Criminal Procedure And Evidence: Pleadings

Front 1

An indictment or information alleges only __.

What two things does it not do?

Back 1

1) Alleges only facts.

2) Does not specify charged crime by name. Does not specify the statute creating the crime.

Front 2

What are 2 distinguishable substantive requirements of charging instruments?

Back 2

1) Charging the offense; and

2) Providing the accused with trial preparation notice.

Front 3

To "charge the offense," what 3 requirements must be met?

Back 3

Must allege:

1) Facts constituting all elements;

2) Statutory language that is sufficient;

3) Any victim must be named

Front 4

To provide ___, you might need more detail and specificity.

Back 4

Notice

Front 5

The Code of Criminal Procedure imposes a list of "requisites" that must be met on the face of of an indictment or an information. What are they?

Back 5

1) Commence: "in the name and by authority of the State of Texas"

2) Name the accused (or describe him)

3) Set forth ('charge") all elements of offense

4) Specify enough details to give accused notice

5) Allege crime was committed on a date that was both: a) within period of limitations; 2) before presentation of indictment

6) Allege commission of crime in a county within court's jurisdiction (venue)

7) Conclude: "Against the peace and dignity of the State"

8) Be signed (indictment: foreperson; information: prosecutor)

Front 6

What is significance of indictment for trial?

Back 6

It determines offenses for which the accused can be convicted. Generally, can convict only of offense charged in indictment. BUT, sometimes jury instructed (permitted to convict of) "lesser included" offenses

Front 7

Specific detailed allegations may give rise to ___, which sometimes requires aquittal.

Back 7

"Variance" between indictment and proof

Front 8

What makes an offense a lesser included offense of another (and more serious) if:

Back 8

1) It's proved by some but not all of the same facts required to prove the more serious offense; or

2) It requires only a less serious injury to the same person, property or interest as the more serious; or

3) It reuires only a less culpable mental state than the more serious offense; or

4) It consists of an attempt to commit the more serious offense

Front 9

When should a jury be instructed on an uncharged offense?

Back 9

1) Other offense is a lesser included offense of the crime charged; and

2) Evidence before the jury is such that the jury could find both that:
- D is not guilty of charged offense; and
- D is guilty of the lesser included offense

Front 10

When should counsel ask that jury be given charge on a lesser charge?

Back 10

After evidence has closed and parties have rested.

Front 11

What must D. do if he believes that name specified as the accused in the indictment is not D's "true" name?

Back 11

1) D. must raise this at arraignment;

2) D. must specify his true name;

3) Judge is to correct the indictment so it accuses D. by his own true name

Front 12

If D waits until trial and variance develops between his alleged name and proved name, can he get an acquittal on variance grounds?

Back 12

No. Raising matter at arraignment is only remedy available.

Front 13

Generally, when must defects in charging instruments be raised?

What is the exception?

Back 13

They must be raised before trial. Motion must be filed before day trial begins.

Exception is for "fundamental defects." that prevent instrument from being an indictment/information. These can be raised anytime. These defects can be:

1) No person specified as accused
2) Can't tell what crime is charged

Front 14

If a trial court "quashes" indictment, how may State respond?

Back 14

1) Taking an appeal;

2) Obtaining a new indictment; or

3) Amend the indictment

Front 15

How may the D challenge the indictment? When must he assert such a challenge?

Back 15

Challenge indictment by appropriate motion, either
1) Exception to form of indictment;
2) Exception to substance of indictment.

Informally, called "motions to quash" the indictment.

Must be filed before day on which trial begins.

Front 16

What happens if D fails to timely assert challenge to indictment?

Back 16

Defect can't be raised later in the trial court, on appeal, or in post-conviction habeas corpus.

Front 17

If court of appeals rules that challenge to indictment was error, can it reverse conviction for new trial?

Back 17

Conviction should be reversed only if he shows harm from defect in the indictment.

Front 18

When is an amendment to indictment permitted?

Back 18

At any time if D does not object

Front 19

What amendments are permitted over objection depends on?

Back 19

When the amendment is sought.

When sought before day of trial, general rule is that any amendment is permitted irregardless of whether it's of form or substance. Amendment not permitted over D's objection if it could cause indictment to alleged a different offense; or an additional offense; or prejudice substantial rights of the D.

If sought on day of trial but before trial begins OR after trial begins, no amendments are permitted over objection.

Front 20

What procedural protection is available to D for curing defects by amendment?

Back 20

1) D entitled to have advance notice of a proposed amendment

2) Trial court must authorize an amendment; prosecution cannot make an amendment unilaterally.

3) If indictment amended and D so requests, D must have not less than 10 days to prepare for trial on the amended indictment, and to delay in trial if necessary to provide this.

Front 21

Procedurally, how should a prosecutor get an indictment amended?

Back 21

1) State should file a motion for leave to amend;

2) D must be given adequate notice of the proposed amendment;

3) Trial judge holds a hearing and decides whether to order amendment made;

4) If authorized, the amendment must be made on the actual indictment

Front 22

For amended indictment, how many days does D get to prepare for trial?

Back 22

At least 10 days. Entitled to a continuance to have full preparation period. Must request this!

Front 23

Procedurally, how should a prosecutor get an indictment amended?

Back 23

1) State should file a motion for leave to amend;

2) D must be given adequate notice of the proposed amendment;

3) Trial judge holds a hearing and decides whether to order amendment made;

4) If authorized, the amendment must be made on the actual indictment

Front 24

For amended indictment, how many days does D get to prepare for trial?

Back 24

At least 10 days. Entitled to a continuance to have full preparation period. Must request this!