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45 Sw. L.J. 279 (1991-1992)
Criminal Procedure: Pretrial

handle is hein.journals/smulr45 and id is 291 raw text is: CRIMINAL PROCEDURE: PRETRIAL by Robert N. Udashen * I. CHARGING INSTRUMENTS HIS article details the major state and federal developments in the area of criminal pretrial procedure during the Survey period. In November of 1985, the Texas voters approved a constitutional amendment authorizing the legislature to establish new rules governing the use of indictments and informations.' Pursuant to the new constitutional provision, the legislature amended several articles of the Code of Criminal Procedure. Those amendments created a number of problems for the courts during the Survey period. One of the statutory amendments enacted by the legislature requires a defendant to object, prior to trial, to defects of form or of substance in a charging instrument.2 A defendant who fails to object prior to trial forfeits the right to complain about any such defect.3 The purpose of this amend- ment seems to be the elimination of technical reversals of convictions due to errors in charging instruments. This statute raises the question of whether the statutory waiver rule ap- plies to charging instruments that are insufficient to charge an offense. Dur- ing the last Survey period the Dallas court of appeals held that a defect in a charging instrument relating to jurisdictional requirements cannot be waived.4 One can therefore challenge such a defect at any time.5 During this Survey period the Beaumont court of appeals reached the same result in Oliver v. State.6 That court held that an instrument so defective that it does not charge a person with the commission of an offense is not a charging instrument, and does not vest a court with jurisdiction.7 Such a defect can- not be waived.3 The court of criminal appeals, however, came to the opposite conclusion * B.A., J.D., The University of Texas. Attorney at Law, Dallas, Texas. 1. Tax. CONST. art. V, § 12(b) (1876, amended 1981, 1985). 2. TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (Vernon Supp. 1990). 3. Id. 4. Murk v. State, 775 S.W.2d 415, 416 (Tex. App.-Dallas 1989, pet. granted). 5. Id. 6. 787 S.W.2d 170 (Tex. App.-Beaumont 1990, pet. granted). 7. Id. at 172. 8. Id.

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