RACHEL LEE BROWN,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01245-CR
 
RACHEL LEE BROWN,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES HOWELL, ROWE AND BURNETT
OPINION BY JUSTICE HOWELL
JUNE 21, 1989
        Rachel Lee Brown was convicted in a bench trial of the offense of possession of a controlled substance. Punishment was assessed at five years confinement and a $500 fine, probated for five years. On appeal, appellant claims that the trial court erred in denying her motion for directed verdict alleging a fatal variance between the indictment and the proof at trial. We overrule her point of error and affirm the judgment of the trial court.
        The record reflects that appellant was charged in the indictment with possession of phencylidine. However, the evidence introduced at trial showed that she possessed phencyclidine. Appellant now argues that the variance between the indictment and the evidence introduced at trial renders the evidence insufficient to support her conviction.
        All essential elements in an indictment must be proved as alleged. Roberts v. State, 513 S.W.2d 870, 871 (Tex. Crim. App. 1974). If a variance exists between the allegations and the proof, it may render the evidence insufficient to support the conviction. Franklin v. State, 659 S.W.2d 831, 833 (Tex. Crim. App. 1983). However, a mere or slight variance between what was alleged and what was proven will not render the evidence insufficient to support the conviction. Human v. State, 749 S.W.2d 832, 836 (Tex. Crim. App. 1988). It is only if the variance is material, i.e. such that a defendant is misled to his prejudice, that the variance will be considered fatal. Plessinger v. State, 536 S.W.2d 380, 381 (Tex. Crim. App. 1976). Cf. Ablon v. State, 537 S.W.2d 267, 269 (Tex. Crim. App. 1976)(indictment alleging possession of "diazedam" rather than "diazepam" held to allege an offense).
        In the present cause, appellant argued at trial that she did not knowingly possess the controlled substance. At no point did she give any indication that she was misled to her detriment by the slight variance in spelling between the indictment and proof. We conclude that the evidence was sufficient to support appellant's conviction. As a result, the trial court did not err in overruling appellant's motion for directed verdict. Appellant's point of error is overruled.
        The judgment of the trial court is affirmed.
                                                  
                                                  CHARLES BEN HOWELL
                                                  JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01245.F
 
 
File Date[01-02-89]
File Name[881245]