Stevens v. State, 11-90-245-CR

• Court: Texas Court of Appeals
• Writing for the Court: DICKENSON
• Citation: Stevens v. State, 860 S.W.2d 132 (Tex. App. 1993)
• Decision Date: 17 June 1993
• Docket Number: No. 11-90-245-CR,11-90-245-CR
• Parties: Billy STEVENS, Appellant, v. STATE of Texas, Appellee.

Page 132

860 S.W.2d 132

Billy STEVENS, Appellant, v. STATE of Texas, Appellee.

No. 11-90-245-CR.

Court of Appeals of Texas Eastland.

June 17, 1993.

Richard C. Mabry, Abilene, for appellant.

James Eidson, Nelda Williams, Crim. Dist. Attorney's Office, Abilene, for appellee.

DICKENSON, Justice.

On Remand

The facts are stated in this court's opinion dated January 23, 1992. See Stevens v. State, 822 S.W.2d 810 (Tex.App.--Eastland 1992), remanded, 844 S.W.2d 753 (Tex.Cr.App.1993). The Court of Criminal Appeals granted discretionary review on May 20, 1992, to determine whether this court erred:

[B]y holding that the evidence was sufficient to support Appellant's conviction despite a variance between the victim's name as alleged in the indictment and the name proven at trial. (Emphasis added)

The Court of Criminal Appeals subsequently decided Ward v. State, 829 S.W.2d 787 (Tex.Cr.App.1992), holding that an amendment to an indictment is only effectuated by "the actual alteration of the charging instrument." The Court of Criminal Appeals then remanded this case for consideration of appellant's arguments "in light of Ward." We have now considered appellant's arguments pursuant to those instructions. The judgment of the trial court is affirmed.

The indictment alleged an aggravated sexual assault on "100589-040584, a male child younger than fourteen (14) years of age." The first six numbers indicate the date of the offense, and the last six numbers indicate the child's birth date. The numerical pseudonym was used by the Texas Department of Health and by the district attorney's office in compliance with TEX.CODE CRIM.PRO.ANN. art. 57.02 (Vernon Supp.1993). At the trial, the child's true name was used instead of the numerical pseudonym.

In view of the Court of Criminal Appeals' holding in Ward, we find that the indictment was not amended and that it alleged the numerical pseudonym, rather than the child's real name. The trial court erred in allowing the child's real name to be used when the indictment was read, when the evidence was introduced, and when the charge was submitted to the jury; however, there is no complaint as to these aspects of the trial.

Appellant argues that there is a fatal variance between the name alleged and the name proved. We find no variance because the State is not required to prove the name of the victim of a sexual assault when a pseudonym is used under Article 57.02 unless the "identity of the victim is in issue." Article...