Wrong Name Spelling on Indictment In Texas
Under the rule of idem sonans, absolute accuracy in spelling a name in an indictment is not required. See Smith v. State, 763 S.W.2d at 839 (Tex. App.-Dallas 1988, pet. ref'd),.
The use of a name is merely to designate the person intended, and that object is accomplished when the name given has the same sound as the true name. See id.
A misspelling in an indictment does not create a fatal variance when the alleged name and the correct name sound alike or the attentive ear finds difficulty distinguishing them when pronounced. See Farris v. State, 819 S.W.2d 490, 496 (Tex. Crim. App. 1990), overruled on other grounds by Riley v. State, 889 S.W.2d 290, 298 (Tex. Crim. App. 1993); Smith, 763 S.W.2d at 839.
As a general rule, a variance between the indictment and the evidence at trial is fatal to a conviction. See Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App. 1995).
This is because Due Process is violated when an indictment alleges one offense but the State proves another. See id. However, only a material variance is fatal. See id.
Therefore, a variance will result in reversal only when it misleads a party to his prejudice. See id.