Elvesta Lamar v. The State of Texas--Appeal from 272nd District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-92-244-CR

ELVESTA LAMAR,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court # 20,866-272

O P I N I O N

A jury convicted Elvesta Lamar of aggravated assault, assessed punishment at four years, and found that she used a deadly weapon to commit the offense. In a single point of error Lamar contends that the evidence was insufficient to support the verdict. We affirm.

In the indictment, the name of the complainant is spelled "Georgie Alcorn." However, in direct examination of Ms. Alcorn, she stated that her name is Georgia Alcorn. On cross examination she testified that she spelled her name G-E-O-R-G-I-A, and that she had never been know as "Georgie." On re-direct examination Ms. Alcorn stated that, although she did not go by the name Georgie, she had heard people in her neighborhood call her Georgie. She also testified that in the dialect of her predominantly black neighborhood Georgia and Georgie are capable of being pronounced the same way. On re-cross examination, she pronounced the name Georgia and Georgie for the defense attorney within the hearing of the judge and jury.

Lamar contends that there is a fatal variance between the allegation in the indictment and the proof at trial. She claims that Georgia and Georgie are patently incapable of being sounded the same and are, therefore, not idem sonans.

Pronunciation rather than spelling is the key to resolving the issue of idem sonans. Farris v. State, 819 S.W.2d 490, 496 (Tex. Crim. App. 1990). A variance between the allegation and proof of a name will not impugn the validity of a conviction so long as the names sound alike or the attentive ear finds difficulty distinguishing them when pronounced. Id. Inasmuch as appellate courts are limited to reading a "cold" record, they are rarely in a position to make a truly informed determination of whether two names could be or were pronounced to sound the same. Martin v. State, 541 S.W.2d 605, 607 (Tex. Crim. App. 1976). Therefore, because the jury or trial judge hears the pronunciation of the names in question by the parties involved, they are in a better position to determine whether or not the names are or can be sounded the same. Id. Thus, once a jury or trial court has determined that names are the same, we will only disturb that finding if the evidence shows that the names are patently incapable of being sounded the same or that the accused was misled to his prejudice. See id. at 607-08.

There is evidence that Georgie and Georgia were capable of being sounded alike. Although Ms. Alcorn never spelled her name Georgie and had not been known as Georgie, she testified that Georgia and Georgie were capable of being pronounced the same in her dialect. Also, Ms. Alcorn testified that she had heard people call her Georgie, supporting her testimony that the spelling of her name, Georgia, could be sounded as Georgie. She pronounced both names for the court and the jury. Furthermore, Lamar made no claim that she was misled to her prejudice because of the name spelling.

We cannot say from this record that both names are patently incapable of being pronounced the same or that Lamar was misled to her prejudice. Accordingly, we defer to the trial court's ruling. We overrule her point and affirm the judgment.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed March 10, 1993

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