Jones v. State

Appellant never complained that the victims' last names were spelled incorrectly in the indictment and has not shown that the names are incapable of sounding alike, and therefore he waived any error associated with the misspelling.

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Click here for the full text of this decision FACTS:The appellant Steven Jones was convicted by a jury of two counts of indecency with a child by contact and sentenced to 99 years’ imprisonment, enhanced by a 1987 conviction for aggravated sexual assault. HOLDING:Affirmed. The appellant contends that the evidence is insufficient because the indictment alleged that the victims’ last name was “Guana,” but the evidence showed their name is “Gianna.” He argues that the two names are “incapable of being pronounced” alike. “Idem sonans” refers to names that, despite having different spellings, sound sufficiently alike that a listener would have difficulty distinguishing them. A variance between the spelling of a victim’s name in an indictment and the proper spelling as proved at trial does not require reversal if the names sound alike, and whether two names are idem sonans is a question left to the fact-finder. Unless the two names are “patently incapable of being sounded alike,” a defendant’s failure to ask that the fact-finder resolve the issue waives the complaint on appeal. The appellant never complained that the victims’ last names were spelled incorrectly in the indictment and has not shown that the names are incapable of sounding alike, and therefore he waived any error associated with the misspelling, the court holds. In 2001, the court of criminal appeals reaffirmed the fatal variance doctrine, which provides that “when faced with a sufficiency of the evidence claim based upon a variance between the indictment and the proof, only a ‘material’ variance will render the evidence insufficient.” Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001). A variance between indictment and evidence is fatal only if it is material and prejudices the defendant’s substantial rights. That determination is made by considering 1. whether the charging instrument sufficiently informed the defendant of the charge so that he was able to prepare an adequate defense; and 2. whether prosecution under the deficient charging instrument might subject the defendant to the risk of a later prosecution for the same crime. The appellant did not complain about the misspelling, seek to quash the indictment or argue that he was surprised by the state’s proof at trial. The misspelling was never noted in any way, and the record shows that appellant knew the identity of the alleged victims from the beginning of the investigation, which started about three months before the indictment was prepared. Further, because appellant may avail himself of the entire record and not merely the charging instrument, there is no risk that he could be charged again later for the same offense. The court rejects the appellant’s other assertions of error. OPINION:Puryear, J.; Law, CJ, Patterson and Puryear, JJ.

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