Charging Instruments

• Author: Deandra M. Grant/Kimberly Griffin Tucker
• Pages: 637-656

16-1

CHAPTER 16

CHARGING INSTRUMENTS

I. Required Charging Instruments

§16:01 Three Charging Instruments: Complaint, Information, Indictment

§16:02 Generally, Information for Misdemeanor; Indictment for Felony

II. General Requirements for Valid Charging Instruments

A. Complaint Requirements

§16:10 Statutory Requirements

§16:11 The Complainant Must Be Credible

§16:12 The Affiant Need Not Have First-Hand Knowledge

§16:13 The Affidavit Must Be Formally Sworn To

§16:14 The Jurat Must Be Proper

B. Indictment and Information Requirements

§16:20 Constitutional Requirement: Indictment or Information

§16:21 Statutory Requirements for an Information

§16:22 Information Must Be Supported by Valid Complaint

§16:23 Complaining Witness Named in Information Need Not Have First-Hand Knowledge

§16:24 The Information Need Not Name a Complaining Witness

§16:25 Statutory Requirements for an Indictment

III. Charging the Elements of DWI

A. Specifics Not Required

§16:30 Statutory Elements of DWI

§16:31 “Intoxicated”

§16:32 “Operating”

§16:33 Measurement of the Breath, Blood, or Urine Concentration

§16:34 Road

§16:35 “Motor Vehicle”

§16:36 “Public Place”

§16:37 Enhancement Allegation That Prior Was Within 10 Years

§16:38 Open Container

§16:39 Immediate Possession

B. Specific Wording

§16:50 “Under the Influence” Is OK

§16:51 “Affiant had reason to believe” Is OK

§16:52 Failure to Specify County Is OK

Texas DWI Manual 16-2

IV. Defects in Charging Instruments

§16:60 Types of Defects: Form and Substance

§16:61 Law Changed in 1985

§16:62 Defect Waived if No Pretrial Objection

§16:63 Information Provides Jurisdiction Even if the Complaint Is Defective

§16:64 Indictment May Be Effective Even if Defective

V. Motion to Quash

A. General Points

§16:70 Defective Parts or Counts May Be Quashed

§16:71 Defect Waived if There Is No Objection

§16:72 Necessary Showing of Harm

§16:73 Review Subject to Harmless Error Analysis

B. Motion Requirements

§16:80 The Motion Must Be Timely

§16:81 The Motion Must Be in Writing

§16:82 The Motion Must Be Specific

§16:83 Oral Argument Must Conform to (and Not Expand on) Written Motion

C. Consequences of Motion

§16:90 Misdemeanor Is Discharged but Defendant May Be Prosecuted Again

§16:91 Felony Is Not Discharged and Defendant May Be Recommitted

§16:92 If Offense Will Be Barred by Limitation, Defendant Is Discharged

§16:93 State May Appeal

§16:94 Quash Order Terminates Jurisdiction

VI. Amending Indictment and Information

A. What Constitutes an Amendment

§16:100 An Amendment Is an Alteration That Affects the Substance

§16:101 Changing an Enhancement Paragraph Is an Amendment

§16:102 Abandonment: Changes Falling Short of Amendment

§16:103 Amending Underlying Complaint

B. Time for Amendment

1. Before Trial Commences

§16:110 Amendment Before Trial Commences Is Permitted

§16:111 Date the Trial Commences

§16:112 No Amendment for Different Charges or When Substantial Rights Prejudiced

§16:113 Amendment Before Information Quashed or Case Dismissed

§16:114 Amendment After an Exception Is Sustained

2. After Trial Commences

§16:120 Amendment After Trial Commences Only if Defendant Does Not Object

§16:121 Amendment on Day of Trial but Before Commencement

§16:122 Preserving Error

§16:123 Allowance of Amendment Over Defense Objection: Error Analysis Unclear

C. Mechanics of Amending

§16:130 Required Steps

§16:131 Effecting the Amendment

§16:132 Consequences of Omission of Required Step

§16:133 Right to Ten Days to Respond—Defense Request Required

VII. Lost Indictment

§16:140 Lost Indictment Does Not Affect Jurisdiction

§16:141 Procedure for Substitution for a Lost Indictment

VIII. Court’s Right to Dismiss an Indictment

§16:150 Generally Cannot Dismiss With Prejudice Without Consent

§16:151 When Dismissal Without the State’s Consent Is Authorized

§16:152 Possible Additional Basis for Dismissal Without Consent