St. Mary's Law Journal


In the prosecution of a criminal case in Texas, the State’s primary pleading is an indictment or information. In an indictment or information, there are two basic rules for the charging of an offense. First, the defendant must be given adequate notice to prepare a defense and to plead the judgment from the trial of the case in bar to a subsequent prosecution for the same offense. Second, the State is not required to plead evidentiary matters. The simplicity of these rules exists more in their statement than in their application because circumstances exist which require the State to plead evidentiary matters in order to provide the defendant with adequate notice. In fact, the Texas Court of Criminal Appeals has held the State must plead matters which are evidentiary in nature. The general rule that an indictment or information need not plead evidentiary matters is based on sound legal and practical considerations. First, the function of an indictment and information is to charge an offense. Second, requiring an indictment or information to plead evidentiary matters “would make the indictment [or information] as long as the evidence.” There are only two constitutional and statutory exceptions to this rule. The defendant must be given adequate notice to be able to prepare a defense, and the defendant is statutorily entitled to adequate notice to be able to plead the judgment in bar to a subsequent prosecution for the same offense. Consequently, an indictment or information must plead descriptive evidentiary matters only when an element of the offense consists of the defendant’s conduct and there are alternative factual or statutory means of methods by which the conduct can be committed. Although the Court of Criminal Appeals articulates this rule with consistency, it has created a conundrum.


St. Mary's University School of Law