Stevens v. State

• Court: Texas Court of Appeals
• Writing for the Court: DICKENSON
• Citation: Stevens v. State, 822 S.W.2d 810 (Tex. App. 1992)
• Decision Date: 23 January 1992
• Docket Number: No. 11-90-245-CR,11-90-245-CR
• Parties: Billy STEVENS, Appellant, v. STATE of Texas, Appellee.

Page 810

822 S.W.2d 810

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

No. 11-90-245-CR.

Court of Appeals of Texas Eastland.

Jan. 23, 1992.

Discretionary Review Granted May 20, 1992.

Richard C. Mabry, Abilene, for appellant.

James Eidson, Nelda Williams, Crim. Dist. Attys. Office, Abilene, for appellee.

OPINION

DICKENSON, Justice.

The jury convicted Billy Stevens of aggravated sexual assault ¹ and assessed his punishment at confinement for 37 years. ² We affirm the conviction.

Background Facts

The indictment alleged that appellant committed the offense on or about September 15, 1989, against "100589-040584." When the indictment was read to the jury the prosecutor substituted the child's name for the numerical pseudonym at each of the four places where the indictment had used the numbers to protect the child's identity. ³ There was no objection to the substitution of the real name of the child for the numerical pseudonym. The child's real name was used throughout the testimony, in the court's charge to the jury, and in counsels' arguments. There was no complaint in the trial court to the substitution of the real name for the numerical pseudonym.

The jury was free to believe the testimony of the child ⁴ and his mother. ⁵ The jury was free to reject the testimony of appellant (in which he denied the commission of the offense) and the testimony of his mother and other relatives who testified on his behalf. As an appellate court, we are required to view the evidence "in the light most favorable to the verdict" in deciding whether a rational jury could find every element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ransom v. State, 789 S.W.2d 572 at 577 (Tex.Cr.App.1989), cert. den'd, 497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 765 (1990).

Points of Error

Appellant presents two points of error which read in full as shown:

The trial court erred in that the State's evidence was insufficient to support a conviction for aggravated sexual assault, when there was a material and fatal variance between the name alleged and the name proved.

The trial court erred in holding the evidence to be sufficient when the offense charged was not the offense proved. (Emphasis added)

In connection with both points of error, appellant argues that the indictment for an offense against "100589-040584" and proof of an offense against "[the child's legal name]" constitutes a fatal variance which requires a reversal and acquittal. We disagree.

Reasons for Decision

There was no variance between the proof and the allegations of the indictment as read to the jury. If appellant had any objection to substituting the child's legal name for the pseudonym when the indictment was read to the jury, he should have objected at that time. TEX.R.APP.P. 52(a). This would have allowed the trial court an opportunity to cure the objection by requiring the State to prove that the child victim had adopted the pseudonym used in the indictment.

Sallings v. State, 789 S.W.2d 408 at 412 (Tex.App.--Dallas 1990, pet'n ref'd), makes it clear that a sexual assault victim's true name "was evidentiary and need not have been pleaded." As in Sallings, appellant and his attorney knew the victim's true name prior to trial, and there is no showing that their trial preparation was hindered in any way by use of the pseudonym in the indictment.

Mayfield v. State, 649 S.W.2d 361 at 362 (Tex.App.--Fort Worth 1983, pet'n ref'd), held:

Objections to a variance between the name of the complainant in the indictment and the name as shown at trial must first be raised at trial. Appellant does not point out in his brief, nor can we find in the record where appellant objected to this variance at trial. (Citation omitted)

As in Mayfield, appellant failed to object to the variance between the indictment and the proof as to the complainant's name.

Ramos v. State, 688 S.W.2d 135 at 136 (Tex.App.--Corpus Christi 1985, no pet'n), states:

The object of the doctrine of variance is to avoid surprise, and for...