I have case where the defense has filed a motion to quash the indictment for endangering a child. The indictment alleges "intentionally, knowingly, recklessly, or criminal negligence" and alleges 2 possible acts the caregiver did as the manner and means, plus language that says "or by a manner and means unknown to the grand jury." Caregiver was alone with the kid and told several conflicting stories of what happened, so we don't want her to be able to take the stand and say, "Here's really how it happened." Any advice of how not to get this indictment quashed?

Jane,

Here are some cases that may help. The first are cases that set the rules for a motion to quash

State v. Boado 8 s.w.3d 15
Tezino v. State 765 s.w.2d 482

The other cases deal with manner and means unknown but are unpublished

State v. Harbour No 05-04-01210-CR; 2005 Tex. App. Lexis 6819 (August 23, 2005)

Robey v. State No C14-91-01029-CR; 1993 Tex. app. Lexis 2109 (July 29, 1993)

The short answer in all of these cases is that the indictment is a notice instrument that keeps the defendant from having to go to trial more than once for the same offense and since the defendant is probably the only person who knows exactly what happened, manner and means unknown is valid in a charging instrument.

Hope this helps.

Cite Persons, 714 S.W.2d at 477-8 for the judge. If that doesn't work, I give up.

Perhaps during the hearing you could ask the defense to stipulate as to how is was actually done, thereby obviating the need for alleging multiple manner and means.

After all, if they are so sure that the grand jury had sufficient evidence of the manner and means to prohibit the "unknown" allegation, then surely they should be willing to stipulate to the facts proven by such evidence.

"That a homicide or lesser grade of assault may be charged sufficiently by indictment or information which alleges that the means or instrument used was unknown to the grand jury or to the maker of the affidavit or information, and a better description of which means could not be obtained or given by the use of reasonable diligence, is settled. Mason v. State, 74 Tex. Cr. R. 256, 168 S. W. 115, Ann. Cas. 1917D, 1094. Such allegation merely puts upon the state the burden of meeting same by proof, but in no wise enables the accused to assert a right to acquittal upon proof that he knew and can testify to a named means or weapon used by him in committing such offense."

Daffan v. State
21 S.W.2d 301
Tex.Crim.App. 1928.