Texas - Charging Instrument

Question 1

What is the purpose of an Indictment?

Answer 1

1. Allege Offense
2. Give notice
3. Bar subsequent prosecution
   Everything should be stated in an indictment which is necessary to by proved. CCP 21.03

Question 2

Can and indictment be filed electronically?

Answer 2

yes

Question 3

What does Indictment have to show regarding venue?

Answer 3

Indictment has to appear to be in court’s jurisdiction, not necessarily venue CCP 21.02 Skiller

Question 4

What is the test for whether indictment alleges offense specifically enough?

Answer 4

Certainty – must give D ability to plea a bar for prosecution of same offense CCP 21.04

Question 5

When is an Indictment “presented”?

Answer 5

Considered “presented” when grand jury acts and court receives (need not specify court) CCP 12.06

Question 6

What is a “variance” in an indictment?

Answer 6

discrepancy of charging instrument and proof at trial

Question 7

What are the 3 types of variance?

Answer 7

1. If varies from statutory language that defines the offense it ALWAYS renders evidence insufficient
2. Non-statutory allegations that describe an “allowable unit of prosecution” may or may not render evidence insufficient – depending if material
3. Other – does not render insufficient

Question 8

If variance at trial, what is the test?

Answer 8

Whether the indictment informed D of the charge sufficiently to allow him to prepare an adequate defense for what’s proved at trial? (i.e. screwdriver or hart metal-like object) Flenteroy CCA ‘05

Question 9

Does the indictment have to define terms?

Answer 9

Must define terms if not defined by statute and multiple possible meaning (in context of case)

Question 10

How much must be pleaded of Manner & Means?

Answer 10

“Manner and Means” if statute states M&M then that is all that must be pled

Question 11

What must be charged if crime is “intent to defraud”?

Answer 11

“Intent to Defraud” – need not name person defrauded CCP 21.05

Question 12

How must the D name be plead in indictment?

Answer 12

– initials OK, alias OK, “reasonably accurate description” with no name OK CCP 21.07
– middle name not marterial
– Jr., Sr., III - not material
– Idem sonans is a fact for jury to determine (doesn’t permit State to amend indictment)

Question 13

How must ownership be plead?

Answer 13

– possessor or owner OK CCP 21.08
– deceased person’s property – executor, admin, or heirs Id.
– “Unknown” owner – ok if alleged
– If competing ownership – whoever had “greater right of possession” at TIME of OFFENSE

Question 14

How must property be plead?

Answer 14

– Personal: Name, kind, number, and ownership CCP 21.09
o More specific than “merchandise” UNLESS indictment states “UNKNOWN”
– Real: General location in county, name of owner, occupant, or claimant

Question 15

If allegation of unlawful sale what must be plead?

Answer 15

Necessary to name purchaser CCP 21.12

Question 16

What must be plead if INTENT to commit offense?

Answer 16

– Conduct may be pled generally CCP 21.13

Question 17

What must be plead in perjury case?

Answer 17

– Need not include: precise language of statement; specific pleading, record, or proceeding; authority of court or person CCP 21.14
– Must include (enh. not elements McCuller CCA ‘85): substance of statement (i.e. subject matter and general import); person that administered the oath CCP 21.14

Question 18

In pleading Reckless or Negligent conduct, what must you allege?

Answer 18

– MUST allege specific acts relied upon CCP 21.15
– CANNOT just say “acted recklessly or with criminal negligence” Id.
– Acts need not be pled in “penal code” terms
– This does not preclude LESSER included submitted to jury
– DOES preclude submission of reckless or negligent if left out of indictment Reed CCA ‘03
– MUST OBJECT PRETRIAL to preserve error Rodriguez CCA ’90

Question 19

Do matters for judicial notice need to be plead?

Answer 19

No.

Example: whether a town is incorporated DOES NOT need to be pled CCP 21.18

Question 20

What if someone looses indictment?

Answer 20

– Court shall enter fact into minutes;
– May substitute indictment IF State’s attorney provides written statement that substitute indictment is substantially the same
– Commencement of prosecution dated from time of entry
– Does NOT impact jurisdiction

Question 21

What if a case is indicted in a court that doesn’t have jurisdiction for an offense (i.e. misd.)?

Answer 21

If indicted offense that district court doesn’t have jurisdiction MANDATORY transfer to lower court CCP 21.26

If transferred to Justice Court – county seat, convenient JP with GJ note (judge’s discretion), JP in town off offense CCP 21.27

Costs from district court can be taxed in JP court if transferred CCP 21.28

Question 22

When can the State amend the indictment?

Answer 22

Amending CCP 28.10
After notice State can amend indictment – 10 days notice to

After trial starts if D doesn’t object – Shall not be amended if:
• Charges defendant with additional or different offense
• Substantial rights are prejudiced

Question 23

What if state files to amend but amends inside 10 days?

Answer 23

Time as of ACTUAL amendment (physically) not request

Sanders Tyler ‘97

Question 24

Cause number in enhancement considered a substantial amendment to Indictment?

Answer 24

yes

Question 25

Alteration of weapon in Agg. Assault considered a substantial change?

Answer 25

yes.

Question 26

Addition of manner and means considered a substantial change?

Answer 26

yes.

Question 27

Changing dates considered a substantial change?

Answer 27

yes.

Question 28

Adding complainant considered a substantial change?

Answer 28

yes.

Question 29

What if the trial court treats Paragraphs as Counts in an indictment?

Answer 29

It’s a substantial amendment

Question 30

Is changing substance in PCS case a substantial amendment to indictment?

Answer 30

YES.

Question 31

Is abandonment of part of the indictment a substantial amendment?

Answer 31

NO

Question 32

Is adding an additional mental state a substantial amendment?

Answer 32

NO, if not separate statutory offense.

Cody Note: if it increases punishment YES

Question 33

If an change to an indictment is considered “surplusage” is it a substantial amendment?

Answer 33

No.

Question 34

When can court order AIDS & STD testing pre-trial?

Answer 34

AIDS & STD Testing
– If Indicted for (1) Continuous sexual abuse of child; (2) Indecency by Sexual Contact; (3) Sexual Assault; or Agg. Sex Assault
– Court’s motion or request of victim
– If victim request within 48 hours of presentation of Indictment
>Local health authority notifies victim of results
>Mandatory for “Harassment of Public Servant” charge
>State cannot use results in the criminal case

Question 35

Who can sign an Information?

Answer 35

Prosecutor, but Affiant in complaint cannot be the person prosecuting Wells CCA ‘74

Question 36

When is an Information “presented”?

Answer 36

Considered “presented” when filed by proper officer in proper court (need not specify which court) CCP 12.07

Question 37

To preserve Misjoinder Error?

Answer 37

1. Object to Misjoinder: judge should grant motion to quash, or force State to elect;
2. Request the State Elect: judge should grant
   >State must elect by the end of their case BEFORE defendant’s case

Question 38

When should cases be joined?

Answer 38

Offenses may be joined if arising from same criminal episode CCP 21.24
– Each in separate COUNTS

Question 39

What constitutes “same criminal episode”?

Answer 39

PC 3.01
– Regardless of whether harm directed toward or inflicted upon more than one person or thing
– Same transaction OR multiple transactions “constitute common scheme or plan”
– OR repeated commission of the same or similar offense

Question 40

Distinguish “Counts” and “Paragraphs”?

Answer 40

COUNT may contain multiple PARAGRAPHS
– Paragraphs cannot charge different offenses ONLY METHODS
Multiple OFFENSES require multiple COUNTS

Question 41

How should Counts be treated if multiple offenses alleged?

Answer 41

Multiple OFFENSES require multiple COUNTS
– Thus only one conviction PER count - Dues Process to Notice
– Multiple convictions on same count = “implied amendment” to indictment WITHOUT grand jury
– Each COUNT must have its own verdict form OTHERWISE violates unanimous verdict

Question 42

What happens to D if Motion to Quash is granted?

Answer 42

Misdmeneanor – if granted, D is immediately released from court’s jurisdiction CCP 28.04
Felony – if granted, court can order back into custody (10 days CCP 28.08), prosecute as if not filed (SOL!) CCP 28.05
Felony – if granted and clear SOL bar – then released by court CCP 28.06
Felony – if granted BECAUSE no offense alleged then discharged UNLESS new affidavit filed CCP 28.07
Motion to Quash - Examples:
• Granted – statute did not define “fictitious credit card” and multiple meanings possible Olurebi CCA ‘94