I have a capital murder defendant who is indicted in two paragraphs. The first paragraph alleges she was hired to kill the victim, and the second paragraph alleges she hired another to do the killing. Factually I can prove both, so that's not a problem. (I would tell you the facts, but I would have to give A.P. time to get his banjo out first.) I've done some research, and I think I have paragraphs, since I have alleged two different ways to commit the offense of capital murder, but I'm looking for a second opinion. I have no desire to try this case a second time! (Actaully a fifth time, since this is the third of four co-defendants.)

No hurry...but I am in the middle of voir dire. :-)

Same offense, different manner and means equals paragraphs. Different offense eqauls different counts. But it should not matter what you call them, it is the function they perform and getting the charge correct that matters. I think you have paragraphs. Good luck.

JAS

Since you know you can prove both of them, abandon one of them before trial and eliminate any problems.

Leave the banjo in the case. Not the case in chief or the punishment case. The hardshell case.

Paragraphs, Stephanie. You have it right, two different manner and means for committing the same offense. If it were different offenses or the same offense at different times, then it would be counts.

I vote for the Banjo Man to accompany your closing. Make him dress nice and leave that Rachel Ray gimme cap at home. He does the theme from deliverance real nice. Real nice!

The answer to your question is determined by the allowable unit of prosecution. See Saenz v. State, 166 S.W.3d 270, 272 (Tex. Crim. App. 2005). Based on your facts, it appears that you would have a single crime with two alternative means to be alleged in separate paragraphs.

Contrary to the advice above, don't think about abandoning one of the paragraphs even if you think you can prove both.

According to the law, see Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991), you are allowed to charge alternative means of commiting a single offense in separate paragraphs. The jury simply returns a general verdict of guilty. They do not have to agree on the manner or means of guilt. Six jurors might pick one way of committing the offense while the other six pick the other. It doesn't matter since they only have to agree on guilt.

Dropping one of you paragraphs limits your options for the jury. But, perhaps more importantly, it limits the evidence to be considered in factual and legal sufficiency review on appeal. With two paragraphs and a general verdict of guilt, the verdict will be upheld if the evidence is sufficient to support either theory. You never know when a screwy juror, or appellate judge, is going to take issue with your evidence proving one of the means.

On the other hand, if they are not different means of committing a single crime but are instead are two separate offenses, you are entitled to two charges, two convictions and two separate punishments. The defendant can't have it both ways. Either you are entitled to alternative means and a general verdict of guilty or you are entitled to two convictions.

My advice to abandon one of the paragraphs has to do with several factors: the cumbersome nature of voir dire in a capital murder case and having to explain two differenct allegations time and time again, preparation of a jury charge that does not contain error, and having one "theory" of the case to present to the jury. The simpler you can make it, the better, especially in a capital case.