                                  NO. 07-02-0287-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                      MAY 17, 2004

                         ______________________________


                      REYNALDO RUIZ SANCHEZ, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

          FROM THE 9TH DISTRICT COURT OF MONTGOMERY COUNTY;

           NO. 00-09-05637-CR; HONORABLE FRED EDWARDS, JUDGE

                         _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION


      A jury convicted appellant Reynaldo Ruiz Sanchez of indecency with a child. The

jury sentenced appellant to twenty years confinement in the Texas Department of Criminal

Justice, Institutional Division, and assessed a fine of $3000. We will affirm the judgment.
       In a single point of error appellant contends there was a fatal variance between what

was proven at trial and what was alleged as the offense in the indictment. The variance

involved the name of the victim. The indictment, filed September 12, 2000, alleged that

appellant committed the offense of indecency with a child against Gabriel S. On April 25,

2001, the State filed a motion seeking leave to amend the indictment to correct the spelling

of the victim’s first name to Gabriela S.1 The trial court signed an order on May 9, 2001,

amending the indictment. The case was tried in June 2002. Proof at trial was that the

victim was Gabriela, a female child. The charge, to which neither side objected, required

the jury to find that appellant committed the offense against Gabriela S.


       Appellant’s point of error relies only on the original indictment as a basis for his

contention that the proof fatally varied from the offense charged in the indictment.

Nowhere in his brief does appellant mention the amended indictment. Appellant frames

the issue as one governed by the rule of idem sonans.2 In response, the State relies only

on the amended indictment. The State’s brief makes no mention of idem sonans, and

contains no discussion of the law regarding variances.


       We begin with appellant’s contention that the male name Gabriel contained in the

indictment cannot be pronounced so as to be mistaken for the female name Gabriela, and


       1
       Both the original indictment and the amended indictment approved by the trial court
included the surname of the victim. We substitute an initial for the victim’s surname in this
opinion.
       2
          Under the rule of idem sonans a variance between the name alleged in the
indictment and that proved at trial is immaterial if the names sound the same or if it is
difficult to distinguish between the two names when they are pronounced out loud. Martin
v. State, 541 S.W.2d 605, 608 (Tex.Crim.App. 1976).

                                             -2-
that there was thus a fatal variance between the indictment and proof, rendering the

evidence of appellant’s guilt of the charged offense insufficient. Appellant relies primarily

on Gilbert v. State, 904 S.W.2d 210 (Tex.App.–Beaumont 1995, no pet.), in which the court

found the names Robert and Ronald are patently incapable of being sounded alike and are

wholly distinct names. We do not find appellant’s contention persuasive. Although the

spelling of Gabriel generally would indicate a male name and Gabriela 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), also cited by appellant, recognizes that

pronunciation rather than spelling is 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 patently incapable of

being sounded alike. See Martin v. State, 541 S.W.2d 605, 608 (Tex.Crim.App. 1976)

(discussing application of rule of idem sonans).3




       3
         Case law indicates that unless the names in question are patently incapable of
being sounded alike, when a question of idem sonans arises at trial a defendant must
request the jury be instructed to determine whether the names are or can be pronounced
the same or are usually pronounced in such a way that the names are indistinguishable.
See Martin v. State, 541 S.W.2d 605, 608 (Tex.Crim.App. 1976). This is a fact for the jury
to decide under proper instruction of the court. Jackson v. State, 419 S.W.2d 370, 371
(Tex.Crim.App. 1967); Rodriguez v. State, 363 S.W.2d 472, 473-74 (Tex.Crim.App. 1962).
Under such circumstances, failing to request submission of the issue for jury consideration
is said to preclude a claim of a variance on appeal. Farris v. State, 819 S.W.2d 490, 496
(Tex.Crim.App. 1990), overruled on other grounds, Riley v. State, 889 S.W.2d 290
(Tex.Crim.App. 1994). In this case, like in Martin, 541 S.W.2d at 608, appellant brought
his claim of variance to the trial court’s attention by a motion for directed verdict, but did
not then request submission of the issue to the jury.

                                             -3-
       More importantly, though, consideration of the effect on the sufficiency of evidence

of a variance such as that alleged to exist here must involve an inquiry into the materiality

of the variance. 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 That inquiry considers whether the

variance deprived the defendant of notice of the charges and whether it subjected the

defendant to the risk of later prosecution for the same offense. Fuller, 73 S.W.3d at 253;

Gollihar, 46 S.W.3d at 257. Appellant does not contend that the spelling of the victim’s

name as Gabriel in the indictment surprised him or failed to provide him notice of the

charge against which he was required to defend. Indeed, it would be difficult for him to

sustain such a contention on this record. It is clear, for example, from the first sentence

of his trial counsel’s opening statement to the jury that appellant understood the identity

of the complainant. Nor does a risk of double jeopardy appear here, particularly given the

State’s motion to amend the indictment. The variance in the spelling of the victim’s name

in this case was not material, and may be disregarded in an evaluation of the sufficiency

of the evidence.5 Appellant’s point of error is overruled.




       4
        Like the statute under which the defendant was charged in Fuller, 73 S.W.3d at
253, the Penal Code section defining the offense of indecency with a child does not make
the name of the child a substantive element of the offense. Tex. Pen. Code Ann. § 21.11
(Vernon 2003).
       5
        Appellant does not contend that the variance in spelling the victim’s name rendered
the evidence insufficient as a matter of federal constitutional law. See Fuller, 73 S.W.3d
at 252-53 (citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979)).

                                             -4-
       With regard to the State’s contention there was no variance because the indictment

was amended, we note that amendment of the indictment was not accomplished by

interlineation of the original. The State cites Riney v. State, 28 S.W.3d 561 (Tex. Crim.App.

2000) for the proposition that an indictment may be amended by means other than

interlineation of the original, and notes that the trial court granted the May 2001 motion to

amend. Riney also makes clear, however, the continuing validity of the proposition that

neither a motion to amend nor the granting of such a motion constitutes the amendment

itself but merely form the authorization for it. 28 S.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 Worth 2001, no pet.). Our disposition of appellant’s point of error makes

it unnecessary that we determine whether the procedure employed by the State in this

case effectively resulted in amendment of the indictment, and we express no opinion on

that question here.


       Having overruled appellant’s point of error, we affirm the judgment of the trial court.




                                                   James T. Campbell
                                                        Justice


Do not publish.




                                             -5-
