Ortiz, Edgar v. The State of Texas--Appeal from Co Crim Ct at Law No 8 of Harris County

Affirmed and Memorandum Opinion filed May 12, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-05-00370-CR

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EDGAR ORTIZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 8

Harris County, Texas

Trial Court Cause No. 5417

M E M O R A N D U M O P I N I O N

This is an appeal from the order signed March 29, 2005, by Harris County Criminal Court at Law No. 8, affirming the judgment of the Houston Municipal Court No. 12, as modified, to correct the spelling of appellant=s name. See Tex. Gov=t Code Ann. ' 30.00027 (Vernon 2004) (providing for appeal to court of appeals from conviction in municipal court of record). In a single issue, appellant challenged the denial of his motion to quash the criminal complaint against him because there was a variance in the name alleged in the complaint and appellant=s name. We affirm.

Appellant was charged by complaint with failing to stop at a clearly marked stop line while facing a red light. On April 26, 2004, the day the case was set for trial in municipal court, appellant=s counsel orally moved to quash the complaint, stating the name in the complaint alleged an incorrect name.[1] At the hearing on appellant=s motion to quash, appellant=s counsel asserted the complaint was fatally defective because it named AEdgar E. Oritz,@ and appellant=s name is Edgar E. Ortiz. Counsel for the State responded Athat=s a typo.@ The trial judge reviewed appellant=s driver=s license and acknowledged that appellant spells his name AOrtiz.@ The court concluded that there was a Atransposition of letters,@ and the complaint gave sufficient information to identify the defendant. The court denied the motion, and appellant then entered a plea of nolo contendere. The municipal court found appellant guilty and assessed a fine of $150.00.

After his motion for new trial was overruled, appellant appealed to the county court at law. See Tex. Gov=t Code Ann. ' 30.00014 (Vernon 2004) (providing for appeal to county court from conviction in municipal court of record). Appellant=s sole complaint was that the municipal court should have granted his motion to quash the complaint because of the variance in his name. Sitting as an appellate court, the county court affirmed appellant=s conviction, as modified, to correct the spelling of appellant=s name.[2] Appellant now appeals to this court. We review only those issues appellant raised before the reviewing county criminal court at law. See Tex. Gov=t Code. Ann. ' 30.00027(b)(1) (Vernon 2004) (the record and briefs on appeal in the county court at law constitute the record and briefs on appeal to the court of appeals); Preston v. State, 145 S.W.3d 683, 685 (Tex. App.CCorpus Christi 2004, no pet.).

A trial court=s ruling on a motion to dismiss a charging instrument will not be reversed absent an abuse of discretion. State v. Perez, 906 S.W.2d 558, 559 (Tex. App.CSan Antonio 1995), aff=d, 947 S.W.2d 268 (Tex. Crim. App. 1997). A trial court abuses its discretion if it acts without reference to guiding principles or rules. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993).

A complaint is sufficient if it substantially complies with statute=s requirement to state the accused=s name. See Tex. Code Crim. Proc. Ann. art. 45.019 (Vernon 1977) (emphasis supplied). The same particularity that is required for an indictment or information is not required for a complaint used as a misdemeanor charging instrument. Kindley v. State, 879 S.W.2d 261, 263 (Tex. App.CHouston [14th Dist.] 1994, no pet.). In addition, a complaint may be amended to cure a variance on matters of form. Peterson v. State, 732 S.W.2d 22, 24 (Tex. App.CSan Antonio 1987, no pet.).

The Texas Code of Criminal Procedure provides that a judgment shall not be affected Aby reason of any defect of form which does not prejudice the substantial rights of the defendant.@ Tex. Code Crim. Proc. Ann. art. 21.19 (Vernon 1989). A defect in a charging instrument will not require reversal unless it restricted appellant=s opportunity to defend against the prosecution. See Adams v. State, 707 S.W.2d 900, 902 (Tex. Crim. App. 1986). A typographical error does not render an indictment fundamentally defective. Smith v. State, 712 S.W.2d 270, 271 (Tex. App.CBeaumont 1986, pet. ref=d).

In this case, appellant failed to assert he was prejudiced or misled by the typographical error in the spelling of his last name in the complaint.[3] He argued only that the rule of idem sonans does not apply to the spelling mistake in this case. Under the rule of idem sonans, a variance between the name alleged in the indictment and that proved at trial is immaterial if the names sound the same or if it is difficult to distinguish between the two names when they are pronounced out loud. Martin v. State, 541 S.W.2d 605, 608 (Tex. Crim. App. 1976). The applicability of iden sonens is a question for the trier of fact and its determination will not be disturbed on the Acold@appellate record absent a showing the names could never sound alike. Id. Reversal will be warranted only if the evidence shows that the names are patently incapable of being sounded the same or that the accused was misled to his prejudice. Flanagan v. State, 620 S.W.2d 591, 594 (Tex. Crim. App. 1981). On this record, there has been no showing of prejudice or that the trial court abused its discretion in denying appellant=s motion to quash.

Appellant=s authorities are not on point. His reliance on Cook v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995) is misplaced. There, a felony indictment was so deficient that it did not invest the trial court with jurisdiction because it completely failed to charge Aa person.@ Id. at 480. In addition, appellant=s citation to Dingler v. State, 705 S.W.2d 144 (Tex. Crim. App. 1984) does not aid his position. See id at 145-46 (upholding court of appeals= finding that idem sonans applied to cure misspelled name but reversing on insufficient evidence).

In conclusion, we hold the trial court did not abuse its discretion is failing to quash the criminal complaint in this case and overrule appellant=s sole appellate issue. Accordingly, we affirm the order of the county court upholding the conviction of the municipal court.

PER CURIAM

Judgment rendered and Memorandum Opinion filed May 12, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] In municipal court, a complaint serves as the sole charging instrument. Tex. Code Crim. Proc. Ann. art. 45.018 (Vernon Supp. 2004-05). In addition, a defendant=s pleadings may be oral or in writing. Tex. Code Crim. Proc. Ann. art. 45.021 (Vernon Supp. 2004-05); Huynh v. State, 901 S.W.2d 480, 482 (Tex. Crim. App. 1995).

[2] On appeal to the county criminal court at law, review was limited to the basis of the errors as set forth in the record from the proceedings in the municipal court. An appeal from a municipal court of record may not be by trial de novo. Tex. Code Crim. Proc. Ann. art. 45.042(b) (Vernon Supp.2004); Tex. Gov=t Code. Ann. ' 30.00014(b) (Vernon 2004).

[3] We consider appellant=s appeal on the briefs and record from the appeal to the County Criminal Court at Law No. 8, acting as an appellate court. See Tex. Gov=t Code Ann. ' 30.00027(b)(1) (Vernon 2004).