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Flashcards in Texas - Charging Instrument Deck (42)
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What is the purpose of an Indictment?

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


Can and indictment be filed electronically?



What does Indictment have to show regarding venue?

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


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

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


When is an Indictment "presented"?

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


What is a "variance" in an indictment?

discrepancy of charging instrument and proof at trial


What are the 3 types of variance?

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


If variance at trial, what is the test?

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


Does the indictment have to define terms?

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


How much must be pleaded of Manner & Means?

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


What must be charged if crime is "intent to defraud"?

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


How must the D name be plead in indictment?

– 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)


How must ownership be plead?

– 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


How must property be plead?

– 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


If allegation of unlawful sale what must be plead?

Necessary to name purchaser CCP 21.12


What must be plead if INTENT to commit offense?

– Conduct may be pled generally CCP 21.13


What must be plead in perjury case?

– 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


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

– 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


Do matters for judicial notice need to be plead?

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


What if someone looses indictment?

– 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


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

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


When can the State amend the indictment?

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


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

Time as of ACTUAL amendment (physically) not request
Sanders Tyler ‘97


Cause number in enhancement considered a substantial amendment to Indictment?



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



Addition of manner and means considered a substantial change?



Changing dates considered a substantial change?



Adding complainant considered a substantial change?



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

It's a substantial amendment


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