July-August 2014

Taking care with the charging instrument

Zack Wavrusa

Assistant County & ­District ­Attorney in Rusk County

Some problems prosecutors might face with this crucial portion of the criminal process and how to solve them

As prosecutors our jobs are hard enough. So many aspects of our job are out of our control, especially when we step in front of a jury. There is only so much we can do to anticipate and prepare for surprises, such as a domestic violence victim changing her story or the defense ambushing us with a previously unknown alibi witness or testifying expert.
    One of the few things within our control is the charging instrument, a crucial part of the criminal process we can often take for granted when dealing with a run-of-the-mill case. But overlooking the finer details of an indictment or an information can be recipe for disaster.
    Our office has had our fair share of charge-related issues recently. Dealing with these issues is mentally exhausting, especially when on the eve of trial (or in the middle of one). Nobody wants to deal with the failure to allege a culpable mental state when we should be considering what trial strategy and what theme is going to convince the jury that the defendant committed the crime alleged.
    This article isn’t an exhaustive list of charging related issues, and it isn’t a prosecutor’s ultimate guide to dealing with errors in the charging instrument. It is simply a summary of some of the problems our office has faced and how we dealt with those problems.

Fixing mistakes early
Huge caseloads and limited resources can result in some tasks not getting the time and attention they need. In our office, it seems we are always stretched a little thin around grand jury time. Every attorney is trying to corral officers and witnesses around the office on top of managing our court dockets. Errors in indictments around this time are more common than they should be.
    Mistakes in the charging instrument are easier to fix the earlier we catch them. I try to catch errors in the charging instrument by working on my jury charge as soon as possible. I’ve been fortunate enough to catch most charging errors early enough to keep myself from having an “oh you-know-what” moment with a jury in the box. Sitting down and putting the jury charge together forces a prosecutor to examine the indictment or information and helps put the elements of the offense in the forefront of one’s mind. Errors seem to stand out to me much clearer this way.
    If you catch the mistake in the indictment early, the easiest way to fix it is to file a motion to amend indictment. Texas Code of Criminal Procedure Art. 28.10 governs the process for amending indictments or informations. This article attempts to promote judicial efficiency by allowing prosecutors to amend indictments and informations without infringing on the defendant’s rights.
    There is quite a bit of caselaw out there on this issue. Old (now overruled) caselaw exemplified needless rigidity in a way that only lawyers are capable of. Originally, the Court of Criminal Appeals required the amendments to be physically written on the actual indictment or information, regardless of how clear the record was that both parties and the court were aware of changes to the charging instrument.1 Eventually, the CCA allowed for amendments to be made by substituting the original indictment/information with a copy reflecting the requested changes.2 In Riney¸ the court’s original copy of the indictment was never interlineated. Instead, amendments to the indictment were written by the State on a photocopy of the original, which was accepted by the court into its file. The CCA affirmed the defendant’s subsequent conviction because the interlineated photocopy was accepted into the court clerk’s file with the defendant’s knowledge and approval.
    Most recently, the court decided Perez v. State, which evaluates the defendant’s knowledge of and objections to the charging instrument. In Perez, the State made a motion to amend the indictment by eliminating six of 11 counts and re-ordering the remaining five in order of severity. It was clear from the record that the defendant had no objection to the amendments and waived his right to 10 days’ notice of the amendments. But on appeal, he argued that his conviction should be overturned because the indictment was not interlineated, nor was an amended photocopy of the indictment added to the trial court’s file.3 The CCA affirmed his conviction because the defendant had actual notice and the record was clear that he had no objections to the amendments.
    Post-Perez, the safer practice is still to interlineate and/or substitute a photocopy of the amended indictment in the court’s file, but if that doesn’t happen, there is authority to uphold the conviction if the record is clear that the defendant was aware of and had no objections to the amendment.

Curing defects
Not too long ago, I tried an assault against a public servant case. The case went from not on our radar to No. 1 on the trial docket in a hurry. Late on a Saturday night, before jury selection Monday morning, I was prepping it, and as I read over the indictment, my heart sank. The indictment did not list the required culpable mental state.
    The case was the only one lined up for the upcoming jury selection. All of the others had pled out or defense attorneys had gotten continuances. I had to figure out how to try the case without it blowing up on me. I was not hopeful the law would be able to bail me out on that one, but amazingly it did.
    Failing to allege an essential element of the offense in an indictment is a substantive defect.4 Examples of essential elements of offenses include failing to allege that a defendant possessed marijuana (rather than saying he possessed a “usable quantity”). Similarly, failure to describe the manner and means in which a defendant assaulted a family member would fall under this rule.
    Normally, when there is a defect in substance, the indictment is defective for failure to charge a purported offense.5 Game over, right? Not entirely. The Court of Criminal Appeals has said that an indictment doesn’t cease to be an indictment if it fails to allege a necessary element of the offense.6 The indictment must satisfy the defendant’s due process rights only in that it has to sufficiently provide him with notice of the allegations against him.
    Texas Code of Criminal Procedure Art. 1.14(b) requires the defendant to object to the charge’s inadequacies via motion to quash prior to the date the trial on the merits commences. Filing the motion to quash by itself is not enough. The motion must be “presented” to the court. Presentment means that the movant must make the trial judge aware of the motion by calling the judge’s attention to it in open court and requesting a ruling.7 Trial courts are free to require that an objection to an indictment or information be made at an earlier time in compliance with Art. 28.01 of the CCP. If the defendant does not meet the deadline for filing a motion to quash, he cannot raise the issue on appeal or in any other post-conviction proceeding.
    If the defendant does not object to errors in the indictment, then those errors can be “cured” in the jury charge. So long as the application paragraph of the jury charge includes the missing element and otherwise tracks the indictment, the conviction will be affirmed.
    In my particular case, the defendant did not make his motion to quash until the charging conference was held, after both the State and the defense had concluded their presentation of evidence. Because the motion wasn’t filed prior to trial, the defect was essentially cured when the application paragraph of the jury charge properly included the mens rea element.
    Similarly, in Flores v. State,8 the indictment charging the defendant with felony murder failed to allege the culpable mental state of the underlying offense of injury to a child. Prior to the trial on the merits, Flores moved to quash the indictment on the basis that the culpable mental state was not alleged in the indictment, which the trial court denied. The defendant was subsequently convicted of felony murder and sentenced to 40 years’ confinement. The appellate court found that it was error to have denied the defendant’s motion to quash the indictment. However, failure to grant the motion to quash was subject to a harm analysis because it was not a fundamental defect under the Bailey and Easter cases.9 In this case, the Eastland court found the error harmless because it “could not be said that it did not appear from the indictment that an offense against the law was committed by defendant.”

Trimming the fat
A few years ago, when I was newly licensed, I was set to try a possession of marijuana in a drug-free zone case to a jury. I had literally been licensed the week before, and another attorney had prepped the case for trial and handled voir dire. That attorney left the office abruptly and I ended up trying the case by myself. As I prepared, I saw that it was charged very aggressively. The defendant had been in a drug-free zone, but the facts didn’t indicate possession at a school, playground, or arcade. She had been driving to work and happened to be close to a school when her vehicle was pulled over for speeding. I discussed that fact with the other attorneys in the office, and the consensus was that we would abandon the drug-free zone allegation so as not to risk upsetting the jury panel.
    The abandonment of allegations in an indictment or information is appropriate when it: 1) abandons one or more alternative means of committing the offense; 2) reduces the charged offense to a lesser-included offense; or 3) eliminates surplusage.10

Deleting an alternate means of committing a charged offense is an “abandonment,” not an “amendment” of the charging instrument.11 When a statute provides multiple means for commission of an offense and those means are subject to the same punishment, the State may plead them conjunctively. However, the State is required to prove only one of the alleged means to support the conviction.12 Therefore, the State may abandon one or more of the alleged means. Abandonment of an alternate means does not change the alleged offense, it merely limits the State to the remaining means. Because defendants are already on notice of all of the alleged means of committing the offense, deletion of one does not affect the defendant’s notice or his ability to prepare his defense. Thus, the defendants’ due process rights are not violated.

Reduced charge
I see this most often in drug-free-zone cases (like the one I mentioned before) and DWIs. On more than one occasion I’ve had to abandon enhancement language that dropped a Class A DWI to a Class B when the certified judgment came back without a fingerprint or some other information used to identify the defendant.

Surplusage is defined as unnecessary words or allegations in an indictment that are not descriptive of what is legally essential to constitute the offense.13 The deletion of “surplusage” is not considered an amendment of the indictment and does not implicate Art. 28.10.14
    There used to be an exception to this rule of surplusage that said when an unnecessary allegation “is descriptive of that which is legally essential to charge a crime, the State must prove it as alleged though needlessly pleaded.”15 Thus, the Court of Criminal Appeals considered that “when an indictment describes a necessary person, place, or thing with unnecessary particularity, the State must prove all circumstances of the description.” The focus of this exception was whether the allegation at issue described an element of the offense with more particularity than necessary.16 This was called the Burrell exception. The Court of Criminal Appeals overruled the Burrell exception in Gollihar v. State.17 In Gollihar, the CCA said that the applicable test was one of materiality.

Material variance
A variance occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. In a variance situation, the State has proven the defendant guilty of a crime but has proven its commission in a manner that varies from the allegations in the charging instrument.18 The widely accepted rule is that a variance that is not prejudicial to a defendant’s “substantial rights” is immaterial.19
    We had such a case crop up recently. The defendant’s name was Roy Edward Smith, and Roy Edward Smith was a scary guy. While incarcerated in the Bradshaw State Jail Facility, he developed a sexual obsession with a member of the jail staff. He never engaged her directly there, but he terrorized her and people he wrongly assumed were her family members. At trial we would refer to her as the “Real McCoy” and the assumed family the “Wrong McCoys.”
    From inside the confines of his jail cell, Smith managed to make false police reports, turn off utilities, charge huge amounts of money to services like DirecTV, and eventually get himself charged with retaliation and tampering with a witness. The two offenses were tried together, and he was convicted of both and sentenced to 20 years’ confinement.
    On appeal, he took issue with the language of the tampering with a witness indictment. That indictment listed our victim (the Real McCoy) as the “complaining witness” in the retaliation case (as opposed to referring to her as a witness or prospective witness like in the statute). However, the victim listed in the indictment of the retaliation case was a Wrong McCoy. Because of this difference, Smith sought to have his conviction for tampering with a witness overturned because of insufficient evidence. We argued that there was no difference between “witness or prospective witness” and “complaining witness” because all of the facts pointed to Smith’s obsession with the Real McCoy—she was at the center of all of his criminal conduct. In the alternative, we argued that if there was a difference between the terms, any variance was immaterial, and the Court of Appeals in Texarkana recently agreed.20
    In determining whether a defendant’s substantial rights have been prejudiced, apply a two-prong analysis: 1) whether the indictment as written informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and 2) whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime.21 Allegations giving rise to immaterial variances may be disregarded in the hypothetically correct charge, but allegations giving rise to material variances must be included.22
When my boss first hired me, he told me I would learn more from losses than I would from victories. I’ve also found out that it is as easy to learn from other people’s mistakes as it is to learn from your own, so please take away this lesson from me: Don’t neglect the charging instrument. All it takes is a few extra minutes now, before trial, to save you hours later on appeal.


1 Ward v. State, 829 S.W.2d 787 (Tex. Crim. App. 1992).
2 Riney v. State, 28 S.W.3d 561, 563 (Tex. Crim. App. 2000).
3 Perez v. State, 2014 WL 1909500, No. PD-1380-13, — S.W.3d —- (Tex. Crim. App. May 14, 2014).
4 Pomier v. State, 326 S.W.3d 373 (Tex. App.— Houston [14th Dist.] 2010, no pet.).
5 See Jackson v. State, 718 S.W.2d 724, 725 n. 1 (Tex. Crim. App. 1986).
6 Studer v. State, 799 S.W.2d 263, 271 (Tex. Crim. App. 1990).
7 Guevara v. State, 985 S.W.2d 590, 592 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).
8 102 S.W.3d 328 (Tex. App.—Eastland 2003, pet. ref’d)
9 Bailey v. State, 600 S.W.2d 331 (Tex. Crim. App. 1980); Ex parte Easter, 615 S.W.2d 719 (Tex. Crim. App. 1981).
10 Eastep v. State, 941 S.W.2d 130, 135 (Tex. Crim. App. 1997), overruled on other grounds by Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000).
11 Id. at 133.
12 See id. (citing Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991)).
13 See Brown v. State, 843 S.W.2d 709, 713–14 (Tex. App.—Dallas 1992, pet. ref’d).
14 Hall v. State, 62 S.W.3d 918, 919 (Tex. App.— Dallas 2001, pet. ref’d).
15 See Eastep, 941 S.W.2d at 134 n. 7.
16 See Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim. App. 2000).
17 Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001).
18 Id.
19 Id. at 247-48 (referencing United States v. Sprick, 233 F.3d 845 (5th Cir. 2000).
20 Smith v. State, 06-13-0188CR (Tex. App.—Texarkana 2014, not designated for publication).
21 United States v. Sprick, 233 F.3d 845 (5th Cir. 2000).
22 Gollihar, 46 S.W.3d at 257.