Ok - I have an indictment that fails to allege that the offense was committed "against the Peace and Dignity of the State."

Jury has been impaneled.

Yes, it is required under CCP 21.02.

But is it a defect of Form or Substance?

I have found case law going back to 1800 saying substance - but that predates the changes in the CCP, Flowers, and Studer.

Am I in "failure to object means its waived" _or_ is this in effect a non-indictment?

If it can't be waived (which appears to be the law still) am I barred by jeopardy?

The old cases on this seem to only order a dismissal of the case. I don't see a case that orders remand and acquittal.

Any help appreciated!

So long as the indictment states enough to identify an offense, you are good. A defendant must now object to problems in an indictment before trial or waive them forever.

Several years ago, the Texas Constitution was amended to avoid such problems as you face. The absence of those few words do not render an indictment void. Almost nothing does anymore.

So, if the defendant waited too long to object, he waived it. If he objected in time, the indictment can be amended by having the judge simply write in the words.

Waiting until a jury has been empaneled is too late for the defendant to object. That is just the sort of late whining stuff that the amendment to the Texas Constitution was designed to avoid. Carry on.

Whoo!

The defense didn't object - we actually saw it first and began to worry about reversal! Defense is aware of it now, however.

Now - Is there something I can point the Judge to that will keep her from throwing it out? She is a good and judge - just a bit more up on the civil side of law and not criminal.

How about the Code of Criminal Procedure:

Art. 1.14. WAIVER OF RIGHTS. (a) The defendant in a criminal prosecution for any offense may waive any rights secured him by law except that a defendant in a capital felony case may waive the right of trial by jury only in the manner permitted by Article 1.13(b) of this code.

(b) If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding. Nothing in this article prohibits a trial court from requiring that an objection to an indictment or information be made at an earlier time in compliance with Article 28.01 of this code.

Van Dusen, 744 S.W.2d 279 describes the purpose of the amendment. You might also use this language from Sanchez: "The right to be charged by an instrument that is free of defects, errors, and omissions is neither a "systemic" requirement nor a "waivable" right. By the requirement of an act of the legislature under specific authority granted by an amendment of the Constitution, any error in the charging instrument must be objected to in a timely (in this case, before trial) and specific manner, and any unobjected-to error in the instrument is not "fundamental." 120 S.W.3d 359, 367.

Thanks JB and Martin. The Judge agreed with both CCP 1.14(b) and the case law provided and went forward with the trail! Defendant got 10 years out of a possible 2-20 from the jury. (Enhanced by a second felony conviction)