630 SW2D 920 - Malone v. State

¶1OPINION

ONION, Presiding Judge.

¶2This is an appeal from an order revoking probation. On June 11, 1980, appellant entered a guilty plea before the court to the offense of felony theft. Punishment was assessed at six (6) years’ imprisonment and a fine of $500.00. Imposition of the sentence was suspended and the appellant was placed on probation subject to certain conditions including “(a) Commit no offense against the laws of this or any other State or the United States.”

¶3On November 25, 1980, the State filed its first amended motion to revoke probation alleging that on or about October 16, 1980, the appellant committed the offense of theft of services, “namely, transportation in a taxi, owned by Powell Battle ... of the value of over $20.00 (twenty) dollars and under $200.00 (two hundred) dollars without the effective consent of the complainant ...” The motion also alleged that on the same date appellant was in possession of a controlled substance.

¶4On December 18,1980, the court conducted a hearing on said motion at the conclusion of which the court revoked probation on the basis of the commission of the offense of theft of services alone. The court found the other allegation not to be true. Sentence was imposed eliminating the five hundred dollar fine originally imposed. Notice of appeal was given.

¶5On appeal appellant raises two grounds of error. He contends there was a fatal variance between the allegations in the revocation motion and the proof adduced. He contends the revocation motion alleges the complaining witness was Powell Battle when the proof shows the person was Paul Battell.

¶6Paul Battell testified he was a taxi driver and was the victim of theft of services by the appellant on October 16, 1980. The first question on cross-examination was an inquiry as to how the witness spelled his *921name. He replied, “B-a-t-t-e-1-1.” During the revocation proceedings no question was raised as to the variance.

¶7Reversal of conviction because of variance between allegation and proof of complainant’s name is required if the names are patently incapable of being sounded the same. Escobar v. State, 578 S.W.2d 139 (Tex.Cr.App.1979).1 In Newson v. State, 142 Tex.Cr.R. 47, 151 S.W.2d 225 (1941), a burglary case, the indictment alleged the owner of the house as being “A. F. Houston” and the proof showed the owner’s name was “J. F. Houston.” It was held that there was a fatal variance. See also Garlington v. State, 141 Tex.Cr.R. 595, 150 S.W.2d 253 (1941); Marshall v. State, 157 Tex.Cr.R. 340, 248 S.W.2d 931 (1952);2Jackson v. State, 419 S.W.2d 370, 371 (Tex.Cr.App.1967).

¶8Powell Battle and Paul Battell are names which are patently incapable of being sounded the same. The names are not idem sonans.

¶9Finding an abuse of discretion, the judgment is reversed and the cause remanded.

¶10W. C. DAVIS, J., dissents.

¶11Before the court en banc.

¶12. In Escobarthe indictment alleged the complainant’s name was Da n Wiederhold and proof showed his name to be Donald Ray Wiederhold. A fatal variance was shown.

¶13. In Marshall, a negligent homicide indictment alleged the deceased’s name was Cecile Hunt. Proof showed the victim’s name was in fact Lucille Hunt and a fatal variance was shown.