Okay, so Gollihar and Fuller have pretty much put the kibosh on appellate reversals where we have the wrong name in our indictment for our victim. But several times I have had trial prosecutors find the problem prior to charging the jury. What do you do then? Put the correct name of the victim in the jury charge? Take the victim's name out of the jury charge entirely (after all, it isn't required in the hypothetically correct charge). Track down the intake attorney and make them figure it out?

Great question from our Warranty division but I have no answer. I anxiously await the replies...

Oh, I forgot an option, put the wrong name in the jury charge and argue to the jury to convict the defendant because the evidence shows he is guilty. Maybe I should have posted a poll . . .

By the way, I LOVE my intake people.

Maybe I have missed the issue here but I have a case right now where the only real issue is the identification of the victim. My proof is computer images of a sexual assault of a child but the child says she may not have been awake at the time of the assault. I have alleged that one child...but of course the defendant says that it is not that child but in fact may be another unnamed/unknown child. One thing is clear...the victim is a very young female child.

I think you put the correct name in the jury charge. It just doesn't make sense to tell the jury one thing in the charge and the argue another thing to them at closing, i.e., "I know the jury charge says, "Suzy Q," and our evidence shows you, "Jane Doe," but don't worry about that, you can convict him anyway . . ."

My rule of thumb with jury charges is to give the jury something they can actually use and keep it simple.

John, seems to me this issue came up once with one our charges in Dallas. It wasn't the name of the victim, it was related to another element, but we found a case in some handy-dandy office notebook you had in your office that supported putting the correct info in the charge. Does this ring any bells?

Lisa, I know you can add elements of an offense that are missing from you indictment into a jury charge. Indeed, that is required. I think that is the law you were thinking of, and I think it was in a felony notebook that was distributed at one time. I think that was all pre-Golliar and Fuller.

Is not the answer in Gollihar? "A hypothetically correct charge need not incorporate allegations that give rise to immaterial variances." 46 S.W.3d at 256. I have also argued that the obligation of the trial judge is to charge the jury on the "law applicable to the case," even if the indictment is flawed, with this citation: See Sanchez v. State, 32 S.W.3d 687, 700 (Tex.App.- San Antonio 2000), rev'd on another ground, 120 S.W.3d 359 (Tex.Crim.App. 2003); Fowler v State, 126 S.W.3d 307, 309 (Tex.App.- Beaumont 2004, no pet.).

In other words, I too would vote for using the real name (or that proven at trial).

Okay, so can the defense challenge for cause a juror who says they won't acquit if the indictment says caused the death by shooting with a firearm but the proof is cause the death by stabbing with a knife? Seems to me that, after Gollihar, this is not a basis for a challenge for cause because a juror is not required to find this person not guilty. I think the defendant's remedy, if he is unfairly surprised by a material variance, would be a new trial, not an acquittal. Come on you folks in the sales department, are jurors still getting knocked out on this one?