Opinion
No. 05-01-01411-CR.
Opinion Filed October 31, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F00-73011-RI. AFFIRMED.
Before Justices MOSELEY, RICHTER, and FRANCIS.
OPINION
A jury convicted Cedrice Deon Bohanon of aggravated robbery and assessed punishment at fourteen years in prison. In five points of error, appellant complains (1) the evidence is legally and factually insufficient to sustain his conviction, (2) the trial court erred in instructing the jury regarding the availability of good conduct time, and (3) the parole law charge is unconstitutional as applied to him. We affirm the trial court's judgment. Dominic Le managed a liquor store on R.L. Thornton Freeway in Dallas. Just before closing one night, two armed men entered the store, pushed him to the floor, and robbed him of cash, checks, and a cell phone. Le was able to get a good look at only one of the two men. Two weeks later, a detective showed Le six photographs. Le selected appellant's photograph "right away" as one of robbers. Le also identified appellant at trial as the man who robbed him and said he recognized him because of his memory of what "happened that day." In his fifth point of error, appellant complains the evidence is legally insufficient because the indictment alleged the robbery victim was Dominic Lee, while the name proved at trial was Dominic Le. In making this argument, appellant ignores the rule of idem sonans. Under the rule of idem sonans, pronunciation or sound, not the spelling of a name, controls in determining similarity of names. Brown v. State, 843 S.W.2d 709, 712 (Tex.App.-Dallas 1992, pet. ref'd). Any variance between the name alleged and proved is immaterial if the name sounds the same or the attentive ear finds difficulty in distinguishing the two names when they are pronounced out loud. See Martin v. State, 541 S.W.2d 605, 607 (Tex.Crim.App. 1976). Questions involving the rule of idem sonans are properly left to the trier of fact because of the difficulty in preparing an appellate record to accurately describe the nuances of sound in a witness's articulation of a name. Id. We do not disturb a jury's determination that the names in question are idem sonans unless the evidence shows that the names are patently incapable of being sounded the same or that the accused was misled to his prejudice. Id. at 607-08. Here, the trial court instructed the jury to find the defendant not guilty, unless it found "beyond a reasonable doubt that the names `Lee,' appearing in the indictment, and `Le,' as testified to in this trial, are commonly pronounced the same or that the attentive ear finds difficulty in distinguishing them when pronounced." The jury, after hearing Le pronounce his name, found appellant guilty and found the names were indistinguishable. After reviewing the record, we cannot conclude that "Lee" and "Le" are patently incapable of sounding the same. Nor can we conclude the record shows appellant was somehow misled to his prejudice. We overrule the fifth point of error. In his first point of error, appellant argues the evidence is factually insufficient to prove appellant was the person who robbed Le at gunpoint. In a factual sufficiency review, we review the evidence in support of and contrary to the verdict to determine whether the evidence is so weak that it renders the verdict clearly wrong and manifestly unjust or the verdict is contrary to the great weight and preponderance of the evidence. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). While we are authorized to disagree with a fact finder's determination, any evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id. at 6. Appellant argues that Le "failed to perceive and remember the facts of the robbery with sufficient reliability to justify the jury finding that he was the man who robbed him." To the contrary, Le testified at length at trial about the robbery and appellant's role as the leader. While he testified he saw appellant's face for only about thirty seconds, Le said he would never forget it. Evidence showed appellant told the police he saw one of the robbers "real well" and gave a "very good description." Within a couple of weeks of the robbery, Le viewed a lineup of six photographs and identified appellant as one of the two men who robbed him. He was equally certain of his identification of appellant at trial and said he recognized appellant because of his memory of the robbery. The jury weighs the credibility of a witness's identification testimony. Having reviewed all the evidence, we conclude it is not so weak as to undermine confidence in the jury's determination nor was the State's proof of identity greatly outweighed by other proof. We overrule the first point of error. In his second point of error, appellant asserts the trial court erred by failing to properly limit applicable mental states to the relevant conduct elements in the jury charge. The law with respect to conduct elements applicable to robbery is fully set out in this Court's opinion in Ash v. State, 930 S.W.2d 192, 194 (Tex.App.-Dallas 1996, no pet.). See also Fields v. State, 966 S.W.2d 736, 739 (Tex.App.-San Antonio 1998), rev'd on other grounds, 1 S.W.3d 687 (Tex.Crim.App. 1999); Garza v. State, 794 S.W.2d 497, 500-01 (Tex.App.-Corpus Christi 1990, pet. ref'd). Assuming the trial court erred in failing to limit the definitions in the jury charge to the conduct elements to which they apply, we conclude appellant was not egregiously harmed. In his brief, appellant does nothing more than state in a conclusory fashion that the jury was confused. He does not present argument or analysis that suggests how the jury could have been confused or misled by the charge given or how the jury could have found him guilty without first finding he had the required culpable mental state. Looking at the charge as a whole and after reviewing the record, we fail to see how either could be the case. The application paragraph of the charge specifically described the manner and means by which appellant committed the robbery, by "intentionally and knowingly threaten or place another in fear of imminent bodily injury or death, and the defendant did then and there exhibit a deadly weapon . . . ." This statement sufficiently limited the culpable mental states of intentionally and knowingly to their relevant conduct element, result of conduct. See Ash, 930 S.W.2d at 195. The only contested issue at trial was whether appellant was the robber, not whether he acted with the culpable mental state. We overrule the second point of error. In his third and fourth points of error, appellant argues the trial court erred in instructing the jury regarding the availability of good conduct time because he was not eligible for good conduct time. The Texas Court of Criminal Appeals has concluded that a trial judge, who follows legislative dictates and instructs the jury according to article 37.07, section 4(a) when the defendant is not eligible, does not commit statutory error. See Luquis v. State, 72 S.W.3d 355, 363 (Tex.Crim.App. 2002). We overrule the third point of error. In his fourth point of error, appellant complains section 4(a) of article 37.07 of the code of criminal procedure, which requires a good conduct time instruction, is unconstitutional as applied to him. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2003). Nothing in the record suggests jurors discussed, considered, or tried to apply what they were told about good conduct time and parole, nor was the issue discussed in argument. The jury did not send out any notes indicating or expressing confusion about the possible application of good conduct in this case. Although appellant could have received a life sentence, the jury gave him fourteen years. We conclude, as did the court in Luquis, that appellant "has failed to shoulder his burden to demonstrate that there is a reasonable likelihood that this jury unconstitutionally misapplied the concept of `good conduct time' to assess a higher sentence as a result of the instruction, thereby denying appellant due process or due course of law." See id. We overrule the fourth point of error. We affirm the trial court's judgment.