concurring.
The majority opinion betrays a complete and utter misunderstanding of the most fundamental tenet of criminal jurisprudence, namely that due process is violated when an indictment alleges one offense but the State proves another. Ward v. State, 829 S.W.2d 787, 794 (Tex.Cr.App.1992). In light of this misunderstanding, the majority states: “This ease does not involve a ‘variance’ of any type ...” Ante at 22.1 Instead, the majority frames the issue in the context of a defective charging instrument, see, Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990), and holds that because appellant did not object prior to trial he may not complain on appeal. But the majority fails to recognize that appellant could not possibly have objected prior to trial because the variance was not evident until during trial. Consequently, Studer has no application whatsoever to the instant case.2
The majority opinion reflects an inability to recognize that the State bears the burden of proving what it alleged. Thankfully, the Court of Appeals correctly recognized the point of error as raising a variance issue. The Court of Appeals determined there was a variance, that the variance was fatal and ordered acquittal. Grant v. State, 944 S.W.2d 499, 501 (Tex.App.—Beaumont 1997). We granted review to consider whether that determination was correct. I offer this concurring opinion because the variance in the instant case was not fatal.
In Stevens v. State, 891 S.W.2d 649 (Tex.Cr.App.1995), we last considered a variance issue. Stevens was charged with aggravated sexual assault and the indictment used a pseudonym to name the complainant. Id., *24891 S.W.2d at 650. The Court began its analysis by stating:
As a general rule a variance between the indictment and the evidence at trial is fatal to a conviction. Corley v. State, 158 Tex.Crim. 207, 254 S.W.2d 394 (1953). This is because Due Process guarantees the defendant notice of the charges against him. Ward v. State, 829 S.W.2d 787, 794 (Tex.Cr.App.1992). Due Process is violated when an indictment alleges one offense but the State proves another. Id.
Id., 891 S.W.2d at 650. The Court went on to explain:
However, not every variance between the evidence at trial and the indictment is fatal. In Plessinger v. State, 536 S.W.2d 380 (Tex.Cr.App.1976), we explained: “The object of the doctrine of variance between allegations of an indictment is to avoid surprise, and for such variance to be material it must be ;such as to mislead the party to his prejudice.” Id., 536 S.W.2d at 381 (citations omitted). In other words, only a material variance is fatal.
Id., 891 S.W.2d at 650. The issue in Stevens was whether the variance deprived Stevens of notice of the charges against him and the Court considered whether the variance worked to the detriment of the defendant. We determined:
The victim’s legal name was provided to appellant in compliance with his motion seeking disclosure of the State’s witnesses. Moreover, appellant, in his pre-trial motions, specifically referred to the victim by legal name. Pursuant to. one such motion, the trial judge held,a hearing at which time the victim testified to establish his competency to testify. Finally, the State filed notice of its intent to offer the outcry testimony of the victim to his mother. Tex.Code Crim. Proc. Ann. art. 38.072. Appellant objected and a pre-trial hearing was held. At the hearing all parties referred to the victim and his mother by their legal names. Clearly, any variance between the indictment and the proof offered at trial did not operate to the appellant’s surprise or prejudice his rights. Plessinger, 536 S.W.2d at 381. In other words, the variance was not material, (emphasis added)
Id., 891 S.W.2d at 650.
In the instant case, there is no showing appellant was surprised or mislead as required by Plessinger, 536 S.W.2d at 381. The State’s subpoena listed “Lt. Craig Lawson.” The information alleged appellant evaded arrest from “Officer Lawson” and the proof at trial established appellant evaded arrest from “Lieutenant Craig Lawson.” Therefore, even though there was a variance, it was not material and, consequently, not fatal to the conviction.
With these comments, I join the judgment but not the opinion of the Court.
. Paradoxically, the majority praises this opinion as doing "a fine job of explaining the law regarding variances.” Ante at 22, n. 1. However, the footnote only serves to underscore the majority’s failure to understand the ground for review. The footnote suggests that there cannot be a fatal variance involving the complainant’s name. Of course, that suggestion is belied by Ward, supra, where it was readily apparent the case involved a single burglary but we nevertheless found a fatal variance between the name alleged in the charging instrument, Seth Haller, and the proof at trial which established Steve Scott as the building’s owner. 829 S.W.2d at 794. Similarly, in the instant case, appellant argued there was a fatal variance because the charging instrument alleged Officer Lawson, however the individual who testified at trial was Craig Lawson. The Court of Appeals agreed and found there was a fatal variance. Grant, 944 S.W.2d at 501.
. Deltenre v. State, 808 S.W.2d 97 (Tex.Cr.App.1991), is instructive. There the defendant was charged with escape. The indictment alleged:
that appellant ‘. did then and there intentionally and knowingly escape from the custody of Dave Fondren, a peace officer, after the said defendant had been convicted for the offense of burglary of a habitation, a felony.'
Id., 808 S.W.2d at 98. At trial, the proof adduced was the defendant had escaped from the custody of Dave Fondren, a jailer. The Court determined there was a fatal variance.
What is telling is there was no discussion of a defect in the indictment and this opinion was issued less than five months after Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990), the "controlling" authority of the majority.
I pause to note that when the issue is one of idem sonans, an objection is required at trial to preserve the error. See, Flanagan v. State, 620 S.W.2d 591 (Tex.Cr.App.1981); and. Martin v. State, 541 S.W.2d 605 (Tex.Cr.App.1976). That is not the case here.