Deleting Language from a Criminal Indictment In Texas
Texas Code of Criminal Procedure, Article 28.10(a) provides:
(a) After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. on the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information. TEX. CODE CRIM. PROC. ANN. art 28.10(a) (Vernon 1989).
A charging instrument may be altered to delete language which is not descriptive of what is legally essential to the validity of the indictment. Eastep v. State, 941 S.W.2d 130, 134 (Tex. Crim. App. 1997).
In such a situation the alteration is an "abandonment," not an amendment and does not invoke the requirements of article 28.10 of the code of criminal procedure. Id. at 135.
Abandonment of surplusage does not constitute an amendment to the indictment. Id.
Surplusage is unnecessary language not legally essential to constitute the offense alleged in the indictment. Id. at 134.
The word "by" is surplusage because it is unnecessary language not legally essential to constitute the charged offense. See id. at 551.
Because the trial court deleted surplusage from the indictment the alteration was an abandonment rather than an amendment and did not invoke the requirements of article 28.10(a).