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43 Sw. L.J. 535 (1989-1990)
Criminal Procedure: Pretrial

handle is hein.journals/smulr43 and id is 545 raw text is: CRIMINAL PROCEDURE: PRETRIAL by Robert Udashen* HIS article details the major state and federal developments in the area of criminal pretrial procedure during the Survey period. Although nothing as dramatic occurred during the past Survey year as the demise of the Texas Speedy Trial Act,1 the courts issued a number of important decisions. A discussion of the most significant decisions follows. 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.2 Pursuant to the constitutional amendment, the legislature amended several provisions of the Code of Criminal Proce- dure. The various courts of appeals are now interpreting those amendments. One of the amendments enacted by the legislature requires a defendant to object, prior to trial, to defects of form or substance in a charging instru- ment.3 A defendant who fails to object prior to trial forfeits the right to complain about any such defect.4 During the Survey period, several courts of appeals interpreted this amendment to bar consideration of motions to quash filed on the day of trial.5 The more interesting question raised by this statute, however, concerns whether the statute applies to charging instru- ments that are insufficient to charge an offense. The correct answer to this question appears to be that expressed by the Dallas court of appeals in Studer v. State.6 The Studer court reasoned that if a charging instrument is * B.A., J.D., The University of Texas. Attorney at Law, Dallas, Texas. 1. Meshell v. State, 739 S.W.2d 246 (Tex. Crim. App. 1987) (held the Texas Speedy Trial Act to be unconstitutional because it violates the separation of powers doctrine in the Texas Constitution). 2. TEX. CONST. art. V, Sec. 12(b) (Vernon 1988) 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 informations, 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. 3. TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (Vernon Supp. 1989). 4. Id. 5. Van Dusen v. State, 744 S.W.2d 279 (Tex. App.-Dallas 1987, no pet.); Hill v. State, 750 S.W.2d 2, 3 (Tex. App.-Fort Worth 1988, pet. ref'd, untimely filed); Smith v. State, 754 S.W.2d 414, 416 (Tex. App.--Corpus Christi 1988, no pet.). 6. No. 05-87-01108-CR (Tex. App.-Dallas August 24, 1988, no pet.).

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