We are preparing to try a "PCS w/ intent case" that includes 2 deadly weapons alleged in the conjunctive "shotgun and handgun". I find a plethora of cases on pleading in the conjunctive and charging in the disjunctive in general, but nothing on point to the special issue of deadly weapon. Anybody got a case?

Why would the law be any different for notice of DW? Plead in the disjunctive.

Read all of the cases cited in the 2007-2009 commentary in Laws of TX, and commentaries notwithstanding, the cases only address an indictment or information charging alternative methods in the disjuctive.

"disjunctive pleadings are proper"

Information clearly states "AND defendant . . . concentration of 0.08 . . . "

9 days to trial after a full year of continuances from a defense attorney smart enough to request the full 10 days to which his client is entitled if I amend, essentially giving him another continuance. Still, don't I have to amend or prove up all elements charged (no tox test)? If not, where is unambiguous support to argue abandonment, given the unfortunate AND language used in the information?

Green v. State, No. 05-02-01379-CR, 2003 WL 21962472 at *2 (Tex.App. - Dallas August 18, 2003, pet. ref'd)(not published)("The indictment charged appellant with committing aggravated robbery using a deadly weapon described as 'a razor and a box cutter.' The jury charge authorized the jury to convict appellant if it found he used 'a razor or a box cutter.'" Held: proper) (citing Kitchens); Arceneaux v. State,177 S.W.3d 928, 930 n.1 (Tex.App. - Houston [1st Dist.] 2005, pet. ref'd) (State not required to prove defendant "used 'and' exhibited a deadly weapon" despite conjunctive pleading in indictment).

Here's a case on the intoxicated issue:

Krusz v. State, 2002 WL 428668 at *2(Tex.App.-Dallas March 20, 2002, no pet.) (not published) ("Krusz was indicted with operating a vehicle in a public place while intoxicated, for not having normal use of his mental or physical faculties because of alcohol, and for having an alcohol concentration of 0.08 or more. Irrespective of whether the State indicted Krusz in the conjunctive ('and') or the disjunctive ('or'), the State is permitted to prove his guilt through one method or the other, as if Krusz had been indicted in the disjunctive. See Krebsbach v. State, 962 S.W.2d 728, 731-32 (Tex.App.-Amarillo 1998, pet. ref'd). The jury was properly charged in the disjunctive . . . .")

[This message was edited by david curl on 12-11-07 at .]

Couldn't you amend by abandoning a portion of the information, which would not give him grounds for a continuance since he has less to defend against?

From the Criminal Practice Guide: An abandonment, even though accomplished by an actual physical alteration to the face of the charging instrument, does not affect its substance and does not trigger the requirements of Tex. Code Crim. Proc. 28.10 [ Mayfield v. State, 117 S.W.3d 475 (Tex. App.-Texarkana 2003, pet. filed)- indictment change did not have to comply with Tex. Code Crim. Proc. 28.10 because deletion of surplusage was abandonment and not amendment].

Several situations have been recognized where altering the charging instrument constitutes an abandonment rather than amendment: (1) dismissal of counts or enhancement allegations [see Robinson v. State, 415 S.W.2d 180, 182 (Crim. App. 1967; Cazares v. State, 488 S.W.2d 455, 458 (Crim. App. 1972) ; but see Batiste v. State, 785 S.W.2d 432, 435-436 (Tex. App.-Corpus Christi 1990, pet. ref.)- amendment, not abandonment, to substitute different prior conviction for one pleaded in original indictment returned by grand jury]; (2) deletion of one or more of the alternate means by which an offense may be committed [see Moore v. State, 54 S.W.3d 529, 546 (Tex. App.-Fort Worth 2001, pet. ref.)- alteration merely deleting two of three alternate means of committing charged offense constitutes abandonment not amendment; Garcia v. State, 537 S.W.2d 930, 932 (Crim. App. 1976) ; Yates v. State, 766 S.W.2d 286, 290 (Tex. App.-Dallas 1989, pet. ref.)] ; (3) elimination of an allegation if the effect is merely to reduce the prosecution to a lesser included offense [see Leonard v. State, 481 S.W.2d 117, 118 (Crim. App. 1972) ; Stockton v. State, 756 S.W.2d 873, 875 (Tex. App.-Austin 1988) ; Horst v. State, 758 S.W.2d 311, 313 (Tex. App.-Amarillo 1988, pet. ref.)- alteration of indictment to delete allegations elevating murder to capital murder permitted over defendant's objection]; (4) deletion of surplusage [see Eastep v. State, 941 S.W.2d 130, 135 (Crim. App. 1997) ; White v. State, 890 S.W.2d 69, 72 (Crim. App. 1994)] . Thus, an indictment alleging theft of property with an aggregated value of $20,000 or more could be altered to delete several of the alleged appropriations because there remained appropriations with an aggregate value over $ 20,000 [Eastep v. State, 941 S.W.2d 130, 135 (Crim. App. 1997)] . When an indictment charges an individual with the appropriation of property in an aggregated amount pursuant to a continuing course of conduct, the state is not required to prove each individual appropriation and the evidence is sufficient if the state shows that the accused illegally appropriated enough property to meet the aggregated value alleged. Thus, the deletion of some alleged appropriations could be considered as either the abandonment of an alternate means of committing the offense, or as an abandonment of surplusage. Under either circumstance, the alteration would not affect the substance of the charging instrument and the alteration is an abandonment, not an amendment [ Eastep v. State, 941 S.W.2d 130, 135 (Crim. App. 1997) ; Hall v. State, 62 S.W.3d 918 (Tex. App.-Dallas 2001)- deletion of allegation that sexual conduct with child was ''without consent'' merely abandons surplusage because consent irrelevant with child-victim under 14]. Even if the amendment of the charging instrument constitutes a change in the allegations, rather than an abandonment, an alteration that does not comply with statutory requirements for an amendment of the charging instruments will not vitiate the adequacy of the charging instrument if the alteration relates to matter than can be considered ''surplusage.'' Thus, for example, an oral amendment changing the date of a prior offense alleged for enhancement that never resulted in an actual alteration of the written words of the indictment or an amended copy of the indictment did not invalidate the indictment because enhancement paragraphs are not essential to the validity of the indictment and comparable to surplusage for purposes of Article 28.10 [Johnson v. State, 214 S.W.3d 157, 158-159 (Tex. App.-Amarillo 2007)- because prior offenses alleged for enhancement need not be pleaded in indictment, they are equivalent to surplusage]. However, if the alteration in the charging instrument is an amendment violating Code of Criminal Procedure Section 28.10, rather than a permitted abandonment or alteration of surplusage, the violation of the statute is reversible error that is not subject to a harmless error analysis [see Eastep v. State, 941 S.W.2d 130, 135 (Tex. Crim. App. 1997) ; Brown v. State, 828 S.W.2d 762, 764 (Crim. App. 1991) ; Sodipo v. State, 815 S.W.2d 551, 555 (Tex. Crim. App. 1990)] .

[This message was edited by Ken Sparks on 12-11-07 at .]

Deadly weapon notice is not a required part of any indictment. The notice could come from any reasonable source, including a simple faxed letter. So, the standard legal statements about "amending" an indictment should not apply. Just update the notice with a letter and file a copy in the clerk's file. Done.

JB, I agree. I meant to post this response to a different question relating to amendments.