No. 14-02-00234-CR.
Opinion Filed February 13, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 183rd District Court, Harris County, Texas, Trial Court Cause No. 698,154. Affirmed.
Before Justices YATES, ANDERSON, and FOWLER.
LESLIE BROCK YATES, Justice
In this appeal, appellant, Tonye Warmate, claims the evidence is legally insufficient to establish he sexually assaulted Tonya Martin because the indictment alleges the complainant to be "Tonya Martin" while the evidence reflects the complainant's name to be "Tanya Martin." We affirm.
Background
On October 8, 1997, following a bench trial, appellant was convicted of sexually assaulting his then girlfriend, Tanya Martin. He was sentenced to seven years' probation and assessed a $750.00 fine. In February 1999, the trial court found appellant had violated the conditions of his community supervision, revoked appellant's probation and sentenced him to seven years' confinement. An appeal from the revocation of appellant's probation has already been before this court. See Warmate v. State, No. 14-99-00626-CR (Tex.App.-Houston [14th Dist.] September 14, 2000, pet. ref'd) (not designated for publication). Appellant now seeks review of his October 8, 1997 judgment of conviction. As a threshold matter, the State argues this court does not have jurisdiction over this appeal because appellant did not file a timely written notice of appeal with respect to his October 8 judgment of conviction. The State points to the record as containing only copies of a notice of appeal. However, it is not necessary for the district clerk to provide this court with an original. Tex. R. App. P. 25.2(c) ("trial court clerk must then immediately send one copy to the clerk of the appropriate court of appeals."). The notice of appeal contained herein was properly file stamped as having been received by the district court clerk on October 27, 1997, within the statutorily required time frame. Tex. R. App. P. 26.2(a). The district clerk's failure to forward the notice as required shall not negatively affect a defendant's proper appeal. Therefore, this court has jurisdiction to hear this appeal. In his sole point of error, appellant argues the evidence is legally insufficient to support the verdict. The State's evidence showed the complaining witness as Tanya Martin, but it did not establish that Tonya Martin, as alleged in the indictment, was sexually assaulted by appellant. Such a challenge to the sufficiency of the evidence shall be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Gollihar v. State, 46 S.W.3d 243, 253 (Tex.Crim.App. 2001). A hypothetically correct charge need not incorporate allegations that give rise to immaterial variances and when faced with a challenge to the sufficiency of the evidence based upon a variance between the indictment and the proof, "only a material variance will render the evidence insufficient." Id. at 256-57. When reviewing such a variance, we must determine whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. Id. at 257 (quoting United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)). The prosecution's failure to prove a victim's name exactly as alleged in the indictment does not make the evidence insufficient under Gollihar. Fuller v. State, 73 S.W.3d 250, 253 (Tex.Crim.App. 2002). The victim's name is not a statutory element of the offense. Id. at 254. (citing Gollihar, 46 S.W.3d at 254 ("hypothetically correct jury charge" encompasses statutory elements of the offense as modified by the charging instrument). The variance between the indictment and the proof is also immaterial. There is no indication in the record that appellant did not know whom he was accused of injuring or that he was surprised by the proof at trial. Fuller, 73 S.W.3d at 254. Finally, the variance does not subject appellant to another prosecution for the same offense. Id. We overrule appellant's point of error and we affirm the trial court's judgment. Judgment rendered and Memorandum Opinion filed February 13, 2003.