By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
No variance between pleading and proof of
complainant’s name (00-1-16)
On January 14, 2000, the Dallas Court of Appeals held that under the rule of
idem sonans there was no fatal variance between the complainant’s name as
alleged in the petition and as proved at the adjudication hearing.
00-1-16. In the Matter of C.L.D., UNPUBLISHED, No. 05-99-00813-CV, 2000 WL
21261, 2000 Tex.App.Lexis ____ (Tex.App.—Dallas 1/14/00)[Texas Juvenile Law
168 (4th Edition 1996)].
Facts: Appellant appeals an order adjudicating him a child engaged in delinquent
conduct and placing him in the custody of the Dallas County Juvenile Department.
In three issues, appellant asserts (1) he was denied due process because he was
tried without a jury and he never personally waived his right to a jury trial,
and (2) the evidence is legally insufficient to support the adjudication.
The State filed a petition alleging appellant was a child engaged in delinquent
conduct. Specifically, the petition alleged appellant engaged in delinquent
conduct by stealing a motor vehicle owned by Dekent Phillips and by burglarizing
three other vehicles owned by Valonder Quaite, Kimberly Abron, and Kimberly
White respectively. After an adjudication hearing, the trial court adjudged
appellant a child engaged in delinquent conduct for committing all four
offenses. The trial court subsequently held a disposition hearing, after which
it placed appellant on probation until his 18th birthday in the custody of the
Dallas County Juvenile Department for placement in a drug treatment center. This
appeal followed.
Held: Affirmed.
Opinion Text: In the first issue presented, appellant contends he was deprived
due process. Specifically, appellant complains he was tried without a jury, but
the record does not show he personally waived his right to a jury trial. Since
appellant filed his brief, the record has been supplemented with appellant's
written waiver of a jury trial demonstrating appellant personally and in writing
waived his right to a jury trial. The waiver is also signed by appellant's
guardian, his attorney and the trial court. The record adequately reflects
appellant waived his right to a jury trial. See Tex.Fam.Code Ann. § 51.09
(Vernon Supp.2000). We resolve appellant's first issue against him.
In the second issue presented, appellant asserts the evidence is legally
insufficient to support his adjudication because there is no evidence he
burglarized Kimberly Abron's vehicle. Under this issue, appellant complains of
an alleged variance between the allegations in the petition and the proof at
trial. The petition alleged appellant burglarized Kimberly Abron's vehicle. At
the
adjudication hearing, however, the court reporter transcribed the complainant's
name as Kimberly Abram. [FN1] On appeal, appellant complains of a fatal
variance.
Because appellant's complaint concerns the legal sufficiency of the evidence to
support his adjudication, we apply criminal case law. See C.D.F. v. State, 852
S.W.2d 281, 284 (Tex.App.--Dallas 1993, no writ). Under the rule of "idem
sonans", absolute accuracy in spelling a name is not required. See Farris
v. State, 819 S.W.2d 490, 496 (Tex.Crim.App.1990), overruled on other grounds by
Riley v. State, 889 S.W.2d 290 (Tex.Crim.App.1994). A variance between the
allegation and proof of a name is not fatal provided the names sound alike or
the attentive ear finds difficulty distinguishing them when pronounced. See id.
If a question arises as to whether two spellings are "idem sonans," it
is an issue of fact for the factfinder. See id. Unless two spellings are
"patently incapable" of being sounded alike, a failure to complain of
the alleged variance will defeat any claim of variance on appeal. See id.
In this case, appellant did not object to the alleged variance in the trial
court. We further conclude the names Abron and Abram are not patently incapable
of being sounded alike. Consequently, we resolve the second issue against
appellant.
In the third issue presented, appellant asserts the evidence is legally
insufficient to support his adjudication because there is no evidence he
appropriated Dekent Phillips's motor vehicle while in Dallas County. Contrary to
appellant's suggestion, the location in which an offense occurs is not an
element of the offense. See Braddy v. State, 908 S.W.2d 465, 467 (Tex.App.--
Dallas
1995, no pet.). We will presume appellant is complaining that the State failed
to prove venue. See Act of May 25, 1973, 63d Leg., R.S., ch. 544, § 1, 1973
Tex.Gen. Laws 1460, 1463 (amended 1999) (current version at Tex.Fam.Code Ann. §
51.06 (Vernon Supp.2000)).
Under the family code, venue is proper in: (1) the county where the child
resides, or (2) the county in which the alleged delinquent conduct occurred. See
id. However, rule 86(1) of the rules of civil procedure provides that an
objection to improper venue is waived if not made by written motion and filed
prior to or concurrently with any other plea, pleading, or motion except a
special appearance. See Tex.R.Civ.P. 86(1). Under section 51.17(a) of the family
code, the rules of civil procedure apply to juvenile cases except for the
State's burden of proof or where the rules conflict with the family code. See
Tex.Fam.Code Ann. § 51.17(a) (Vernon 1996). [FN2]
At trial, appellant did not file a timely motion to transfer venue. Under the
rules of civil procedure, appellant waived any error in alleged improper venue.
See Tex.R.Civ.P. 86(1). Furthermore, even if we were to apply the rules
applicable to criminal cases, our result would be the same. In criminal cases,
we presume venue was proven unless the record affirmatively shows otherwise or
venue is made an issue in the trial court. See Tex.R.App.P. 44.2(c)(1); Braddy,
908 S.W.2d at 467. In this case, appellant did not make venue an issue in the
trial court. Nor does the record affirmatively establish venue was not proven.
Thus, applying the rules applicable to criminal cases, we presume venue was
properly proven.
Finally, the record shows appellant lived in Duncanville, Texas. The trial court
could have taken judicial notice that Duncanville is in Dallas County. See
Braddy, 908 S.W.2d at 467. Consequently, there is sufficient evidence that venue
was proper in Dallas County. See id. We resolve appellant's third issue against
him.
FN1. Notably, the complainant never spelled her name for the court reporter.
Thus, the court reporter may have simply misspelled the complainant's name. See
Adams v. State, 813 S.W.2d 698, 699 (Tex.App.-- Houston [1st Dist.] 1991, pet.
ref'd).
FN2. We will not apply the rules of civil procedure to the extent they will
operate to deprive a juvenile of his constitutional rights. See e.g., L.G.R., v.
State, 724 S.W.2d 775, 776 (Tex.1987). In this case, appellant has not attempted
to establish his constitutional rights are violated by application of the rules
of civil procedure.