                                   NO. 07-06-0429-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                      JUNE 6, 2007

                          ______________________________


                          ANTHONY D. JAMES, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2006-411486; HONORABLE CECIL G. PURYEAR, JUDGE

                         _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant, Anthony D. James, appeals his conviction on four counts of aggravated

sexual assault of a child and one count of indecency with a child. By two issues, he

contends his conviction should be reversed because (1) there was a fatal variance between

the allegations in the indictment and the proof adduced at trial concerning the name of the
victim, and (2) the trial court erred by failing to submit a proper limiting instruction to the jury

concerning evidence of extraneous offenses. Finding no error, we affirm the conviction as

to each count.


                                          Background


       Appellant was charged by indictment with ten counts of sexual abuse pertaining to

two victims, Aliakeke Harlan and Dazhina Harlan. Counts 1 through 3 accused Appellant

of aggravated sexual assault by “intentionally and knowingly caus[ing] the penetration of

the female sexual organ of ALIAEKEK HARLAN, a child . . . younger than fourteen (14)

years of age, by the defendant’s finger” on three separate dates. Count 4 accused the

Appellant of aggravated sexual assault by “intentionally and knowingly caus[ing] the sexual

organ of ALIAEKEK HARLAN, a child . . . younger than fourteen (14) years of age, . . . to

contact the mouth of the defendant,” while Count 5 alleged that Appellant did commit the

offense of indecency with a child by “intentionally and knowingly, with intent to arouse and

gratify the sexual desire of any person, engage in sexual contact by touching the breast of

ALIAEKEK HARLAN, . . . .” Counts 6 through 10 dealt with offenses wherein the alleged

victim was Dazhina Harlan; however, prior to the commencement of trial in this proceeding,

the trial court severed Counts 1 through 5 from Counts 6 through 10.


       After a jury convicted Appellant on Counts 1 through 5, the State introduced during

the punishment phase of trial evidence of prior convictions sufficient to enhance the range

of punishment for the four counts of aggravated sexual assault to 25 to 99 years or life, and


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for the one count of indecency with a child to that of a first degree felony, or 5 to 99 years,

or life and a fine of up to $10,000. The trial court then sentenced Appellant to four

concurrent life sentences for Counts 1 through 4, and a fifth concurrent sentence of 40

years for Count 5. Appellant gave timely notice of appeal.


                         Variance of Name Alleged and Proved


       By his first issue, Appellant contends that his conviction should be reversed because

there was a fatal variance between the allegation contained in the indictment and the proof

adduced at trial concerning the name of the alleged victim of the offense. The indictment

alleges that the victim of Counts 1 through 5 is “Aliaekek Harlan.” The evidence adduced

at trial revealed that the correct spelling of the victim’s name was “Aliakeke Harlan.”


       Relying on the doctrine of idem sonans, Appellant persuaded the trial court to charge

the jury as follows:


       You are instructed that unless you find from the evidence beyond a
       reasonable doubt that the names Aliaekek Harlan, appearing in the
       indictment, and Aliakeke Harlan, as testified to in the trial are usually
       pronounced in such a way that the names are indistinguishable or that the
       attentive ear finds difficulty in distinguishing them when pronounced, you will
       find the defendant “Not Guilty” as to all counts.


On appeal, Appellant contends the doctrine of idem sonans governs this case and that the

evidence is factually insufficient to sustain the conviction because the true name of the




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victim was incapable of being pronounced the same as the name alleged in the indictment.

We disagree.


       Appellant is correct, a misspelled name in an indictment does not create a material

variance between allegation and proof if the name alleged and that pronounced are idem

sonans. Jenke v. State, 487 S.W.2d 347, 348 (Tex.Crim.App. 1972). However, that

principal does not preclude the conclusion that a misspelled name in an indictment does

not create a material variance between allegation and proof if the name alleged in the

indictment provides the accused with sufficient notice of the offense charged. Notice is

sufficient if the accused is not unfairly surprised or prejudiced in some manner. Plessinger

v. State, 380, 381 (Tex.Crim.App. 1976).


       A “variance” occurs when there is a discrepancy between the allegations in the

charging instrument and the proof at trial.      Gollihar v. State, 46 S.W.3d 243, 246

(Tex.Crim.App. 2001). While some courts have treated variance claims as being a

sufficiency of notice issue, the Texas Court of Criminal Appeals has routinely treated a

variance claim as a sufficiency of the evidence issue. Id. at 247. While a materiality or

harmless error-type requirement is not generally a component in a traditional sufficiency

of the evidence analysis, it is nevertheless required in the context of a variance-

insufficiency claim. In that regard, a variance that is not prejudicial to a defendant’s

“substantial rights” is immaterial. Id. at 248. In determining whether or not a defendant’s

substantial rights have been prejudiced, we must ask two questions: (1) whether the



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indictment, as written, provides the defendant with notice sufficient to allow him to prepare

an adequate defense at trial, and (2) whether prosecution under the deficiently drafted

indictment would be sufficient to allow the defendant’s double jeopardy rights to attach,

thereby avoiding the prejudice of being prosecuted for the same crime at a later date. Id.


       In Stevens v. State, 891 S.W.2d 649, 650 (Tex.Crim.App. 1995), the indictment

alleged that the defendant committed aggravated sexual assault against “100589-040584,"

a pseudonym; however, at trial there was no evidence that the victim and the alleged

pseudonym were the same person. Applying a materiality requirement, the Court of

Criminal Appeals affirmed the conviction holding that the variance between the indictment

and proof did not operate to the defendant’s surprise or prejudice despite the fact that

“100589-040584" and the actual name of the victim were clearly not idem sonans. Id. at

651.


       In this case, Appellant was personally acquainted with the victim. She was the

daughter of Appellant’s girlfriend and she lived in the same household for several years.

She shared the same last name and was the sister of the victim in the severed counts.

Furthermore, Appellant never claimed to be mislead and never sought a continuance in

order to allow him to meet any surprise. Given the uniqueness of the name “Aliakeke,” the

orthographic similarity of the spelling (Aliakeke v. Aliaekek), the nature, extent and duration

of the relationship between Appellant and the alleged victim, as well as the similarity of

allegations pertaining to the victim’s sister, and the lack of any evidence of surprise, we find



                                               5
that no rational person would be confused. Because we further find that double jeopardy

would bar any future prosecution for the offenses alleged as to Aliakeke, we conclude the

variance in this case was immaterial. In so finding, we overrule Appellant’s first issue.


                        Extraneous Offense Limiting Instruction


       By his second issue, Appellant contends the trial court erred by failing to submit a

proper limiting instruction to the jury concerning evidence of extraneous offenses. Upon

close examination, Appellant’s issue is actually a two-part issue complaining of alleged trial

court error in (1) giving an improper limiting instruction during trial following the admission

of the victim’s testimony regarding other offenses, and (2) giving an improper instruction

in the jury charge which failed to limit the jury’s consideration to those purposes for which

that evidence was admitted.


       As a general principle, a multifarious point of error presents nothing for review.

County v. State, 812 S.W.2d 303, 308 (Tex.Crim.App. 1989). However, when an appellate

court can review an appellant’s points and determine the nature of the complaint with

sufficient certainty to acquaint it with the issues, the court should address the arguments

presented. In this case, Appellant complains of the inadequacy, as opposed to the

absence, of the contemporaneous limiting instruction given during the guilt-innocence

phase of trial, as well as the inadequacy of the limiting instruction given in the court’s

charge. If Appellant was not entitled to an instruction in the first place, then the adequacy

of the instruction given at either point in the trial would be rendered moot. Therefore,


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because Appellant’s entitlement to an instruction is dispositive of his multifarious issue, we

will address that facet of his complaint.


       During the presentation of its case-in-chief, the State offered the testimony of the

victim, Aliakeke Harlan, concerning multiple instances of conduct like those described in

the five counts of the indictment. At no time during the proceeding did Appellant request

the trial court to compel the State to make an election as to which specific instance of

conduct it was relying upon to prove the allegations contained in the indictment. As a

result, none of the instances of conduct described were “extraneous offenses.” Rodriguez

v. State, 104 S.W.3d 87, 91 (Tex.Crim.App. 2003). Appellant’s remedy was to require the

State to elect the occurrence on which it sought to rely for conviction. Id. Because none

of the testimony amounted to testimony concerning an extraneous offense, the trial court

did not err in failing to give the instruction requested. Appellant’s second issue is overruled.


                                         Conclusion


       Having overruled Appellant’s two issues, we affirm the judgment of the trial court as

to each count.


                                                   Patrick A. Pirtle
                                                       Justice



Do not publish.




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