4 SW3D 228 - Rosales v. State

How this case has been cited

Cited by 60 later decisions — most recently March 2015 · most notably Gollihar v. State (2001), Coble v. State (2010)

59 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

WOMACK, J.,

¶1filed a concurring opinion in which MANSFIELD and KELLER, JJ., joined.

¶2I join the opinion of the Court.

¶3Today we broach the issue of reconsidering our treatment of the allegation in the indictment that the offense was committed by means “unknown to the grand jury.” See ante at 231. Our past requirement that this allegation be proved at trial is not justified. The only substantial rights of the defendant that could be denied by such an allegation are the rights to indictment by a grand jury in a felony case1 and to notice of the nature and cause of the accusation.2 These are requirements for the State’s pleading, which are appropriately raised and decided before trial.3 The remedy for the grand jury’s lack of diligence in discovering and alleging the means of committing the offense would be to sustain an exception to the indictment. The notion that this allegation creates an issue of fact to be proved to the trial jury is close to bizarre.

¶4. Tex. Const, art. I, § 10.

¶5. U.S. Const, amend. VI; Tex. Const, art. I, § 10.

¶6. See Tex.Code Crim. Proc. arts. 1.14(b) (objection to indictment must be raised before date of trial or right to object is waived and forfeited), 28.01, § 1(4) (pre-trial hearing shall be to determine exceptions to indictment), 28.01, § 2 (preliminary matters not raised seven days before pre-trial hearing will not thereafter be allowed, except for good cause shown), 28.03 (testimony may be obtained on matters involved in written pleadings).