What Is the Definition of ''Surplusage'' ?
What is the meaning of ''surplusage'' ?
Surplusage is unnecessary language not legally essential to constitute the offense alleged in the charging instrument. See Eastep v. State, 941 S.W.2d 130, 134 (Tex. Crim. App. 1997).
When the State deletes surplusage, the alteration is an "abandonment," not an amendment. Eastep, 941 S.W.2d at 134-35.
The notice requirements of article 28.10 of the code of criminal procedure apply only to amendments, not abandonments. Id. at 135.
Generally, allegations not essential to constitute the offense, which may be entirely omitted without affecting the charge against the defendant and without detriment to the indictment, are treated as surplusage. See id. at 134 (citing Whetstone v. State, 786 S.W.2d 361, 364 (Tex. Crim. App. 1990)).
In a capital murder case, the Texas Court of Criminal Appeals has consistently held the State is not required to allege the constituent elements of the aggravating offense. See Dinkins v. State, 894 S.W.2d 330, 338 (Tex. Crim. App. 1995).
However, there is an exception: while the name of the person at whom the underlying offense is directed may not be an essential element of the offense, it may still be a fact which is crucial to the accused's preparation of his defense to the main charge of capital murder. See King v. State, 594 S.W.2d 425, 426-27 (Tex. Crim. App. 1980).
The rule in King applies only when the criminal conduct constituting the aggravating feature of the offense may be directed at a person other than the ultimate victim of the capital murder. See.
Under those circumstances, the failure to allege the victim of the underlying felony becomes a fact crucial to an accused's preparation of a defense. See id.