OPINION
This is an appeal from a jury conviction for the misdemeanor offense of evading arrest with a sentence of 180 days in jail probated for one (1) year and a suspended fine of $300.00.
The dispositive issue this appeal presents is whether or not there is a fatal variance between the charging instrument [information] allegation and proof of the complainant's name. We hold that article 21.07 requires the State to allege in the charging instrument the complainant's given name when known to the State and the use of an identifier with a surname only is insufficient.1
Our record reveals that the information, in pertinent part, alleges that:
. . . BOBBIE GRANT, hereafter styled the Defendant, heretofore on or about OCTOBER 23, 1993, did then and there unlawfully and intentionally flee from OFFICER LAWSON, a peace officer who BOBBIE GRANT, knew to be a peace officer who was lawfully attempting to arrest or detain BOBBIE GRANT, for the purpose of questioning or investigating possible criminal activity.
The record reflects that four police officers testified at trial: Craig Lawson, Robin Krath, Steve Dorris, and Roy Self. The State's first witness, called as the complainant, introduced himself as "Lieutenant Craig Lawson."
Before the State completed direct examination of Lieutenant Craig Lawson, outside the presence of the jury, defense counsel was permitted to voir dire the witness, to wit:
BY MR. BARRIENTOS [defense counsel]:
Q. Mr. Lawson?
A. Yes.
Q. How do you spell your last name?
A. L-a-w-s-o-n.
Q. First name?
A. C-r-a-i-g.
Q. And that is your legal true and correct name?
A. Yes.
Throughout the subsequent testimony of the State's witnesses, fellow officers at the scene knew the complainant or referred to him as both "Lieutenant Lawson" or "Lieutenant Craig Lawson."
The application paragraph2 of the jury charge on guilt/innocence reads:
*Page 501Now, if you find from the evidence beyond a reasonable doubt that on or about
the 23rd day of October, 1993, in Montgomery County, Texas, the defendant, Bobbie Grant, intentionally fled from Officer Lawson, and that the said Officer Lawson was then and there a peace officer who was attempting to lawfully arrest the defendant and that the defendant knew Officer Lawson was a peace officer and knew Officer Lawson was attempting to arrest the defendant, then you will find the defendant guilty as charged.Allegation of Name Article 21.07 of the Code of Criminal Procedure provides:
In alleging the name of the defendant, or of any other person necessary to be stated in the indictment, it shall be sufficient to state one or more of the initials of the Christian name and the surname. When a person is known by two or more names, it shall be sufficient to state either name. When the name of the person is unknown to the grand jury, that fact shall be stated, and if it be the accused, a reasonably accurate description of him shall be given in the indictment.
TEX.CODE CRIM.PROC.ANN. art. 21.07 (Vernon 1989).
Before delving into the law that applies in this case, we believe it is important to first clarify the law that does not apply. It is undisputed that this is not a case of IdemSonans, a misspelling of a name, an unknown name, a nickname or an alias. Also, neither party argues that witness Lawson was known by two or more names nor suggests that "Officer Lawson" is his true Christian or given name in that the information only gives the correct surname of the complainant with an identifier, i.e., "officer."
The identity of the complaining witness must be alleged and proved by the State at trial. Scott v. State, 905 S.W.2d 783, 785 (Tex.App. — Waco 1995), pet.ref'd, 915 S.W.2d 505 (Tex.Crim.App. 1996). And the name of the complaining witness is a matter of substance. Brownv. State, 843 S.W.2d 709, 713 (Tex.App. — Dallas 1992, pet. ref'd).
Without citing any authority, the State first argues that the use of the surname only is sufficient under the statute [art. 21.07]. We disagree. See Stewart v. State, 31 Tex.Crim. 153,19 S.W. 908 (1892); Johnson v. State,63 Tex.Crim. 457, 140 S.W. 337, 339 (1911).
The State next argues that the correct last name [surname] of the complainant with an "identifier" is sufficient under the statute [art. 21.07]. We disagree. See Stewart, 19 S.W. at 908.
The State also argues that if there is evidence that the person is commonly known by the name alleged in the charging instrument, that the issue is raised and is properly left for the jury to determine. However, no where in our record is there any evidence that Lieutenant Craig Lawson was otherwise commonly known as "Officer Lawson."
Lastly, the State contends that it is sufficient that the person "be sometimes called" by the alleged name; and if there is some proof of such, resolution of any variance is up to the jury under proper instructions. See Blankenship v.State, 785 S.W.2d 158 (Tex.Crim.App. 1990). The State argues the record reflects that the complainant is sometimes called "Officer Lawson" because in the instant case at trial, appellant's attorney referred to or addressed him as "Officer Lawson." We believe the true test of the rule addressed inBlankenship refers to pre-charging occurrences and does not include in trial occurrences. Otherwise, the State could do indirectly that which they are prohibited from doing directly, i.e., amending the charging instrument after trial on the merits begins by simply referring to or addressing the complainant by the alleged name rather than the correct surname and given name. See Brown, 843 S.W.2d at 711.
For the reasons stated we find there is a fatal variance between the charging instrument allegation and proof of the complainant's name.
Appellant's fourth point of error is granted and we need not address his remaining points.
Judgment is reversed and an order of acquittal is entered.