Question on indictments. I have an indictment not yet presented to Grand Jury and want to make sure the form is right. The indictment alleges 2 Counts which are the same occurrence, I just alleged the crime two different ways. Count I is Burg. of Hab. with Intent to Commit Felony of Retaliation and Count II is Retaliation. Now, I have an enhancement paragraph for a previous conviction for Poss. of CS. Does that enhancement paragraph have to follow EACH count as follows: Count I, then Enhancement Paragraph Count II, then Enhancement Paragraph OR can the Enhancement Paragraph be only at the end after Count II and still apply to both counts as follows: Count I Count II Enhancement Paragraph. Please point to any authority so I may file it away in my office.
The enhancement paragraphs do not even have to appear in an indictment and are not subject to approval by a grand jury. See Brooks v. State, 957 SW2d 30.
The law only requires that you give the defendant some form of notice of his criminal history, so he will know what punishment he faces if convicted. Of course, the better practice is to put the notice in the indictment, and you may put the enhancement paragraphs after all offense allegations.
The better practice also is to put any notice regarding a deadly weapon finding in the indictment, but it, too, may be delivered in some other form.
You may also want to consider whether you are merely alleging two alternative theories of the same offense or two separate offenses. Proof of the completed retaliation would be admissible to prove the entry with intent to commit (whether it is separately alleged or not). While there would not appear to be a joinder problem if you are alleging two offenses, I question whether you could obtain separate convictions for burglary and retaliation. I think there may be some caselaw that says you don't convict for both burglary and completed theft, just one or the other. While technically the retaliation is not a lesser included of the burglary, I would look closely at the jeopardy cases.
You can get two convictions for burglary with intent to commit retaliation and retaliation. It is more questionable for burglary and committed retaliation and retaliation.
