Nos. 01-03-01172-CR, 01-03-01173-CR
Opinion Issued March 10, 2005. DO NOT PUBLISH. Tex.R.App. 47.2(b).
On Appeal from the 248th District Court, Harris County, Texas, Trial Court Cause No. 886,354 886,355.
Panel consists of Chief Justice RADACK and Justices HIGLEY and BLAND.
SHERRY RADACK, Chief Justice.
Appellant, Patrick Dwight Figures, pleaded guilty to two charges of aggravated robbery. After a trial to the jury on punishment, the jury assessed punishment at 20 years' confinement in cause number 886,354 (appeal no. 01-03-01173-CR) and 15 years' confinement in cause number 886,355 (appeal no. 01-03-01172-CR). In two points of error, appellant contends (1) there was a fatal variance between the indictment and the proof in cause number 886,354, and (2) the trial court committed reversible error by failing to submit a "good conduct time" instruction to the jury. We affirm.
IDEM SONAMS
In his first point of error, appellant contends that there is a fatal variance between the indictment and the proof in cause number 886,354. Specifically, appellant contends that the indictment alleges that the complainant's name was "Nicole Vasques," while the proof at trial showed her name to be "Nicole Vasquez." A variance between the allegation and proof of a name will not impugn the validity of a judgment of conviction provided the names sound alike or the attentive ear finds difficulty distinguishing them when pronounced. Farris v. State, 819 S.W.2d 490, 496 (Tex.Crim.App. 1990), overruled on other grounds, Riley v. State, 889 S.W.2d 290, 301 (Tex.Crim.App. 1993) (op. on reh'g). If a question arises whether two spellings are idem sonams, it is an issue of fact for the jury. Farris, 819 S.W.2d at 496. Unless the evidence shows the two are patently incapable of being sounded alike, a failure to request submission of the issue for the jury consideration will defeat any claim of a variance on appeal. Id. We find no evidence in the record that "Vasques" and "Vasquez" are patently incapable of being sounded alike. Therefore, the doctrine of idem sonams applies. Because appellant did not request the jury to be instructed concerning idem sonams, however, he waived any complaint concerning the variant spelling of the complainant's name when he did not ask that the issue be presented for the jury's consideration. Accordingly, we overrule point of error one. "GOOD CONDUCT TIME" CHARGE
In his second point of error, appellant contends the trial court erred by not including in the punishment charge the good conduct time instruction required by article 37.07, section 4(a) of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a) (Vernon Supp. 2004-2005). In this case, the trial court included the parole portion of the mandatory instruction and omitted the good conduct time portion of the instruction. The instruction is required in cases in which the jury assesses punishment and the charged offense is listed in section 3g(a)(1) of article 42.12 or the verdict contains an affirmative finding of a deadly weapon. Id. arts. 37.07, § 4(a); 42.12, § 3g(a). Aggravated robbery is listed in section 3g(a)(1) and there were deadly weapon findings in both cases. Appellant did not object at trial to this erroneous omission, but maintains he suffered egregious harm as a result. See Almanza v. State, 686 S.W.2d 157, 171-72 (Tex.Crim.App. 1984). We disagree. Section 4(a) of article 37.07 informs the jury of how good conduct time combines with actual time served to determine parole eligibility. Grigsby v. State, 833 S.W.2d 573, 576 (Tex.App.-Dallas 1992, pet. ref'd). The Legislature's intent in crafting this instruction was to increase the sentences assessed by juries. Id. Thus, this instruction is not designed to benefit defendants. Id. ("We fail to see how not giving a charge meant to increase the length of a sentence harms an appellant."). If any party was harmed by the omission of the good conduct instruction, it was the State. In fact, appellant's sentences of 20 years and 15 years fall on the low end of the range of punishment. See TEX. PEN. CODE ANN. §§ 12.32, 29.03(b) (Vernon 2003). We conclude appellant has failed to show egregious harm. We overrule point of error two. We affirm the judgments of the trial court.