# 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/9681022

## 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:** Dissent by Onion
- **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/9681022

## 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

ONION, Presiding Judge,
dissenting.
On the original panel submission it was held that “Powell Battle and Paul Battell are names which are patently incapable of being sounded the same” and the names were not idem sonans.
The en banc majority now holds that since the issue was raised for the first time on appeal nothing is presented for review. Martin v. State, 541 S.W.2d 605 (Tex.Cr.App.1976), was cited. It was not overlooked for even in Martin it was noted that a determination below by a judge or jury that the names in question are idem sonans will not be disturbed on appeal “unless evidence shows the names are patently incapable of being sounded the same or that the accused was misled to his prejudice.”
In my opinion the names here in question are patently incapable of being sounded the same as pointed out in the panel opinion.
By holding that nothing is presented for review, the majority infers that the Powell Battle and Paul Battell are capable of being sounded the same. The only reasoning is found in footnote # 1 on the basis that “Paul” is pronounced in German communities as “Paool” sounding the same as “Powell.” I didn’t know until today that Harris County was a German community. Certainly the record doesn’t support the same or show that the parties or others involved spoke German or even spoke English using German pronunciation. Further, the majority engages in some type of improper judicial notice as the pronunciation of the name of a Houston department store.
To me the question is not even a close one. I dissent and also wholeheartedly join Judge Clinton’s dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9681022. Public record. Not legal advice.