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ALEJANDRO LEE MARTINEZ

THE STATE OF TEXAS

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Before Chief Justice Valdez and Justices Dorsey and Kennedy⁽¹⁾

Opinion

Appellant was convicted by a jury of attempted murder and aggravated assault. Following his conviction, the trial court conducted a hearing on punishment and assessed punishment at confinement for fifty-five years. His appeal raises two issues which challenge the sufficiency of the evidence, both legally (issue one) and factually (issue two), to prove that the victim's name was Mariana Chaves, as alleged in the indictment.

To determine whether the evidence is legally sufficient to support the verdict, we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 319; Weightman v. State, 975 S.W.2d 621, 624 (Tex. Crim. App. 1998). In a factual sufficiency review, we examine all of the evidence impartially and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).

In alleging the name of the defendant, or any other person necessary to be stated in the indictment, it shall be sufficient to state one or more of the initials of the given name and the surname. When a person is known by two or more names, it shall be sufficient to state either name. Tex. Code Crim. Proc. art. 21.07 (Vernon 2001).

The indictment states that the offenses alleged were committed upon Mariana Chaves. The evidence shows that the victim was sometimes called "Becky." The record shows that at least four witnesses testified either that the victim was known by the name used in the indictment to identify the victim or that the victim identified herself by this name. No one testified that the victim was not the person named in the indictment or that the victim never used this name.

If there is evidence that a person was known by the name alleged in the indictment, then the issue is raised and is properly left to the jury to determine. Blankenship v. State, 785 S.W.2d 158, 160 (Tex. Crim. App. 1990). The evidence of the witness's name is neither legally nor factually insufficient. We overrule both issues raised by appellant's brief and AFFIRM the judgment of the trial court.

NOAH KENNEDY

Retired Justice

Do not publish

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this the 12th day of April, 2001.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).