Our indictment language has been reading with the standard DWI language then ending with, ". . . and said vehicle was occupied by a passenger who was then and there younger than 15 years of age, namely, (child's name). We have a case where our officer did not get the child passenger's name. Is it sufficient to charge this without using the child's name? Seems to me like it would be sufficient, perhaps even preferable, to charge without a specific name. How are the rest of you handling these charges?

Obviously, the investigating officer should get the name at the time of the stop. Usually, the child is related in some way to the driver, and might be identified later. The issue will be whether an indictment with an unnamed child is sufficient to provide the requisite notice, since the name is not something which "is necessary to be proved". Cf. Boyette, 632 S.W.2d 915; DeVaughn, 749 S.W.2d 62. If you allege a single child was present, then the identity of the child would not seem to necessary to enable the accused to plead the judgment in bar of any prosecution for the same offense. Allege more than one child and that seems to become a problem. Seems to me the situation is not unlike Young, 419 S.W.2d 864; Vaughn, 530 S.W.2d 558; and Moallen, 699 S.W.2d 626; and similar cases. But, I am sure the defense will argue "the name of the complaining witness is a necessary requisite to a valid indictment". Lewis, 544 S.W.2d 430. Good luck and let us know how it turns out. Jeff Van Horn is great source of info on indictments. You might see what he thinks.

I name the child in the proposed indictment, but had the same situation you described when an officer failed to obtain the name of the child. In that indictment I alleged the crime without using the name of the child, and no motion to quash was ever filed. Sometimes we give the defense lawyers too much credit.

I would file it without the name. If it becomes an issue, misdemeanor DWI is a lesser included offense.

You should allege that the name of the child is unknown. But, hey, why can't we figure out who the child was?

None of our guys are used to this offense, if they are even aware of it, yet, so we have had to wait until they get us the name etc. of the child on every one we have indicted so far. We also want the dob, of course, but do not put that in the indictment.

So far we have managed to get the name everytime, but would probably go with FNU LNU or a combination thereof if necessary and then see what happens.

Perhaps I'm overanalyzing this, but I can forsee a potential proof problem, at least with the way our officers have been working these cases, if we are required to prove the specific identity of the child instead of just proving that there was a passenger under 15. We are just getting the name of the child, most of the time, but not a date of birth or any other identifying information. The kid's name is being received from asking the drunk driver, the kid or another passenger, with no other identifying information. At arraignment recently, one of our defendants informed our judge that we got the name of his kid passenger wrong in the indictment. Our trooper had either made a mistake in identification of the kid or made a mistake in his report. If we had taken that case to trial, we would have had a problem. What if the drunk driver just gives us the wrong name for the kid, either intentionally or unintentionally? Looks to me like our officers just need to work harder at getting the needed information. If any of the rest of you have any comments or advice on how to deal with these let me know.

Here is language from a recent case on the issue:

Rodriguez v. State

(Tex.App. Dist.1 04/29/2004)
George C. Hanks, Jr. Justice
NOS. 01-03-00853-CR, 01-03-00854-CR

OPINION

A jury found appellant, Roberto Rodriguez, guilty of two felony offenses-driving while intoxicated (DWI) and endangering a child-and found true an enhancement paragraph that a deadly weapon, a motor vehicle, was used in the commission of the offenses. The jury assessed punishment at confinement in prison for four years for the DWI and confinement in state jail for two years for the endangering a child. In four points of error, appellant argues that (1) the evidence is legally insufficient to support the jury's verdict of guilt for endangering a child because there is no evidence that the complainant alleged in the indictment was endangered or that appellant engaged in conduct that placed the complainant in imminent danger of bodily injury, and (2) the evidence was legally insufficient to support the jury's finding that appellant used or exhibited a deadly weapon, namely a motor vehicle, in the commission of the DWI and endangering a child offenses. We affirm.

Background

At 9 p.m. on October 18, 2002, Sherrie Nolan drove her car, which was occupied by her daughter and two of her daughter's friends, eastbound on FM 1960. Nolan pulled into the center turning lane in order to turn into a business parking lot. She looked at the oncoming traffic and believed that she had enough time to make the turn. Appellant drove his car, which was occupied by his son and two daughters, all under five years of age, westbound on FM 1960. Appellant, without slowing down, hit the rear passenger's side of Nolan's car.

Steven Colvin, who was in the parking lot near the accident, ran to appellant's car, which had stopped in the middle of the street. Colvin was concerned that appellant's car might ignite, so he pried the back door open to remove a screaming boy and moved him to a grassy median. Colvin testified that, after everyone had been removed from the cars, he saw appellant go back to the car and "started going underneath the seats and pulling things out of the seats." He saw appellant throw a beer can onto the grassy median.

Harris County Deputy Constable J. W. Redd interviewed appellant at the scene. Deputy Redd testified that, during the course of his interview, he "detected an odor of alcoholic beverage on his breath, his speech was slurred, his eyes were bloodshot." Appellant said that he had been drinking and had drunk two beers. Appellant failed the field sobriety tests that Deputy Redd administered at the scene. Appellant was arrested at the scene and refused the breath test.

Nolan, the three children in her car, and the three children in appellant's car were all transported from the accident in ambulances. Appellant was taken to the substation where he was processed for DWI.

Deputy Redd testified that, although Nolan was at fault for failing to yield the right of way making a left turn, he could not rule out appellant's alcohol consumption as a factor in the accident.

Legal Sufficiency

In four points of error, appellant argues that the evidence is legally insufficient (1) to support the jury's verdict of guilt for endangering a child because there is no evidence that the complainant alleged in the indictment was endangered or that appellant engaged in conduct that placed a child in imminent danger of bodily injury, and (2) to support the jury's finding that appellant used or exhibited a deadly weapon, namely a motor vehicle, in the commission of the DWI and endangering a child offenses.

Standard of Review

We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562.

Identity of Child

In point of error one, appellant contends that his indictment alleged that he had endangered "Alexander Rodriguez," but there is no evidence that "anyone named Alexander Rodriguez was ever at or near the scene of this accident, or was in a car driven by appellant while appellant was intoxicated."

A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment. Tex. Pen. Code Ann.� 22.041 (Vernon 2003).

Deputy Redd testified that, at the time of the accident, there were three "small children" in appellant's car, and that appellant told him that they were appellant's children. Yolanda Hernandez, appellant's wife, testified that she and appellant have three children, a son, Robert Alexander Rodriguez (not "Alexander Rodriguez" as was alleged in the indictment), and two daughters. She testified that appellant took her to work that day, and that, after Hernandez was dropped off at work, the children stayed in the car with appellant. She was notified later at work that there had been an accident.

The victim's name is not a statutory element of the criminal offense. Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002). State law does not define the victim's name as a substantive element of the offense by, for example, defining the offense as "endangerment of a child under 15 named Alexander Rodriguez." See id. at 253.

The prosecution's failure to prove the victim's name exactly as alleged in the indictment does not, therefore, make the evidence insufficient to support appellant's conviction. The evidence that appellant endangered the young victim by driving while intoxicated is sufficient because it constitutes proof of every fact necessary to constitute the crime charged of "endangerment to a child." See id.

We overrule point of error one.

Additonal rebuttal to the arguments likely to be raised on this issue is found in Yanes.