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44 Sw. L.J. 587 (1990-1991)
Criminal Procedure: Pretrial

handle is hein.journals/smulr44 and id is 599 raw text is: CRIMINAL PROCEDURE: PRETRIAL by Robert Udashen* SHS article details the major state and federal developments in the area of criminal pretrial procedure during the Survey period. No one rase stands out as dramatically as Meshell v. State 1 did in 1987. The courts, however, 'did issue a number of important decisions this year. 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 new constitutional provi- sion, the legislature amended several articles of the Code of Criminal Proce- dure. It now appears that the legislature failed to consider a number of issues when it drafted the constitutional and statutory amendments. One of the statutory amendments allows the state to amend matters of form or substance in charging instruments.3 The constitutionality of this statutory scheme was challenged in Cuesta v. State.4 The appellant in Cuesta claimed that the statute allowing for the amendment of charging in- struments is unconstitutional because it violates article II, section 1,5 the separation of powers provision of the Texas Constitution, and article I, sec- * B.A., J.D., The University of Texas. Attorney at Law, Dallas, Texas. 1. 739 S.W.2d 246, 257-58 (rex. Crim. App. 1987) (Texas Speedy Trial Act held to violate separation of powers doctrine in the Texas Constitution). 2. TEx. CONST. art. V, § 12(b) (1876, amended 1981, 1985) 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 procedure 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. 28.10 (Vernon 1989). 4. 763 S.W.2d 547 (Tex. App.-Amarillo 1988, no pet.). 5. TEx. CONST. art. II, § 1 states: The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to-wit: Those which are Legislative to one, those which are Execu- tive to another, and those which are Judicial to another; and no person, or col- lection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

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