I respectfully dissent to the majority's reversal of appellant's conviction and order of acquittal. The first point of error stated by appellant contends:
The trial court erred in overruling appellant's trial motion for directed verdict once it became unequivocally clear that the name of the complainant alleged in the information was patently incapable of being sounded like that of the testifying complainant, e.g.: "Officer", "Craig."
The majority states: "It is undisputed that this is not a case of Idem Sonans . . ." but the point of error presented to the Court is that a directed verdict was mandated solely because of the complainant's name was incapable of being sounded like "Officer." Appellant's point of error one should be overruled because the State is not required to prove the officer's given name sounded like "Officer."
I disagree with the majority's analysis of appellant's challenge to the "legal sufficiency" of the evidence to support the conviction. The legal sufficiency of the evidence is measured by a constant standard: whether the evidence,viewed in the light most favorable to the prosecution, supports every essential element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The majority orders appellant's acquittal without ever stating the proper standard of review or analyzing the evidence in the light most favorable to the prosecution. Did the State prove what it alleged in the information? I am compelled by the record to answer in the affirmative, so I believe the majority errs to hold otherwise.
The legal sufficiency of the evidence is measured by comparing the evidence with the information as incorporated into the application paragraph of the charge. See Jones v.State, 815 S.W.2d 667, 670-71 (Tex.Crim.App. 1991).1 A variance between the allegations and the proof may render the evidence insufficient to sustain a conviction. Franklin v.State, 659 S.W.2d 831, 833 (Tex.Crim.App. 1983);Seiffert v. State, 501 S.W.2d 124, 126 (Tex.Crim.App. 1973). Where an unnecessary matter is descriptive of that which is legally essential to charge a crime, it must be proven as alleged even though needlessly stated. Weaver v.State, 551 S.W.2d 419, 420 (Tex.Crim.App. 1977)2. As a general rule, a material variance between the information and the evidence adduced at trial is fatal to a conviction, because due process guarantees the defendant notice of the charges against him. Stevens v. State, 891 S.W.2d 649, 650 (Tex.Crim.App. 1995). Having included the allegation in its pleading, the State was obliged to prove the complainant was an officer, because "officer" is descriptive of that which is legally essential to charge the crime3. It is unreasonable to construe the word at issue as nothing other than an allegation of a given name. When placed before a surname, the word "officer" has a distinct common function.
I perceive no variance at all between the information and the evidence adduced at trial. The presence of the word "OFFICER" before "LAWSON" is not necessarily an allegation that the complainant's given name is "OFFICER." I suggest appellant and the majority are ignoring the obvious: the information entirely omitted the complainant's given name, but instead alleged the complainant was an officer. The information stated "did then and there unlawfully and intentionally flee from OFFICER LAWSON, a peace officer." The majority insists that "OFFICER LAWSON, a peace officer" alleges a given name, a surname, and a job, but I believe "LAWSON" alleges the complainant's name (at trial proven to in fact be his surname, although the State would have met the allegations in the information if complainant testified Lawson was his given name), and "OFFICER . . . a peace officer" is merely *Page 503 a redundancy which cannot compel acquittal. The issue in this appeal literally amounts to the majority's assumption of use of a capital letter "O," indicating a proper noun as opposed to a common noun. A proper noun need not be a given name, even when it appears before what is obviously a surname. In common English usage we capitalize titles and honorifics as well as given names, for instance, "Mister" or "Judge" or "Doctor." We also use them in conjunction with surnames. Had the information alleged the complainant was "Doctor Lawson," would the State be bound to prove the complainant's first name was "Doctor"? Would they even be bound to prove "Doctor" was an official title, that the complainant held a medical degree, or that he was commonly called "Doctor"? He could be a member of the medical profession, but could as likely be a professor. "Doctor" could be a nickname. In the absence of a timely objection to the information, could not the State satisfy its allegations by proving any of those possibilities? Or prove the complainant's vocation was that of a doctor, any kind of doctor? The lawyers trying this case repeatedly said "Officer Lawson" in propounding questions to the complainant, and the complainant always answered these questions without correcting his interrogator, but no one suggests the complainant did not testify. Why? Because Officer Lawson did testify.
I do not suggest the name of the complainant is not descriptive of that which is legally essential to charge the offense. The State should only be held to prove the complainant's given name was "Officer" if the information alleged the complainant's given name was "Officer." It did not. The information did not state appellant "did then and there unlawfully and intentionally flee from a person whose legal name is OFFICER LAWSON, a peace officer." The State's proof is consistent with the allegation: the complainant is an officer named Lawson, "OFFICER LAWSON."
I am not suggesting no error occurred. But the error, if any, was not one of proof. The State proved what it alleged, namely, that the complainant's name is Lawson and he is an officer. Further allegations in the information claim he is a particular kind of officer, a peace officer. The proof at trial established Craig Lawson was on the date of the offense an employee of the Montgomery County Constable's Office, Precinct 4. If we read the information to allege, and, therefore, bind the State to prove, that Craig Lawson was known as "Officer," that too appears in the record. After all, as I have already stated, officers of the court repeatedly asked "Officer Lawson" questions and this man responded. The jurors could certainly infer the man was known as "Officer Lawson" because they experienced this very phenomenon in the courtroom.
Perhaps the majority required the State to prove Officer Lawson's given name was "Officer" because article 21.07 provides an information is sufficient if it states one or more of the initials of the Christian name and the surname. TEX.CODE CRIM. PROC.ANN. art. 21.07 (Vernon 1989). I note that this law appears in the Code of Criminal Procedure and not in the Penal Code. This is just one indication that the manner of naming the complainant is a procedural matter and not an element of the offense which must be proven beyond a reasonable doubt. The State's failure to comply with article 21.07 by including the complainant's first name or initial in the information is a matter which was waived by failure to raise it in writing before the day of trial. TEX.CODE CRIM.PROC.ANN. art. 1. 14(b) (Vernon Supp. 1997). An omission from an information cannot be the basis for a claim of legal insufficiency of the evidence provided the State proves the omitted element at trial. See Fisher v. State, 887 S.W.2d 49 (Tex.Crim.App. 1994); Studer v. State, 799 S.W.2d 263 (Tex.Crim.App. 1990). The State was not limited to proving the complainant was "Officer Lawson" because he was christened "Officer." The State could meet the allegations in the information presented to the court by proof that the complainant was "Lawson" and that he held a position in our society which would result in the use of the proper noun "Officer" in conjunction with his surname, hence "Officer Lawson." The State met its burden the moment Craig Lawson testified he was an employee of the constable's office. *Page 504
I would overrule appellant's point of error four. As the majority sustains point of error four, I must dissent.