
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-02-527 CR

____________________


DAVID JOSEPH COLEMAN, Appellant


V.


THE STATE OF TEXAS, Appellee




On Appeal from the 252nd District Court
Jefferson County, Texas

Trial Cause No. 86664




OPINION
 A jury found David Joseph Coleman to be guilty of delivery of a controlled
substance by actual transfer, and assessed punishment at two years of confinement in the
Texas Department of Criminal Justice, State Jail Division, and a $5,000 fine.  Coleman
raises two issues on appeal.  We affirm the judgment for the reasons stated below.
	Issue one contends that a fatal variance exists between the charging instrument
allegation and the proof of the transferee's name at trial.  The indictment alleged the
transferee's name is "Joseph Rideaux."  On voir dire, the witness testified that he spells
his name "Redeau."  Before the jury, he testified that two of his brothers spell their
common surname in the manner that it appears on the indictment, and that name is
pronounced the same as "Redeau." 
	"A variance between the allegation and proof of a name will not impugn the validity
of a judgment of conviction so long as the names sound alike or the attentive ear finds
difficulty distinguishing them when pronounced."  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,
298 (Tex. Crim. App. 1993) (opin. on reh'g).  Coleman argues that this precedent, the
doctrine of idem sonans, cannot be applied in this case because the trial court referred to
Article 21.07 during the charge conference and witness testified that he is not known by
any other name or spelling. (1)  It appears that the trial court mentioned the Code of Criminal
Procedure as a means of referring defense counsel to the line of case authority regarding
variance between the indictment and the proof at trial for spelling names.  Article 21.07
addresses several circumstances, unrelated to spelling variances, where a variance between
pleading and proof is immaterial.  See Blankenship v. State, 785 S.W.2d 158, 159-60
(Tex. Crim. App. 1990).  But the presence of one of the situations permitted by Article
21.07 is not a prerequisite for application the doctrine of idem sonans. (2)  The difference
between the actual spelling of the transferee's name and its spelling in the indictment was
immaterial because the two are capable of the same pronunciation.  
	During the trial, defense counsel informed the trial court that the defense had been
planning for a different witness, and that they did not learn the actual identity of the
transferee until the day before trial.  During cross-examination by the defense, the witness
testified that two other persons share his name but have different dates of birth.  On
appeal, Coleman argues that the spelling of the transferee's name on the indictment
prejudiced his defense.  The cases upon which he relies, Martin v. State, 541 S.W.2d 605
(Tex. Crim. App. 1976), and Plessinger v. State, 536 S.W.2d 380 (Tex. Crim. App.
1976), actually express a legal principle that is independent of the doctrine of idem sonans. 
In Martin, the court held that no variance existed between proof that the complainant's
name is "Dina Jones Sykes" and the indictment's allegation that the complainant's name
is "Dianna Lynch Sykes."  Martin, 541 S.W.2d at 606.  The Court of Criminal Appeals
held that a "material variance" concerning an alleged middle name is "neither material nor
fatal."  Id.  The court then held that the record did not reflect that "Dina" and "Dianna"
are incapable of the same pronunciation, and affirmed the conviction by applying the
doctrine of idem sonans. Id. at 608.  In Plessinger, the indictment alleged that a prior
conviction out of Maricopa County, Arizona, was styled "The State of Texas vs. Delbert
Lorrain Plessinger, Jr."  Plessinger, 536 S.W.2d at 381.  The court ruled that there was
not a fatal variance between pleading and proof because the defendant had not been
surprised or mislead.  Id.  Thus, these cases identify situations in which an obvious
discrepancy between the pleading and the proof at trial will not be a fatal variance that
renders the evidence insufficient to support the conviction.  They do not create an
exception to the long recognized doctrine of idem sonans.  In this case, the State proved
that the defendant transferred cocaine to a person bearing a name that is pronounced the
same way as the name that appears in the appropriate place on the indictment.  Issue one
is overruled.
	Issue two contends the "[t]rial court abused its' discretion when it admitted a partial
viewing of a video tape in violation of the optional completeness rule."  See Tex. R. Evid.
107. (3)
  Coleman claims the trial court "disallowed the Appellant to admit the entire video
recording. . . ."  Having reviewed the record, however, we conclude that the trial court
did not restrict Coleman's inquiry into the subject of videotape recording.  The entire
exhibit offered by the State was admitted into evidence and published before the jury.  One
of the State's witnesses testified on voir dire that the law enforcement personnel were
videotaping at times in addition to those depicted in State's Exhibit No. 1.  When defense
counsel objected to the State's exhibit on the grounds that it was "not a complete tape,"
the trial court informed defense counsel that he could obtain through subpoena any
evidence in the possession of the State.  Coleman did not offer any additional footage as
a defense exhibit.  We also observe that the trial court did not restrict the scope of defense
counsel's examination of the witness on any matter relating to videotaping.  We find no
error in the admission of the State's exhibit.  As no evidence was offered in evidence by
the defense in response to the admission of the State's exhibit, there could be no violation
of Rule 107.  Issue two is overruled.  We affirm the judgment.
	AFFIRMED.


							 ____________________________
								STEVE MCKEITHEN
								       Chief Justice		

Submitted on August 18, 2003
Opinion Delivered August 27, 2003
Publish

Before McKeithen, C.J., Burgess and Gaultney, JJ.
1.   Article 21.07 provides, in part: "When a person is known by two or more names,
it shall be sufficient to state either name."  Tex. Code Crim. Proc. Ann. art. 21.07
(Vernon Supp. 2003).   
2.   For a brief discussion of the distinction between "variance" and other issues in
pleading names in an indictment, see Grant v. State, 970 S.W.2d 22, 23 (Tex. Crim. App.
1998).
3.   Tex. R. Evid. 107 states: "When part of an act, declaration, conversation, writing
or recorded statement is given in evidence by one party, the whole on the same subject
may be inquired into by the other, and any other act, declaration, writing or recorded
statement which is necessary to make it fully understood or to explain the same may also
be given in evidence, as when a letter is read, all letters on the same subject between the
same parties may be given.  'Writing or recorded statement' includes depositions."

