Cox v. State , 1980 Tex. Crim. App. LEXIS 1363 ( 1980 )

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for burglary of a building. After the jury found appellant guilty, the court assessed punishment at eight years.

In his second ground of error, appellant challenges the sufficiency of the evidence. He maintains that there is a fatal variance between the allegation and the proof of the complainant’s name.

The indictment in the instant case alleges that the complainant’s name was Emma Dunn. At trial, the complainant testified that her name was Erma Dunn, not Emma Dunn. She further stated that other than her legal name of Erma Black Dunn, the only other name she had ever been known by was Jackie.

After the State rested, appellant called the court’s attention to the matter of this variance by way of his motion for an instructed verdict. Although the jury was instructed to resolve the issue, there was no evidence that “Erma” and “Emma” may be pronounced the same, and no evidence to support the jury charge.

The State argues that there is not a material variance because “given the dialect common in east Texas,” the names Erma and Emma are idem sonans. The record reflects that no evidence as to this “east Texas dialect” was offered at the time of trial.

In Martin v. State, Tex.Cr.App., 541 S.W.2d 605, the Court stated:

“... ‘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.’ ”

The Court in Martin went on to state that this Court will refrain from disturbing on appeal a jury determination that the names in question were idem sonans. However, reversal will be required if the evidence shows that the names are patently incapable of being sounded the same. Escobar v. State, Tex.Cr.App., 578 S.W.2d 139.

In Grant v. State, Tex.Cr.App., 568 S.W.2d 353, it was found that the names “Mary” and “Marion” are patently incapable of being sounded the same. It was further noted that the misspelling effectively transforms the name “Mary” into a wholly distinct appellation, i. e. Marion. Likewise in Escobar v. State, supra, we found that the names “Dan” and “Donald” are patently incapable of being sounded the same after the complainant testified that he had never been known by the name alleged in the indictment.

In the instant case, there was no evidence that the complainant had ever been known by the name Emma. As in Escobar, we find that the complainant’s testimony as to the various names she had been known by, constitutes evidence that the names Erma and Emma are patently incapable of being sounded the same. Lastly, we note that the misspelling of the name Erma effectively transforms the name into a wholly distinct appellation, i. e. Emma. For these reasons, we conclude that the names are not idem sonans and thus the evidence is insufficient to support the conviction.

The judgment is reversed and reformed to show an acquittal.

Before the court en banc.