# Malone v. State

> Court of Criminal Appeals of Texas · April 14, 1982 · 630 S.W.2d 920

URL: https://www.frixlaw.com/law-library/cases/9681020

## Case

- **Full name:** Sylvester MALONE, Jr., Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 14, 1982
- **Citations:** 630 S.W.2d 920
- **Precedential status:** Published
- **Opinion:** On rehearing by Odom
- **Judges:** Odom, Clinton, Onion, Davis, Teague, Roberts
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9681020

## How later opinions describe it (automated extraction)

- discussing P.J. Onion's views of idem sonans and stating that they "leave[] one to express, ‘Color Me Amazed One More Time.’ "

## Opinion text

OPINION ON STATE’S MOTION FOR REHEARING
ODOM, Judge.
On original submission of this appeal from an order revoking probation, the Court held reversal was required due to a variance between the allegation and proof of the name of the complainant. Specifically, it was held, “Powell Battle and Paul Battell are names which are patently incapable of being sounded the same. The names are not idem sonans.”
In reaching its decision, the panel on original submission overlooked the decision in Martin v. State, 541 S.W.2d 605 , and two important rules announced there:
“We conclude that the resolution of questions involving the rule of idem so-nans should be limited primarily to the trier of the facts. A trial judge or jury, having heard the pronunciation of the names in question by the parties involved, is in the better position to determine whether or not the names are or can be sounded the same; Fowler v. State, 379 S.W.2d 345 (Tex.Cr.App.1964); Jones v. State, supra; we will therefore refrain from disturbing on appeal a jury or trial court determination that names in question are idem sonans unless evidence shows that the names are patently incapable of being sounded the same or that the accused was misled to his prejudice. All decisions in conflict with the rule announced are hereby overruled.” (Emphasis added. Footnote omitted.)
“Questions involving the rule of idem sonans must be raised in the first instance at trial. If the issue is raised for the first time on appeal, it will be treated as having been waived and will present nothing for review. Again, all decisions in conflict with the rule announced are hereby overruled.”
The issue here was raised for the first time on appeal, so nothing is presented for review. 1
The State’s motion for rehearing is granted and the judgment is affirmed.
. We also note that even if the merits were before the Court, the contention would be overruled. Texans of German extraction still aware of the mother-tongue, and others familiar with that language, know that Paul is pronounced in German communities as pa-ool, sounding the same as Powell. Also, Houstonites, and others familiar with the well-known Houston department store Battelsteins, know the first two syllables of that name are regularly sounded the same as if spelled battle. Hence, Paul Battell and Powell Battle are not patently incapable of being sounded the same.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9681020. Public record. Not legal advice.