Had a motion to quash on a burglary indictment today.

I had alleged the defendant "....attempted to commit or committed theft of property....."

Normally, we plead in the conjunctive and prove in the disjunctive, but for some reason I had it in my mind that pleading this in a burglary indictment was ok.

Anyone have any insight on this? I believe my judge will quash and I'll need to re-indict with AND instead of or.

John

I really thought this issue was laid to rest in Hunter, 576 S.W.2d at 399. But, maybe not. Since an attempt is always implied in an allegation of a completed offense, the argument seems even more ludicrous. See also Carlock, 8 S.W.3d at 720-1.

Might look at Francis v. State, 36 S.W.3d 121, 126 (Tex. Crim. App. 2000) (Womack, J., concurring)

"Instead the Criminal District Attorney alleged that the appellant touched "the breast and genitals" of the victim, in reliance on our venerable (and now unnecessary) rule that the trial court may charge the jury in the disjunctive even when the State pled in the conjunctive." Citing Hunter v. State, 576 S.W.2d 395 (Tex.Cr.App.1979) (holding that disjunctive pleadings were proper, and overruling all previous cases to the contrary). Accord State v. Winskey, 790 S.W.2d 641 (Tex.Cr.App.1990).