NO. 07-02-0287-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A MAY 17, 2004

______________________________ REYNALDO RUIZ SANCHEZ, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 9 TH DIST RICT COURT OF MONTGO MERY COUNTY; NO. 00-09-05637- CR; HONOR ABLE FRED ED WARDS, JUDGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORA NDUM OPIN ION
Ajury convicted appel lant Reynal do Ruiz San chez of indecenc y wi th a c hild. The jury sentenced appellant to tw enty year

s confinement in theTexas Depar tment of Criminal Justice, Institutional Divis ion, and assess ed a fine of $3000. We will affirm the judgment.1 Both the origi nal indictment and the amended indic tment approved by the tri al court included the su rname o f the v icti m. W e substitute an initial for the victim’s surname in this opinion.

2 Under the rule of idem so nans a variance between the na me alleged in the indictment

and that proved at trial i s immaterial if the names sound the s am e or if it is difficult to disting uish between the two names when they are pronounced ou t loud. Martin v. State , 541 S.W .2d 605, 608 (Tex.Crim.App . 1976). -2- In a single point of error

appellant contend s there was a fatal vari ance between w hat was proven at trial and what w as alleged a s the offense in the ind ictment. The variance in volved the name of the vi ctim. The indic tment, filed September 12, 2000, alleg ed tha t appellant

committed the of fense of indecency w ith a child against Gabr iel S. On April 25, 2001, the State filed a mot ion seeking leave toamend the indictment to correct the spelling of the victim ’s first name t o Gabriela S. 1 The trial cour t signed an or

der on May

9, 2001, amendin g the indict ment. The case was tried in June 2002. Proof at tr ial was that the victim was Gabr iela, a female chi ld. The charge, to which nei ther side obj ected, requi red the jury to find that appella nt committed the offense ag ainst Gabriel a S. Appellant’s point of error relies only on t he original indictment as a basis for his contention that the proof fatally varied from the offense charged i n the indictment. Nowhere in his brief does appell ant mention the amended indictment. Appellant frames the issue as onegoverne d by the rule of idem sonans. 2 In response, the State relies only
on the amended indict ment. The State’s brief makes no m enti on of idem sonans , and contains no dis cussion of the law regarding variance s.
We begin w ith appellant’ s contention that the male name Gabri el contained i n the indictment

cannot be pronounced so as to be mis taken for the female name Gabri ela, and3 Case law indi cates that unles s the names in q uestion are paten tly inca pable of

being sounded alike, when a ques tion of idem son ansarises at trial a defendant must request the jury

be instructe d to determine w hether the names are or can be prono unced the same or are u sually pr onounced in such away t hat the names are i ndistingui shable. See Martin v. State , 541 S.W .2d 605, 608 (Tex.Crim.App . 1976). This is a fact for the jury to decide under pr

oper instruc

tion of the court. Jackson v. St ate , 419 S.W.2d 370, 371 (Tex.Cri m.App. 1967); Rodriguez v. State , 363 S.W.2d 472, 473-74 (Tex.Crim.App. 19 62). Under such circumstances, failing to request s ubmission of the is sue for jury consideration is said to prec lude a claim of a v ariance on appeal

. Farris v. State , 819 S.W.2d 490, 496 (Tex.Cri m.App

. 1990), overruled on o ther grounds, R iley v. Stat

e , 889 S.W.2d 290 (Tex.Cri m.App. 1994). In this case, like in Martin , 541 S.W.2d at 608, appellant br ought his claim of var iance to the tr ial court’ s attention by a motion for directed verdict, but did not t hen reque st su bmis sion of t he is sue t o the jury. -3- thatthere was thus a fatal varia nce between the indictment and proof, rendering the evidence of appellant’s g uilt of the charged offense ins ufficient. Appellant relies primarily
on Gilbert v. State , 904 S.W .2d 210 (Tex.App.–Be aumont 1995, no pet.), in which the court found the names Robert and Rona ld are patently i ncapable of being sounded alike and are wholly distinct names . We do not find a ppel lant’s content ion persuasiv e. Although t he spelling of Gabriel g enerally would indi cate a male name and Gab riela a female name, Farris v. State , 819 S.W.2d 490 (Tex.Crim.App. 1990), overruled on other grounds, Riley v. State , 889 S.W.2d 290 (Tex.Crim.App. 1994), al so cited by appellant, recognizes that pronunciation rather tha n spellin g i s the key to resolution of an idem sonans issue. 819 S.W.2d at 496. On this record, we do not find the two names to be patentl y incapabl e of being sounded alike. See Martin v. State , 541 S.W.2d 605, 608 (Tex.Crim.Ap p. 1976) (di scus sin g ap pli cati on of rul e of idem sonans ). 34 Like the s tatute under w hich the defendant was charged i n Fuller , 73 S.W.3d a t 253, the Penal Code s ection defining the offense of indecency with a c hild does not

make the name of the child a su bstantive el ement of the offense. Tex. Pen. C ode Ann. § 21.11 (Vernon 2003).

5 Appellant

does not contend that th e variance in spelli ng the victim’ s name rendered the evidence i nsufficient as a matter of federal constitut ional law

. See Fuller , 73 S.W.3d at252-53 (citing Jackson v. Virginia , 443 U.S. 3 07, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). -4- More importantly, though, consideration of the effect on the sufficiency of evidence of a variance such as that alleg ed to exist here must involve an inquiry into the materi ality of the vari ance. Fuller v. State , 73 S.W.3d 250, 252-53 (Tex.Crim.App. 2002); Gollihar v. State , 46 S.W .3d 243, 248 (Tex.Crim.App . 2001). 4 Tha t inqui ry consi ders whethe r the varianc e d eprived thedefendant of notice of the char ges and w hether it subj ected the defendantto the risk

of later prosec ution for the same offense. Fuller , 73 S.W.3d at 253; Gollihar , 4 6 S.W .3d at 257. Appellant do es not contend that th e spelling of the victim’s
name as Gab riel in theindic tment s urpri sed hi m or fai led to prov ide hi m no tice of the charge again st whic h he wa s requ ired to defend. Indeed , it woul d be difficult for hi m to sustain such a contenti on on this record. It is clear , for example, from the f irst sentence of his trial counsel’s opening statement to the jurythat appell ant understood the identity of the complainant. Nor does a risk of double jeopardy appear here, par

ticularly given t he State’s motion to amend the in dictme nt. The vari ance i n the s pelli ng of th e vic tim’sname in this case was not material, an d may be disregarded in an evaluation of the suf ficiency of the evidence. 5 Appellant’spoint of error is over ruled.-5-

With regard to the State’s contention th ere was no variance because the indi ctment
was amended, we note that amendment of the indic tment was no t acc omplished by interlineati on of the original. The State cites Riney v. Stat e , 28 S .W .3d 5 61 (T ex. Crim.App. 2000) for the p roposition th at an indictment may be amended by means other than interlineati on of the origi nal, and notes that the trial court granted the May 2001 motion to amend. Riney als o makes c lear , how eve r, t he co ntin uing val idi ty of t he proposition t hat neither a motion to amend nor the granti ng of such a motion constitutes t he amendment itself but merely form the authoriz ation for it. 28S.W.3d at 565. See also Serna v. State , 69 S.W.3d 377 (Tex.App.–El Paso 2002, no pet.); Valenti v. State , 49 S.W.3d 594 (Tex.App.–Fort W orth 2001, no pet.). Our disposi tion of appellant’ s point of error makes itunnecessary

that we determine whether the procedure e mployed by the St a te in this
case effectively resulted in ame ndm ent o f th e ind ictm ent, and we express no opinion on that question here. Having overrul ed appellant’s point of error, w e affirm the judgment of the trial court.

James T. Campbell Justice Do not publish

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