Malone v. State

*922 TEAGUE, Judge,

concurring and dissenting.

I now find myself convinced that the names “Powell Battle” and “Paul Battell” are names patently capable of being sounded the same, and are idem sonans. I, must, therefore, join in Judge Odom’s opinion on State’s Motion for Rehearing.

However, I must dissent to the remainder of his opinion, because I still believe that this Court erred in its decision of Flanagan v. State, 620 S.W.2d 591 (Tex.Cr.App.1981), when it rejected my opinion that, if the name of the complaining witness and the name of the testifying witness are names patently incapable of being sounded the same, this is so fundamental to the law of allegata and probata that it constitutes fundamental error and may be raised for the first time on appeal.

On Appellant’s Motion for Rehearing, in Flanagan , Id., Presiding Judge Onion, the author of the panel opinion in this cause, not only agreed with the majority of the panel opinion in Flanagan , Id., in which I dissented, but additionally stated that the names “Cecil Chatman” and “Cecil Chapman” are idem sonans. Today, however, he remains convinced that “Powell Battle” and “Paul Battell” are not idem sonans. How “Chatman” and “Chapman” are patently capable of being sounded the same and “Battle” and “Battell” are not capable of being sounded the same leaves one to express, “Color Me Amazed One More Time.” See Aldrighetti v. State, 507 S.W.2d 770 (1974). However, because I believe that Presiding Judge Onion is correct in his opinion that the issue can be raised for the first time on appeal I join in his opinion, as well as Judge Clinton’s opinion.

For the above reasons, I respectfully join in Judge Odom’s opinion, and also join in Presiding Judge Onion’s and Judge Clinton’s respective opinions.