Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:The appellee was charged with intentional, knowing and reckless misapplication of fiduciary property. Texas Penal Code 32.45(b). The indictment submitted by the district attorney failed to specify the transaction or transactions involved. The appellee filed a motion to quash the indictment, which was granted by the trial court. The trial court’s order directed the state to re-file the indictment, specifying which purchases were alleged to be unauthorized. The state appealed, and the 14th Court of Appeals reversed the trial court’s order quashing the indictment. The appellee filed a petition for discretionary review, asserting that the trial court had the discretion to quash the indictment and to require more specificity. The court granted review to determine “[w]hether a trial court abuses its discretion when it requires more specificity in an indictment alleging recklessness and spanning seven years which fails to identify which of the countless transactions during that time span the State may rely on for conviction.” HOLDING:Affirmed. After a de novo review, the court concludes that the 14th Court erred by reversing the trial court’s order, because the accused was deprived of the notice required to prepare an adequate defense. The indictment in this case alleges that illegal purchases occurred “on or about and between January 1, 1993 and December 31, 1999.” In his capacity as chief appraiser of the Nueces County Appraisal District, the appellee used money and credit cards to make numerous purchases of equipment and supplies during the time period alleged in the indictment. Although the indictment correctly tracks the language of the statute, in this type of case, that alone is not sufficient to fulfill the constitutional and statutory requirements of specificity. It is unreasonable to require the defendant to gather evidence and prepare a defense for each of the credit card and cash transactions he made during the seven-year time frame in the indictment. Thus, additional information that is reasonably necessary for the defense to prepare its case must be provided. This is not to say that the state must lay out its case in the indictment, only that the defendant must be informed of the specific transactions that allegedly violate the statute. The court recently stated in Kellar v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003), that “this due process requirement may be satisfied by means other than the language in the charging instrument.” In Kellar, prior to trial, the state filed an itemized list containing the dates, check numbers and amounts of each transaction, which provided the defendant with sufficient notice to prepare his defense. This is not meant to imply that the notice requirement is always satisfied by discovery. For example, the state may not conduct “trial by ambush,” in which the information necessary to provide notice is buried somewhere in a mass of documents turned over to the defendant. The trial court must determine whether the notice given to the defendant is sufficient and should quash the indictment if the notice is not specific enough. Therefore, the trial court did not err in quashing the indictment because the state failed to give the appellee sufficiently specific notice of the particular act or acts with which he is charged. OPINION:Meyers, J., delivered the opinion of the court, in which Keller, P.J., and Womack, Johnson, Keasler, Hervey, Holcomb, and Cochran, JJ., join. Price, J., concurs.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.