Tex.Cr.R. 155, 232 S.W.2d 733 (1950), as follows:
'In the case of Chaverea v. State, 141 Tex.Cr.R. 592, 150 S.W.2d 241, 242, we restated the rule governing the doctrine of idem sonans, as follows: 'The rule of idem sonans is stated as follows in Branch's Ann.Tex.P.C., sec. 22, page 11: 'If the names may be sounded alike without doing violence to the power of the letters found in the variant orthography, or if the name as stated be idem sonans with the true name, the variance and misspelling is immaterial.' And in 30 Tex.Jur., page 602, it is said: 'This phrase means 'of the same sound,' and names are idem sonans if the attentive ear finds difficulty in distinguishing them when pronounced, or if common and long-continued usage has made them identical in pronunciation, irrespective of the rules of orthography. In other words, identity of sound is regarded as a surer method of measuring the similarity of names than identity of spelling, and so long as the names can be sounded alike 'without doing violence to the power of the letters,' any variation in orthography is immaterial provided the misspelling does not transform the name into a wholly distinct appellation."'
However, that the rule has been often articulated has not rendered easy its application; a review of the cases leaves the impression that the rule has not been applied with that fine degree of precision required to produce uniform results. A century ago in his opinion in Goode v. State, 2 Tex.App. 520, 524 (1877), Judge White noted in discussing the rule of idem sonans that, 'The books abound in hairbreadth distinctions . . .;' we note that today the books appear to be in much the same condition. In Davis v. State, 88 Tex.Cr.R. 7, 224 S.W. 510 (1920), the Court stated the following:
In Strasser v. Ress, supra, the Nebraska Supreme Court reached the same conclusion as follows:
Also see Raven v. State, 149 Tex.Cr.R. 294, 193 S.W.2d 527 (1946); Jones v. State, 115 Tex.Cr.R. 418, 27 S.W.2d 653 (1930); Article 21.07, V.A.C.C.P.Ann. note 15; 1 Branch's Penal Code (2d ed.), 31 Secs. 39, 40, and 41.
The reasons for the disharmony in the case law on idem sonans are not difficult to discern. The rule depends for its application on the intricacies and foibles of articulated speech; its application must suffer the consequences of accents, dialects, and the peculiarities of localized or personalized pronunciations. It is difficult in the preparation of an appellate record for a court reporter to accurately describe on a printed page the nuances of sound in a witness's articulation of a name. Even on those occasions when a witness is asked to sound out a name phonetically, it is not easy to capture on paper the accent with which the witness spoke. In Dennington v. State, 98 Tex.Cr.R. 332, 265 S.W. 698 (1924), faced by a variance between the names Alene Trimmer and Eileen Trimier, the Court recognized the dilemma thus presented to an appellate court:
And see Brady v. State, 122 Tex.Cr.R. 279, 55 S.W.2d 104. It is for these reasons...
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Post-Trial Issues
...shows that the names are patently incapable of sounding the same or that the accused was misled to his prejudice. Martin v. State, 541 S.W.2d 605 (Tex. Crim. App. 1976). PRACTICE TIP: In order to properly defend a case where the issue of idem sonans has developed, defense counsel must: De......
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Post-Trial Issues
...shows that the names are patently incapable of sounding the same or that the accused was misled to his prejudice. Martin v. State, 541 S.W.2d 605 (Tex. Crim. App. 1976). PRACTICE TIP : In order to properly defend a case where the issue of idem sonans has developed, defense counsel must: D......
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Post-Trial Issues
...shows that the names are patently incapable of sounding the same or that the accused was misled to his prejudice. Martin v. State, 541 S.W.2d 605 (Tex. Crim. App. 1976). PRACTICE TIP: In order to properly defend a case where the issue of idem sonans has developed, defense counsel must: De......
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Post-Trial Issues
...shows that the names are patently incapable of sounding the same or that the accused was misled to his prejudice. Martin v. State, 541 S.W.2d 605 (Tex. Crim. App. 1976). PRACTICE TIP : In order to properly defend a case where the issue of idem sonans has developed, defense counsel must: D......