NO.

THE STATE OF TEXAS	§	         IN THE _______________ COURT
§
V.	§	         OF
§
JOHN DOE	§	         ____________ COUNTY, TEXAS
	
BRIEF IN SUPPORT OF DEFENDANT'S
MOTION TO QUASH INDICTMENT

TO THE HONORABLE JUDGE OF SAID COURT:

	COMES NOW the Defendant, JOHN DOE, by and through his counsel of record, ___________, and pursuant to the Fifth and Sixth Amendments of the Constitution of the United States, Article I, Section 10 of the Texas Constitution, and Chapter 21 of the Texas Code of Criminal Procedure, presents this his Brief in Support of Defendant's Motion to Quash the Indictment, and would respectfully show this Honorable Court the following:
I.
	On October 26, 2001, the Defendant was involved in a fatal automobile accident.  The Defendant was taken to University Medical Center for treatment.  An investigating officer met the Defendant as he was being taken for a cat scan, read him the DIC-24 statutory warnings, and requested a blood sample.  The Defendant refused at first, but gave a sample after being told by the officer that the law mandated the sample.  The Defendant was not arrested, and he was released pending the filing of charges.  The Defendant was originally indicted on February 27, 2003, for the offense of Intoxication Manslaughter.  The Defendant was re-indicted on March 11, 2003 for the offense of Manslaughter. 
	II.
	The amended indictment, which alleges that the Defendant recklessly caused the death of the decedent by driving or operating a motor vehicle “after consuming alcohol” is too vague, indefinite and uncertain to charge an offense. 
	The Defendant was indicted for manslaughter (Tex. Penal Code Ann. § 19.04 (West 1994)).  A person commits the offense of manslaughter if he recklessly causes the death of an individual. Tex. Penal Code Ann. § 19.04(a) (West 1994). Article 21.15 of the Code of Criminal Procedure provides that whenever recklessness is an element of an offense, the indictment must allege with reasonable certainty the act or acts relied upon to constitute recklessness.  An indictment alleging that the Defendant drove and operated a motor vehicle “after consuming alcohol” does not allege any act of recklessness with reasonable certainty, and thereby fails to state an offense.  An indictment that does not charge an offense is fundamentally defective. Ex parte County, 577 S.W.2d 260, 261 (Tex.Crim.App. 1979) (panel op.).
	In Wilson v. State, 123 Tex.Crim. 415, 59 S.W.2d 399 (1933), the indictment alleged that the appellant drove and operated a motor vehicle while he “was then and there to some extent under the influence of intoxicating liquor.” Id., 59 S.W.2d at 399 (emphasis added). The indictment tracked the language of the statute, art. 802 of the 1925 Penal Code, which purported to criminalize the conduct of “[a]ny person who drives or operates an automobile * * * upon any public road or highway in this State while such person is intoxicated or in any degree under the influence of intoxicating liquor.” Id. (emphasis in opinion). Nevertheless, the Court of Criminal Appeals held that the indictment did not charge an offense, and reversed the judgment and ordered the prosecution dismissed. Id., 59 S.W.2d at 400.
	The case of Herwig v. State, 138 Tex.Crim. 645, 138 S.W.2d 549 (1940), is even more closely on point. The Herwig indictment, again tracking the statutory language of art. 802, alleged in two counts that the defendant (1) drove and operated an automobile while intoxicated, and (2) that she “did then and there unlawfully, while in a degree under the influence of intoxicating liquor, drive and operate an automobile ….” Id., 138 S.W.2d at 550 (emphasis in opinion). The jury acquitted the defendant of driving while intoxicated, but convicted her of driving while in a degree under the influence of intoxicating liquor.
	If an indictment alleging that the defendant is “to some extent under the influence of intoxicating liquor,” or in a degree under the influence of intoxicating liquor is too vague, indefinite and uncertain to charge an offense, likewise the language at issue here, that the Defendant had operated a motor vehicle “after consuming alcohol” is equally vague, indefinite and uncertain. The defective allegation does not charge an offense because it is impermissibly vague. An allegation in an indictment that is impermissibly vague is void for vagueness. See, e.g., Collins v. State, 890 S.W.2d 893, 896–98 (Tex.App.—El Paso 1994, no pet.).
IV.

	WHEREFORE, PREMISES CONSIDERED, Defendant prays this Court quash the indictment pursuant to Fifth and Sixth Amendments of the Constitution of the United States, Article I, Section 10 of the Texas Constitution, and Chapter 21 of the Texas Code of Criminal Procedure
Respectfully submitted,

CERTIFICATE OF SERVICE
	
	This is to certify that on ,  ______, 200__, a copy of Defendant’s Brief in Support of Defendant’s Motion to Quash Indictment was delivered to the Criminal District Attorney of _____________ County, Texas.

___________________________________________
Chuck Lanehart