About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

41 SW L.J. 517 (1987-1988)
Criminal Procedure: Pretrial

handle is hein.journals/smulr41 and id is 529 raw text is: CRIMINAL PROCEDURE: PRETRIAL Robert Udashen * This Article details the significant state and federal developments in the area of criminal pretrial procedure during the Survey period. I. CHARGING INSTRUMENTS In November of 1985 the Texas voters approved a constitutional amend- ment authorizing the legislature to establish new rules governing the use of indictments and informations. I In anticipation of the passage of this amend- ment, the legislature amended various provisions of the Code of Criminal Procedure. For example, the legislature amended the Code of Criminal Pro- cedure to require a defendant to object, prior to trial, to a defect of form or substance in a charging instrument.2 A defendant who fails to object at the correct time forfeits the right to complain about any such defect.3 If a de- fendant objects to a defect in the charging instrument, the state can amend the charging instrument and proceed to trial.4 The Code of Criminal Proce- dure, however, upon the defendant's request, allows ten days for the defend- ant to respond to the amendment.5 Apparently, the state can amend even substantive defects unless the amendment charges the defendant with an ad- ditional or different offense or prejudices the defendant's substantial rights.6 Further, the state may amend a charging instrument even if the defendant has not objected to it.7 The purpose of these changes in the Code of Criminal Procedure was to eliminate the reversal of criminal convictions because of perceived technical defects in charging instruments. The legislature, however, may have suc- ceeded only in substituting one form of litigation for another. Instead of appealing the denial of motions to quash because of notice defects in charg- ing instruments or raising questions of fundamental error on appeal because * B.A., J.D., The University of Texas. Attorney at Law, Udashen & Goldstucker, Dal- las, Texas. 1. TEx. CONST. art. V, § 12(b) (Vernon 1987) now states: An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense. An information is a writ- ten instrument presented to a court by an attorney for the State charging a per- son with the commission of an offense. The practice and procedures relating to the use of indictments and information, including their contents, amendment, sufficiency, and requisites, are as provided by law. The presentment of an indict- ment or information to a court invests the court with jurisdiction of the cause. 2. TEx. CODE CRIM. PROC. ANN. art. 1.14(b) (Vernon Supp. 1987). 3. Id. 4. Id. art. 28.09 (Vernon Pam. Supp. 1987). 5. Id. art. 28.10(a). 6. Id. art. 28.10(c). 7. Id. art. 28.10(b).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most