dissenting.
I respectfully dissent. I do not agree that the law question recognized by the majority is grounds for setting aside the conviction.
The problem, as evidenced by the majority opinion, is centered around the misspelling of the victim’s first name. The defendant was convicted of attempted murder. On direct examination at the guilt innocence of the trial, the following testimony took place when the victim was on the stand:
[Prosecution:]
Q. Mr. Garcia, are you the same Porfirio Garcia that was testifying in front of these folks yesterday?
A. Yes.
Q. I notice in the indictment your first name is spelled P-O-R-F-I-N-O. That is not correct, is it?
A. No.
Q. The name is Porfirio. Is that correct?
A. Porfirio Garcia, yes.
Q. But are you the same Mr. Garcia that was shot on January 14th, 1986?
A. Yes. (Emphasis ours.)
The law is very ably set out by Judge Dally, writing for the Court of Criminal Appeals in Martin v. State, 541 S.W.2d 605 (Tex.Crim.App.1976). He there recognizes that the appellate courts are limited to reading a “cold record” and are very rarely in a position to make an informed determination of whether two names could be or were pronounced to sound the same. He points out that the trial judge or jury, having heard the pronunciation of the names is in a better position to determine whether or not the names are or can be sounded the same. If they sound the same, they are considered to be the same, and the law recognizes that such a typographical error is not sufficient to cause a reversal.
In accordance with Martin, the appellant should have requested an instruction so that the jury could have determined if the names were capable of being sounded the same. If the names do not sound the same *727and the jury makes such a determination, the variance is fatal and the proof will not support a conviction. But, if the trier of the facts determines that the names are one in the same and sound the same, there is no cause to reverse an otherwise satisfactory conviction.
Here, the defense attorney requested an instructed verdict in favor of the defendant. The very able trial judge, who had heard the name pronounced throughout the trial, determined by overruling the motion that there was no cause for setting aside the conviction. The issue having been raised, the defense did not take the next necessary step required for perfecting the error by requesting a jury determination, but apparently satisfied himself with the trial court’s ruling. No perfection of the error, if any, occurred thereafter by the defendant. See Flanagan v. State, 620 S.W.2d 591 (Tex.Crim.App.1981); Malone v. State, 630 S.W.2d 920 (Tex.Crim.App.1981).
The majority would disregard the Court of Criminal Appeals’ opinion in Martin and the clearly distinguishable opinions in Cox v. State, 608 S.W.2d 219 (Tex.Crim.App.1980); Escobar v. State, 578 S.W.2d 139 (Tex.Crim.App.1979) and Grant v. State, 568 S.W.2d 353 (Tex.Crim.App.1978) and hold, as a matter of law, that Porfino and Porfirio are patently incapable of being pronounced to sound the same. This is irrespective of the trial court’s ruling in overruling the motion for instructed verdict.
It is the pronunciation or sound of a name, not the spelling, that controls in determining whether two words are idem sonans. Jackson v. State, 419 S.W.2d 370, 371 (Tex.Crim.App.1967); Fowler v. State, 379 S.W.2d 345, 348 (Tex.Crim.App.1964); see also Jones v. State, 27 S.W.2d 653, 656 (Tex.Crim.App.1930).
I also point out that, while appellate courts are generally not in an ideal position to determine whether two names were or could be pronounced the same, this is even more true when the names in question are of foreign derivation. Our court is certainly in no position, based on this “cold” record, to determine if Porfino and Porfirio were or could be sounded the same. Cf. Pedrosa v. State, 232 S.W.2d 733 (Tex.Crim.App.1950) (defendant presented expert witness testimony that the two names in question could not be pronounced alike either in English or Spanish). No such testimony occurred in this case.
I would overrule appellant’s first point of error.