dissenting.
This is an appeal from a conviction by the trial court for the offense of burglary of a habitation with punishment assessed at five years’ probation.
Appellant was charged by indictment with intentionally and knowingly entering a habitation of Cecil Chatman with the intent to commit theft. The record on appeal reveals the name of the complaining witness to be Cecil Chapman.1
Appellant challenges the sufficiency of the evidence in his appeal.
After both sides rested, arguments were presented by counsel. In appellant’s argument, he informed the trial court: “Your Honor, I think that this is one of these cases where it is important that the tryer of the facts recall vividly the burden on the State to prove its case beyond a reasonable doubt.” “I think that this is a case where they have wholly failed to do that.” Thus, the trial court was put on notice that appellant was claiming that the evidence was insufficient to warrant a finding of guilty, 1. e., that the allegations and proof did not correspond to one another. His motion for a verdict of not guilty was denied.
A fatal variance in the allegations of an indictment and the proof will render the evidence insufficient to sustain a conviction. See Williams v. State, 49 Tex.Cr.R. 105, 90 S.W. 876 (1905), where the State alleged W. F. Yates, but the proof showed F. W. E. Yates, held, fatal variance requiring reversal.
Where the name alleged and the proof vary, there will, of course, always be a variance, but for reversible error to occur there must be a fatal or material variance between the allegations and the proof. Although the burden is on the State to prepare a proper indictment, because of the nuances of sound in a witness’ articulation of a name, the doctrine of idem sonans was adopted.
The law not regarding orthography, no harm comes from misspelling a name, provided it is idem sonans with the true spelling.... If the names may be sounded alike without doing violence to the power of the letters found in the variant orthography, then the variance is immaterial .... The true rule being that the misspelling, to be material, must have changed the word intended into another word having a different meaning. Pye v. State, 71 Tex.Cr.R. 94, 154 S.W. 222 (1913).2
*596In Chaverea v. State, 141 Tex.Cr.R. 592, 150 S.W.2d 241 (1941), this Court said;
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. . . 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 name, the variance and misspelling is immaterial.’ And in 30 Tex.Jur., page 602, it is said: ‘This phrase means “of the same sound,” and names are idem sonans if the attentive ear finds difficulty in distinguishing them when pronounced, or if common and long-continued usage has made them identical in pronunciation, irrespective of the rules of orthography. In 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. Id. at 242.
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Although we held in Martin v. State, Tex.Cr.App., 541 S.W.2d 605, 607 (1976), that: “[W]e will therefore refrain from disturbing on appeal a jury or trial court determination that names in question are idem sonans unless evidence shows that the names are patently incapable of being sounded the same or that the accused was misled to his prejudice,” nevertheless, if the names are not idem sonans as a matter of law, then the question of the sufficiency of the evidence may be raised on appeal, even where a jury has been given an instruction to resolve the issue and has found against the defendant. Cox v. State, Tex.Cr.App., 608 S.W.2d 219 (1980); Escobar v. State, Tex.Cr.App., 578 S.W.2d 139 (1979); Grant v. State, Tex.Cr.App., 568 S.W.2d 353 (1978). See also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Westbrook v. State, 23 Tex.App. 401, 5 S.W. 248 (Court of Appeals 1887), is directly in point to this cause for there we held Chapman and Chatman are not the same name and are not idem sonans as a matter of law. See also Branch’s Ann. Penal Code, Second Edition (1956), Vol. I, page 32. The indictment and proof being at fatal variance such as to render the evidence insufficient to support a conviction for the burglary of the residence of Cecil Chatman, as alleged, the judgment should be reversed and reformed to show an acquittal. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).
The majority, I feel, does not effectively dispose of appellant’s contention regarding the variance between the name Chatman and the name Chapman. Nor does it discuss the most recent decisions of this Court of Cox v. State, supra, or Grant v. State, supra.
In Cox, the defendant moved for an instructed verdict on the basis of variance, the motion was overruled but the trial court instructed the jury to resolve the issue and the jury did when it found the defendant guilty. Nevertheless, this Court, in a majority opinion by the author of this opinion, reversed the verdict of the jury.
In Grant, this Court was confronted with an identical issue as in Cox as the jury in that cause had also found against the defendant. Nevertheless, this Court reversed.
Today, the majority of this panel affirms appellant’s conviction, to which action I dissent, but in closing I ask: If Cox and Grant called for reversal, then why should this conviction not also be reversed?
I dissent.
Before the Court en banc.
. We observe from the record that the first witness for the State was not the complainant, but a neighbor who referred to the complainant by the last name of Chapman. We also observe the appeal attorneys use only the name Chapman in their briefs.
. “If the name, as spelled in the document, though different from the correct spelling thereof, conveys to the ear, when pronounced according to the commonly accepted methods, a sound practically identical with the correct name as commonly pronounced, the name thus *596given is a sufficient identification of the individual referred to, and no advantage can be taken of the clerical error. Black’s Law Dictionary 670-671 (5th ed. 1979). See also Pedrosa v. State, 155 Tex.Cr.R. 155, 232 S.W.2d 733, 735 (1950).