Help!

I have an ID theft case going to trial in August. The indictment reads as follows:

The Grand Jurors for the County of Hood, State of Texas, duly selected, impaneled, sworn, charged, and organized as such at the -------------, of the 355th Judicial District Court of Hood County, Texas, upon their oaths present in and to the Court that on or about the -----------------, and before the presentment of this indictment, in Hood County, Texas, PY, Defendant, did then and there with intent to harm or defraud another, obtain, possess or use more than 5 items, but less than 10 items of identifying information of another person without consent of the person whose identification information was obtained, possessed or used, and the person harmed and identifying information is as follows:
CF - Drivers license number, checking account number, bank routing number (Note – I have proof of 2 items of ID information & the victim)
TF - Drivers license number, checking account number, bank routing number ( Note – I have proof of 2 items of ID information & the victim)
YF- Name, date of birth, address, drivers license number ( Note – I have proof of 2 items of ID information , but cannot find the victim)
CJ – Name, date of birth, drivers license number (Note – I have proof of 2 items of ID information & the victim)
MN – Name, address, drivers license number (Note – I have proof of 2 items of ID information & the victim’s daughter who will testify that her mother never gave permission – the victim recently died)
EO – Drivers license number (Note – I have proof of 1 item of ID information & the victim)
AJR – Name (Note – I have proof of 1 item of ID information , but cannot find the victim)

• I have been unable to find victims YF and AJR. I have proof that defendant possessed the said information from each person; I just can’t prove it was without the consent of the two people I can’t find.

• I was planning not to read the two missing victims’ names at trial, thinking that it was not necessary because I have 5 < 10 items I can prove with the other victims.

• My boss says I can’t do that and I have to amend the indictment (which I don’t have time to do), with the amended indictment omitting the names and IDs of the two victims I cannot find.

• If I were to read all of the victims’ names and IDs as listed in the indictment (without amendment), would that be a problem at trial? The jury instructions should say that jurors have to find that the defendant possessed more than 5 but less than 10 items with the requisite intent.

• Does the jury have to unanimously agree on which 5 – 10 items she possessed without permission?

• On the other hand, I don’t want the jurors to get hung up and acquit this woman because of two people we didn’t put on the stand.

• The TDCAA Criminal Law book cites Estep v State, 941 S.W.2d 130 for the concept of surplussage. (This case is very helpful). However, Estep was overruled by Gollihar v. State 46 S.W.3d 243. (Gollihar is confusing and not as helpful, in my opinion.)

• I can find no cases on point under §32.51. I found In re D.J., 2005 WL 2404103, but it wasn’t helpful as it involved only one victim, not multiple victims.

• What would a correct jury charge look like in this case where I’m only required to prove 5 - <10 items, but my indictment alleges more?

I appreciate any advice you can give.

My reading of Gollihar is that failure to prove surplus language doesn't automatically result in a non-fatal variance. Just because it wasn't necessary language you still have to prove it because you plead it. But this is very different from removing the surplusage pre-trial. The bottom line is that an indictment's purpose is to give the defendant proper notice of the allegations, and to sufficiently and legally plead out the crime the defendant is charged with.

If you catch the surplusage pre-trial then you can abandon it. If you are only removing language from the indictment then the defense cannot claim they are being denied notice because you are only removing additional things that you would have had to prove. They still have notice of what you actually intend to prove, and they had that same notice before you abandoned the surplusage. And if the language you are removing is truly surplusage then even after it is removed your indictment should still properly plead your offense.

Even though Estep is overruled I still think its good law for the proposition that an abandonment is different from an amendment.