We are having a discusion about counts and paragraphs. We've read the TDCAA article from a few months ago...and as predicted, there is mass confusion.
Is there a TDCAA book or some other resource that provides a list of some kind on when a general verdict is ok?
Or when manner and means are necessary in the indictment?
Or when you should charge counts vs. paragraphs?
I'm not aware of any TDCAA book that addresses the topic directly, but Vol 41 Texas Practice Series; Criminal Practice and Procedure by Profs Dix and Dawson has plenty of pages devoted to the topic of counts and paragraphs. Vol 43 addresses jury instructions.
These issues, with elections, can be a real brain teasers at times. Good luck
This is the sort of question that could be addressed by TDCAA's new appellate lawyer. A memo on that sort of thing could sure be helpful.
We've got the Bender series, "Texas Criminal Practice Guide". Sadly, I'm still confused.
With respect to the learned Judges on the CCA, I am not a grammar queen (as evidenced by my posts). So, I find their 8th grade grammar rule less than helpful.
It seems to me, and if I can make such a request to the appellate attorney at the TDCAA, that a list of offenses that can be charged disjunctively without requiring an election (murder if same victim) and a list of offenses that can't be charged disjunctively (sex assault of a child) would be very helpful.
But why not? So if readers of this thread would propose questions, raise concerns, or just make relevant comments--the topic would have even greater utility.
Manner and means are necessary to avoid a motion to quash alleging lack of notice.
A memo or article in the The Prosecutor would be helpful. I always have to scratch my head as to whether I should use paragraphs or counts in different situations.
Can charge disjunctively:
Murder if same victim--doesn't matter if charging as felony murder or murder of 2 people (provided the predicate murder is the same victim)
Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App. 2006)
Failure to Stop--failing to stop, or failing to return, or failing to remain are simply alternate methods of committing the same offense.
Huffman v. State, 267 S.W.3d 902 (Tex. Crim. App. 2008)
Assault--with some caveats
Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008)
Ken, I agree you have to allege manner and means. But I'd like to see where you can allege a boat load of manner and means, charge in the disjunctive, and not have a jury unanimity problem.
I'd also like to see the converse.
Much of count/paragraph procedure in State court is driven by custom and by technology. When I worked in Dallas County, 99% of cases were one offense/one indictment. That was the way it had always been done and the mainframe computer system did not have a way to track multiple counts. White collar cases were sometimes charged differently, and child abuse cases sometimes ended up as de-facto multi count indictments when they were not charged correctly in light of Francis.
In Collin County, we charge child abuse cases in multi-count indictments, but we are very flexible about dropping counts before, during, and after trial if there are proof or jeopardy problems. We follow a practice of one victim/one indictment though. Multi-count indictments are much less common for other cases, and we generally follow a practice of one offense/one indictment.
It would be helpful both to prosecutors and support staff to more clearly understand the use of paragraphs vs counts. This is not only important in the courtroom, but often comes up when discussing statistics and appropriate entry procedures of the indictment returns into the system.
Record keeping is a big issue for many jurisdictions though our county has never gone as far as Dallas, our prosecutors would not appreciate that limitation, but I can see how it would simplify record keeping as well as elec disposition reporting to DPS.
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