Cause No. __________

STATE OF TEXAS				§		IN THE _______________ COURT
						§
V.						§		COURT DESIGNATION
						§
***						§		_______________ COUNTY, TEXAS

DEFENDANT’S MOTION TO REQUIRE ELECTION BY STATE

TO THE HONORABLE JUDGE OF SAID COURT:

	COMES NOW ***, the Defendant in the above styled and numbered cause and files this his/her motion requesting the Court to require the State to elect the act upon which the State will rely in seeking the conviction of the Defendant and for cause would show the Court as follows:
	
I.
	The Defendant stands charged by a _____ count indictment which alleges the offense of _________________, pursuant to Section _______, Texas Penal Code.  The indictment alleges that the offense was committed “on or about” __________.
	
II.
	The defense has received notice from the State that it will offer evidence of other incidents of the same conduct alleged in the indictment by the Defendant alleged to have occurred on days other than [date alleged in indictment].
		
III.
	In Texas, the State may allege in the indictment than an offense occurred “on or about” a particular date but may prove that the conduct charged occurred any time on or before the date of presentment of the indictment within the statute of limitations.  Tex. Code Crim. Proc. art. 21.02, § (6); Ex parte Goodbread, 967 S.W.2d 859, 860 (Tex. Crim. App. 1998).
	
IV.
	The Defendant requests that prior to trial the State be required to elect [which count of the indictment], [which act of sexual conduct], [which act of ____________] and the specific date of such act, if any, that the State will rely upon in proving the allegations in its indictment.  

	The Defendant requests that he be given notice in writing prior to trial of [the count and] [the particular act] upon which the State will elect to proceed.  In the alternative, the Defendant moves the Court to require the State, at the close of its case in chief, to elect the particular act or conduct and the particular date thereof upon which the State relies upon for conviction.  In the alternative, the Defendant moves the Court, at the close of the evidence, to require the State to elect the particular date and incident of conduct that it relies upon in seeking the conviction of the Defendant.  

	In any event, the Defendant moves the Court to charge the jury that they must find beyond a reasonable doubt that the particular offense elected occurred on a particular date.
	
V.
	The Defendant would show the Court that if the State is not required to elect which act that it relies upon and the date of that act, then the Defendant is not given adequate notice of the charge against him/her and is not protected from being held twice in jeopardy for the same offense, in derogation of his rights under the Fifth, Sixth and Fourteenth Amendments of the United States 
Constitution, Article 1, Sections 10 and 19 of the Texas Constitution and Articles 1.04 and 1.05 of the Texas Code of Criminal Procedure.  Scoggan v. State, 799 S.W.2d 679 (Tex. Crim. App. 1990); O’Neal v. State, 746 S.W.2d 769 (Tex. Crim. App. 1988); Bates v. State, 305 S.W.2d 366, 368 (Tex. Crim. App. 1957); O’Clair v. State, 364 S.W.2d 375 (Tex. Crim. App. 1963); Yzaguirre v. State, 957 S.W.2d 38, 40 (Tex. Crim. App. 1997); Wilson v. State, 976 S.W.2d 254 (Tex. App.—Waco 1998).
	WHEREFORE, PREMISES CONSIDERED, the Defendant prays that the State be required 
to elect the particular act or conduct, if any, that it will rely upon in attempting to prove the allegations of the indictment, and that date should be charged to the jury.

Respectfully Submitted,

____________________________________
Attorney Name
State Bar Number
Address
City, State, Zip
Phone 
Fax

Attorney for Defendant
***

CERTIFICATE OF SERVICE

	This is to certify that a true and correct copy of the foregoing Defendant’s Motion to Require Election by State was served upon the attorney for the State on ____________________, 200___.

____________________________________
Attorney for Defendant

Cause No. __________

STATE OF TEXAS				§		IN THE _______________ COURT
						§
V.						§		COURT DESIGNATION
						§
***						§		_______________ COUNTY, TEXAS

ORDER

On this day came on to be heard the foregoing Defendant’s Motion to Require Election by State.  

The Court, having considered the motion and argument of counsel, it is hereby 

________________________.

Signed this ____ day of ________________, 20____.

____________________________________
JUDGE PRESIDING