idem sonans doctrine in Texas

2010Jenke v. State, 487 S.W.2d 347 (Tex.Crim.App.1972). [2] See Tex. Penal Code Ann. § 22.02 (a)(2) (Vernon Supp.2009) and. § 29.03 (Vernon 2009). [3] Cause Nos. 58,210-A; 58,211-A; 58,212-A. [4] Cause No. 58,213-A. [5] Cause No. 58,216-A; 58,217-A. [6] At various stages of the pretrial proceedings, two of Appellant's appointed-counsel moved to withdraw from representation.

2010Jenke v. State, 487 S.W.2d 347 (Tex.Crim.App.1972). .

2011App. 1976). 37 For a thorough discussion of the historical treatment of “fundamental defects” in the indictment and the 1985 constitutional and legislative changes, see generally Studer v. State, 799 S.W.2d 263 (Tex. Crim.

2011For a thorough discussion of the historical treatment of “fundamental defects” in the indictment and the 1985 constitutional and legislative changes, see generally Studer v. State, 799 S.W.2d 263 (Tex.Crim.App.1990) (setting out prior cases and noting that, before the 1985 legislative changes, "[a] substance defect was considered 'fundamental error’ since a charging instrument with such a defect failed to confer jurisdiction upon the trial court, and any conviction had upon that instrument was therefore void.

1990By utilizing the doctrine of idem sonans, we. found no irreconcilable repugnancy in Keagan, 618 S.W.2d at 59 .

1984In Keagan v. State, 618 S.W.2d 54 (Tex.Crim.App.1981), the Court invoking the doctrine of idem sonans stated: “The law does not treat every slight variance in an indictment or information, if trivial, such as the misspelling of a like-sounding name, as fatal.” On appeal of an order revoking probation, appellant collaterally attacked an indictment (to which he had pled guilty and was accorded probation) as void.

1976The appellant has directed our attention to the test commonly applied in this jurisdiction, which is set out in Pedrosa v. State, 155 Tex.Cr.R. 155 , 232 S.W.2d 733 (1950), as follows: “In the case of Chaverea v. State, 141 Tex.Cr.R. 592 , 150 S.W.2d 241, 242 , we restated the rule governing the doctrine of idem sonans, as follows: ‘The rule of idem sonans is stated as follows in Branch’s Ann.Tex.P.C., sec. 22, page 11: “If the names may be sounded alike without doing violence to the power of the letters found in the variant orthography, or if the name as stated be idem sonans with the true na

1976The appellant has directed our attention to the test commonly applied in this jurisdiction, which is set out in Pedrosa v. State, 155 Tex.Cr.R. 155 , 232 S.W.2d 733 (1950), as follows: “In the case of Chaverea v. State, 141 Tex.Cr.R. 592 , 150 S.W.2d 241, 242 , we restated the rule governing the doctrine of idem sonans, as follows: ‘The rule of idem sonans is stated as follows in Branch’s Ann.Tex.P.C., sec. 22, page 11: “If the names may be sounded alike without doing violence to the power of the letters found in the variant orthography, or if the name as stated be idem sonans with the true na

1992Gayton, 732 S.W.2d at 725 .

1990Such was not the case, however, in Finklea v. State, 579 S.W.2d 497 (Tex.Cr.App.1979), another forgery case.

1981The opinions do not, however, take into account the doctrine of idem sonans, for the very obvious reason that the doctrine was not applicable to those causes. *59 Appellant additionally relies upon the cases of Webb v. State, 47 Tex.Cr.R. 305 , 83 S.W. 394 (1904) and Westbrook v. State, 23 Tex.App. 401 , 5 S.W. 248 (1887).

1981The opinions do not, however, take into account the doctrine of idem sonans, for the very obvious reason that the doctrine was not applicable to those causes. *59 Appellant additionally relies upon the cases of Webb v. State, 47 Tex.Cr.R. 305 , 83 S.W. 394 (1904) and Westbrook v. State, 23 Tex.App. 401 , 5 S.W. 248 (1887).

1976The appellant has directed our attention to the test commonly applied in this jurisdiction, which is set out in Pedrosa v. State, 155 Tex.Cr.R. 155 , 232 S.W.2d 733 (1950), as follows: “In the case of Chaverea v. State, 141 Tex.Cr.R. 592 , 150 S.W.2d 241, 242 , we restated the rule governing the doctrine of idem sonans, as follows: ‘The rule of idem sonans is stated as follows in Branch’s Ann.Tex.P.C., sec. 22, page 11: “If the names may be sounded alike without doing violence to the power of the letters found in the variant orthography, or if the name as stated be idem sonans with the true na

1976The appellant has directed our attention to the test commonly applied in this jurisdiction, which is set out in Pedrosa v. State, 155 Tex.Cr.R. 155 , 232 S.W.2d 733 (1950), as follows: “In the case of Chaverea v. State, 141 Tex.Cr.R. 592 , 150 S.W.2d 241, 242 , we restated the rule governing the doctrine of idem sonans, as follows: ‘The rule of idem sonans is stated as follows in Branch’s Ann.Tex.P.C., sec. 22, page 11: “If the names may be sounded alike without doing violence to the power of the letters found in the variant orthography, or if the name as stated be idem sonans with the true na

1950As directly supporting this conclusion, we refer to Garlington v. State, 141 Tex. Cr.

1950As directly supporting this conclusion, we refer to Garlington v. State, 141 Tex.Cr.R. 595 , 150 S.W.2d 253 , and Loven v. State, supra. *735 The state insists that, though the names Seanda and Senaida are different, appellant was not misled or prejudiced thereby and should not be heard to complain.

1950In other words, identity of sound is regarded as a surer method of measuring the similarity of names than identity of spelling, and so long as the names can be sounded alike "without doing violence to the power of the letters," any variation in orthography is immaterial, provided the misspelling does not transform the name into a wholly distinct appellation.'" See, also, Loven v. State, 145 Tex. Cr.R. 260, 167 S.W.2d 515 .

1926On tbe otber band, in tbe early case of Shields v. Hunt, 45 Tex. 424 , tbe court held tbat “Coonrod Fernash” and “Conrad Fur-inash” were not idem sonans, and in tbe case of McRee v. Brown, 45 Tex. 503 , tbe court held that service by publication; where tbe name was published “Robert McKee” when tbe real name was “Robert McRee,” would not support a judgment on tbe doctrine of idem sonans, and in said opinion stated: “In support of a judgment against a nonresident on constructive service, evidently tbe court should indulge in no presumption not strictly and clearly warranted by tbe record.” In F

1926On tbe otber band, in tbe early case of Shields v. Hunt, 45 Tex. 424 , tbe court held tbat “Coonrod Fernash” and “Conrad Fur-inash” were not idem sonans, and in tbe case of McRee v. Brown, 45 Tex. 503 , tbe court held that service by publication; where tbe name was published “Robert McKee” when tbe real name was “Robert McRee,” would not support a judgment on tbe doctrine of idem sonans, and in said opinion stated: “In support of a judgment against a nonresident on constructive service, evidently tbe court should indulge in no presumption not strictly and clearly warranted by tbe record.” In F

1926On tbe otber band, in tbe early case of Shields v. Hunt, 45 Tex. 424 , tbe court held tbat “Coonrod Fernash” and “Conrad Fur-inash” were not idem sonans, and in tbe case of McRee v. Brown, 45 Tex. 503 , tbe court held that service by publication; where tbe name was published “Robert McKee” when tbe real name was “Robert McRee,” would not support a judgment on tbe doctrine of idem sonans, and in said opinion stated: “In support of a judgment against a nonresident on constructive service, evidently tbe court should indulge in no presumption not strictly and clearly warranted by tbe record.” In F

1911Kahn v. Herman, 3 Ga. 266 ; Ogden v. Bosse, 86 Tex. 342 , 24 S. W. 798 ; Lyne v. Sanford, 82 Tex. 58 , 19 S. W. 847 , 27 Am.

1911Kahn v. Herman, 3 Ga. 266 ; Ogden v. Bosse, 86 Tex. 342 , 24 S. W. 798 ; Lyne v. Sanford, 82 Tex. 58 , 19 S. W. 847 , 27 Am.

1911Kahn v. Herman, 3 Ga. 266 ; Ogden v. Bosse, 86 Tex. 342 , 24 S. W. 798 ; Lyne v. Sanford, 82 Tex. 58 , 19 S. W. 847 , 27 Am.

1883(Henry v. The State, 7 Texas Ct. App., 388; Ward v. The State, 28 Ala., 53 ; Gresham v. Walker, 10 Ala., 370 ; Gahan v. The People, 58 Ill., 160 .) Applying this rule to the word “mrder,” used ■ in the verdict, we hold it to be idem sonans with the word “murder,” as properly spelled, and that the variance in the authography of the two is not a material one, but that their sound is so nearly the same, when pronounced, that there is scarcely, if, in fact, any difference.

1883(Henry v. The State, 7 Texas Ct. App., 388; Ward v. The State, 28 Ala., 53 ; Gresham v. Walker, 10 Ala., 370 ; Gahan v. The People, 58 Ill., 160 .) Applying this rule to the word “mrder,” used ■ in the verdict, we hold it to be idem sonans with the word “murder,” as properly spelled, and that the variance in the authography of the two is not a material one, but that their sound is so nearly the same, when pronounced, that there is scarcely, if, in fact, any difference.

1883(Henry v. The State, 7 Texas Ct. App., 388; Ward v. The State, 28 Ala., 53 ; Gresham v. Walker, 10 Ala., 370 ; Gahan v. The People, 58 Ill., 160 .) Applying this rule to the word “mrder,” used ■ in the verdict, we hold it to be idem sonans with the word “murder,” as properly spelled, and that the variance in the authography of the two is not a material one, but that their sound is so nearly the same, when pronounced, that there is scarcely, if, in fact, any difference.

1883The State, 41 Texas, 570 ; McMillan v. The State, 7 Texas Ct. App., 100; Curry v. The State, Id., 91.) In applying the doctrine of idem sonans, the rule is that if the words may be sounded alike without doing violence to the power of the letters found in the variant orthography, then the words are idem sonans, and the variance is immaterial.