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 In the Matter of C.L.D., UNPUBLISHED, No. 05-99-00813-CV, 2000 WL 21261, 2000 Tex.App.Lexis ____ (Tex.App.—Dallas 1/14/00)[Texas Juvenile Law 168 (4th Edition 1996)].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.
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.
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries