Defective Indictment Consequences In Texas
Prior to 1985 the Court of Criminal Appeals consistently held that substantive defects in the charging instrument failed to vest the trial court with jurisdiction. See Cook v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995); Studer v. State, 799 S.W.2d 263, 267 (Tex. Crim. App. 1990).
Article V, section 12(b), as interpreted in Studer, changed this. "From Studer it follows . . . a substantively defective indictment is sufficient to vest the trial court with jurisdiction." Cook, 902 S.W.2d at 477; see also Castro v. State, 970 S.W.2d 699, 700 (Tex. App.--Corpus Christi 1998, pet. ref'd); State v. Smith, 957 S.W.2d 163, 164-65 (Tex. App.--Austin 1997, no pet.).
An exception to the substance of an indictment is proper if it shows upon its face that the court trying the case has no jurisdiction thereof. See Tex. Code Crim. Proc. Ann. art. 27.08(4).
If the exception to an indictment is sustained, the indictment may be amended and the cause may proceed upon the amended indictment. See id. art. 28.09.
A matter of form or substance in an indictment may be amended at any time before the date of trial on the merits after notice to the defendant. See id. art. 28.10(a).
On request of the defendant, the court shall allow the defendant not less than ten days to respond to the amended indictment. See id. art. 28.10(c).
An accused cannot be tried and convicted for a felony except on indictment of a grand jury unless the accused waives that right. See Tex. Const. art. I, 10; Tex. Code Crim. Proc. Ann. arts. 1.05, 1.141 (West 1977)