August 26, 2004, 18:13
ICHName of Victim on Indictment
Need Help...We have a murder case set for trial. The indictment alleges our victim's name with "Jr." after it. Come to find out, he is not a junior, his dad is and our victim is just named after dad (It's dad's first name but not middle). Any solutions? Is there a problem? Help!!
August 26, 2004, 18:41
MerritLook at Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (immaterial variance review applies to wrong name for victim claim);
Williams v. State, Nos. 05-00-00100-CR, 05-00-00101-CR, 2001 WL 122078 (Tex.App. -- Dallas Feb. 14, 2001, no pet.) (not published) ("appellant does not complain that the indictment fails to charge an offense; rather, he complains the name of the complainant is incorrect. Appellant did not object to the indictment on this basis prior to trial. Accordingly, any complaint is waived.
To the extent appellant complains the indictment materially varies from the proof at trial, his complaint is without merit. It is well-established that the suffix "Jr." or "Sr." does not form a part of a legal name and may be rejected as surplusage. Cherry v.. State, 447 S.W.2d 154, 156 (Tex.Crim.App.1969). Its addition or omission is immaterial in criminal proceedings. Smith v. State, 435 S.W.2d 526, 527 (Tex.Crim.App.1969).")
August 28, 2004, 09:39
BLeonardMove to strike the offending appellation. The defense cannot honestly maintain that they are surprised or harmed.
August 28, 2004, 10:13
J.L.H.The defendant was asked his name at his arraignment and possibly other proceedings. You might get transcripts of those and see how he responded.
John
August 30, 2004, 15:13
Ken SparksFile a motion to amend the indictment pursuant to CCP Art. 28.10 and 28.11.