Elvesta Lamar v. State

Lamar v. Texas 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 Do not publish  pt;mso-no-proof:yes'>DISSENTING Opinion   We have dealt with the procedural posture of this appeal before. Martinez v. State, No. 10-03-00128-CR, 2004 Tex. App. LEXIS 2687 (Tex. App.—Waco Mar. 24, 2004, order), reconsideration granted by, opinion withdrawn by, Martinez v. State, 2004 Tex. App. LEXIS 4469 (Tex. App. Waco, Apr. 22, 2004, order).  Now we turn our attention to the merits. But should we?          This is yet another case in which I would like to know under what circumstances we are going to use one line of precedent or the other. I have called this problem to the Court’s attention before but the majority refused to address it. See Warrick v. State, 143 S.W.3d 350, 351-353 (Tex. App.—Waco 2004, no pet) (Gray, C.J., dissenting). I believe we have the obligation to clarify our own authority in this regard.          Upon examination of the record in this case, it reveals something that our previous analysis had not. This is a plea bargain case. “Appellant pleaded guilty to the … indictment …. The only agreement as to punishment was that Appellant would not be sentenced to more than fifteen years.” (Appellant’s brief at pg 7). A plea in return for a cap on punishment is a plea bargain case. Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003).          The trial court’s certification erroneously states “That the defendant’s appeal is not in a plea-bargain case, and the defendant has the right of appeal as to punishment phase only.” The issues raised by Martinez are not punishment phase issues. The issues address guilt for the offense charged and the reason for making the plea. These issues are raised by Martinez in his response to the Anders brief filed by his counsel.          So in this case we have a certification of a right to appeal that is not supported by an examination of the record. Should we proceed to examine the merits of the appeal or should we abate the case for preparation of a certification that properly reflects the events that occurred at trial? This Court has done both and I have been unable to discern when we apply which line of authority.          In Harris v. State, we held that if the certification does not reflect the events as they occurred at trial, we should abate the appeal for the filing of a corrected certification. Harris v. State, 137 S.W.3d 829, 831 (Tex. App.—Waco 2004, order). This holding in Harris overruled our own authority to the contrary and thus rejected the same holding from at least four other courts of appeals. See Walker v. State, 110 S.W.3d 509, 510 (Tex. App.—Waco 2003, no pet.); see also Stowe v. State, 124 S.W.3d 228, 232-33 (Tex. App.—El Paso 2003, op. on mot.) (citing Aguilar v. State, No. 14-03-00346-CR, 2003 Tex. App. LEXIS 3507 (Tex. App.—Houston [14th Dist.] Apr. 24, 2003, no pet.) (mem. op.)); Hynson v. State, No. 05-03-00085-CR, 2003 Tex. App. LEXIS 3753 (Tex. App.—Dallas May 1, 2003, no pet.) (not designated for publication) (mem. op.); Harris v. State, No. 01-03-00114-CR, 2003 Tex. App. LEXIS 3146 (Tex. App.—Houston [1st Dist.] Apr. 10, 2003, no pet.) (not designated for publication) (mem. op.); Smith v. State, No. 11-03-00067-CR, 2003 Tex. App. LEXIS 2432 (Tex. App.—Eastland Mar. 20, 2003, no pet.) (not designated for publication).          But in Warrick, we started a different line of authority. Warrick v. State, 143 S.W.3d 350 (Tex. App.—Waco 2004, no pet). The Court in Warrick refused to follow Harris and have the certification corrected when it stated the defendant has the right to appeal because it was not a plea bargain case but the record clearly established that it was a plea bargain case.          Now it could be that Harris only applies if the certification indicates no right to appeal when the record indicates there is a right to appeal. Or it could be that Harris applies to all situations, unless an Anders brief is filed. But how do I know? How do you know? The Court has refused to reconcile its holdings, so I can provide no additional guidance other than to point out the problem.          If there is any question where I stand, it is that we made the wrong turn when we rejected our own precedent and the reasoning of other courts of appeals in deciding Harris. I would resolve this conflict by holding that Harris was improperly decided and that we will take the certification at face value and leave it to the litigants to use the other available means to correct the certification if it is wrong.          And as a final observation, there is a real question of whether we should even address the issues raised by Martinez in his response. Neither issue actually is addressed to the result of the punishment phase, and the certification expressly states a right to appeal as to the punishment phase only.          Unless and until the certification is otherwise properly corrected, I would take it at face value and address only those issues that relate to punishment. As there are no issues that relate to punishment, I would, therefore, dismiss the appeal. Because the Court addresses issues beyond the scope of the right to appeal in the certification, I respectfully dissent.                                                                    TOM GRAY                                                                   Chief Justice  Dissenting opinion delivered and filed December 8, 2004 Publish Â