Pleadings Flashcards
What does an indictment or information have?
An indictment or information alleges facts and includes the charging offense and providing the accused with trial preparation notice.
To charge the offense, the facts constituting the elements of the crime are stated, statutory language is generally sufficient, and any victim must be named.
What are the formal requirements of an indictment or information?
An indictment or information must have:
- “in the name and by authority of the State of Texas”
- name of the accused (or describe)
- “charge” all elements of the elements
- specify enough detail to give accused notice
- allege crime was committed on a specific date
- establish venue
- “Against the peace and dignity of the State”
- Be signed (indictment: foreperson; information: prosecution)
T/F: Generally, jury can convict D only of an offense charged in indictment.
True. But sometimes jury is instructed or permitted to convict of lesser included crimes.
Trial is held on an indictment. The State proves D committed the assault exactly as alleged, except it was committed a month earlier than what State’s evidence indicated. D moves for a directed verdict on the ground of a variance between the pleading and the proof.
How should the trial judge rule?
Overrule the motion because the date alleged is not binding on the State at trial.
When should a jury be instructed on an uncharged offense if:
a) the other offense is a lesser included offense of the crime charged; and
b) evidence before jury is such that jury could find that D is not guilty of the charged offense but is guilty of the lesser included offense
What is the effect when D is convicted of a lesser included offense, but not of the charged offense?
D is acquitted of the charged offense but convicted of the lesser included offense.
What happens if D sees that their wrong name is on the indictment?
If the wrong name is on the indictment, D must raise this at arraignment, specify their true name, and judge will correct the indictment.
What is the effect if D waits until trial to raise that their name was wrong on the indictment (and thus they demand acquittal on variance grounds)?
D cannot get any relief at trial because raising the matter at the arraignment is the only remedy available.
T/F: A motion to suppress evidence may be made to claim that evidence should not be admitted at trial for a constitutional reason.
True.
What is a traditional motion in limine?
A traditional motion in limine asks only that the opposing party approach and notify the trial judge before developing specified matters before the jury.
What is a nontraditional motion in limine?
A nontraditional motion in limine asks that the court address and rule on matters before trial.
What must a defendant’s first motion for continuance because of a missing witness state?
A defendant’s first motion for a continuance because of a missing witness must state:
(i) name and residence of the witness;
(ii) diligence which has been used to procure the attendance of the witness;
(iii) material facts which the defense expects to prove by the witness;
(iv) that witness is not absent by the procurement or consent of the defendant;
(v) that motion is not being made for delay; and
(vi) no reasonable expectation that witness can be presented during the present term of the trial court.
T/F: Defects in charging instruments must be raised before trial.
Somewhat true. Generally, defects in charging instruments must be raised before trial unless it is a fundamental defect. A fundamental defect is a defect that prevents the instrument from being an indictment or information, e.g. no person specified as accused or cannot tell what crime is charged.
If the trial court “quashes” an indictment, how can the State respond?
The State can:
- take an immediate appeal;
- obtain a new indictment; or
- amend the indictment
How can a D challenge an indictment and when?
D can challenge the indictment by appropriate motion to quash, either due to form or to its substance. The motion must be filed before trial begins.
