Indictment for Conspiracy to Commit Capital Murder

Facts: (Names have been changed to protect the privacy of the individuals involved).

A Smith County Grand Jury indicted Jane Doe (Doe) for conspiracy to commit capital murder. The following is the pertinent passage of the indictment:

Jane Doe did then and there, with the intent that capital murder, a felony, be committed, agree with John Green and Jesse Smith and John Roe and Sally Roe that they would engage in conduct that would constitute said offense, and the said defendant performed an overt act in pursuance of said agreement, to-wit: that Jane Doe, communicated with John Green while John Green was confined in Smith County Jail and bonded Jesse Smith out of Smith County Jail and loaned her car to John Roe and advised John Roe to meet with Jesse Smith.

And the indictment does not name the victim of the offense.

Issue 1:

Does the indictment for conspiracy to commit capital murder need to include the elements of capital murder?

Short Answer:

No, but it is nevertheless insufficient to merely allege Doe conspired to commit capital murder. There are nine (9) separate ways in which a person can commit capital murder, and the indictment requires Doe to prepare nine (9) separate defenses to prove she did not conspire to commit capital murder. Because it requires Doe to prepare so many defenses, the indictment is not specific enough to provide Doe with adequate notice.

Discussion:

A person accused of a crime is entitled receive “precise notice” of facts which will enable him to adequately prepare for trial and will bar a future prosecution for the same offense for which he is accused. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004); King v. State, 594 S.W.2d 425, 427 (Tex. Crim. App. 1980). The instrument charging the person must give notice sufficient to allow him to prepare an adequate defense for the particular offense for which he stands charged, regardless of the facts he already knows. Lindsay v. State, 588 S.W.2d 570, 572 (Tex. Crim. App. 1979). Generally, if the language of an indictment tracks the language of the statute defining the offense, it is sufficient. Moff, 154 S.W.3d at 602. And when charging a person for conspiracy, the indictment does not need to specify the crime the conspiracy intended to commit with the same specificity necessary when charging for the underlying crime by itself. Carter v. State, 116 S.W.2d 371, 383 (Tex. Crim. App. 1937). But when tracking the language of the statute still requires the defendant to prepare to defend against multiple unknown theories of prosecution, the indictment must be more specific to provide the defendant with adequate notice. Id. at 602-603. In Moff, Moff, the Chief Appraiser of the Nueces County Appraisal District, was indicted for the misapplication of fiduciary property. Id. at 600. The indictment alleged the misapplication occurred “on or about and between January 1, 1993 and December 31, 1999.” Id. at 603. During that time, Moff had made numerous purchases, and the Court of Criminal Appeals held that even though the language of the indictment tracked the language of the statute, it was insufficient to provide Moff with adequate notice because he would be required to prepare a defense for every purchase he made in his capacity of Chief Appraiser for the seven-year period alleged in the indictment. Id.

Certainly, Doe’s indictment is not as broad as Moff’s, but it nevertheless lacks the necessary specificity to allow her to prepare an adequate defense. A person commits capital murder only if she murders an individual and there are additional, aggravating factors accompanying the murder. See Tex. Pen. Code Ann. § 19.03 (Vernon 2003 & Supp. 2006). And there are nine (9) aggravating factors which will elevate murder to capital murder. Id. Yet Doe’s indictment merely alleges she agreed to commit capital murder and fails to specify how her agreement was not merely to commit murder and requires Doe to prepare nine (9) separate defenses to prove she did not conspire to commit capital murder in addition to her defense that she did not agree to commit murder at all. And eight of these defenses will prove to be useless and will detract from the time Doe needs to spend preparing to defend against the actual aggravating factor which the State claims elevates the alleged agreement to conspiracy to commit capital murder. Therefore, the indictment lacks the specificity necessary to give Doe adequate notice to prepare for her defense, and the indictment must be quashed.

Conclusion:

An indictment for conspiracy to commit capital murder does not need to enumerate the specific elements of capital murder, but because there are nine aggravating factors, each sufficient to charge a person with capital murder, Doe must prepare nine separate defenses, eight of which will be useless. Therefore, the indictment must allege the aggravating factor to which Doe agreed that would prove she conspired to commit capital murder. The indictment does not specify any aggravating factor, and because it does not, the indictment must be quashed.

Issue 2:

Does the language in the indictment, “they would engage in conduct that would constitute said offense” provide sufficient notice to Doe of the act or acts which the State claims formed the basis of Doe’s alleged agreement?

Short Answer:

No. A person charged with conspiracy to commit capital murder must know the specific act or acts forming the basis of her agreement to engage in conduct that would constitute capital murder. That is, the indictment must allege the actions the person agreed to do to carry out the capital murder. The indictment does not allege any of the acts which Doe agreed to perform as part of the conspiracy. It does not even allege the name of the person whom those in the conspiracy allegedly agreed to murder.

Discussion:

A person accused of a crime is entitled receive “precise notice” of facts which will enable him to adequately prepare for trial and will bar a future prosecution for the same offense for which he is accused. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004); King v. State, 594 S.W.2d 425, 427 (Tex. Crim. App. 1980). The instrument charging the person must give notice sufficient to allow him to prepare an adequate defense for the particular offense for which he stands charged, regardless of the facts he already knows. Lindsay v. State, 588 S.W.2d 570, 572 (Tex. Crim. App. 1979). A person charged with conspiracy to commit capital murder must know the specific “act or acts” forming the basis of her agreement to “engage in conduct that would constitute [capital murder].” Id. That is, the indictment must allege the actions the person agreed to do to carry out the capital murder. Id. In Lindsay v. State, Lindsay was charged with conspiracy to commit capital murder. Id. at 571. The following is the pertinent part of the indictment charging her:

[Lindsay] did then and there with intent that a felony, to wit: Capital murder for remuneration and the promise of remuneration, be committed the said Judith Lindsay did then and there agree with Kenneth G. Davis, Jewelle Beard and Larry Whittaker that the said Judith Lindsay, Kenneth G. Davis, Jewelle Beard and Larry Whittaker Engage in conduct that would constitute said offense and said Kenneth G. Davis, performed an overt act in pursuance of said agreement, to wit: by shooting Larry Lindsay with a firearm. . . .

Id. The Court of Criminal Appeals held this indictment should have been quashed at trial because “[c]aptial murder for remuneration and the promise of remuneration” failed to give sufficient facts which formed the basis of Lindsay’s alleged agreement to “engage in conduct that would constitute said offense.” Id. at 572. Rather, the court held the indictment must have alleged either the role Lindsay agreed to occupy or how she agreed to be involved in the murder for remuneration. Id.

Like Lindsay, Doe faces charges of conspiracy to commit capital murder. And like Lindsay’s indictment, Doe’s indictment does not allege the role Doe agreed to occupy or how she agreed to be involved in the commission of capital murder. Instead, Doe’s indictment merely states she spoke with John Green in the Smith County Jail, bonded Jesse Smith out of Smith County Jail, loaned her car to John Roe, and advised John Roe to meet with Jesse Smith. The indictment does not allege Doe agreed to do perform the above as part of the alleged conspiracy. In fact, the indictment does not allege any of the acts which Doe agreed to perform as part of the conspiracy. It does not even allege the name of the person whom those in the conspiracy allegedly agreed to murder. Therefore, Doe’s indictment does not allege the actions she agreed to do to carry out the capital murder and must be quashed for failing to provide Doe with sufficient notice which will allow her to prepare a defense to disprove any agreement existed between her and her alleged coconspirators.

Conclusion:

The indictment charging Doe with conspiracy to commit capital murder does not allege the actions she agreed to do to carry out the capital murder. Because she does not know the details of her alleged agreement, Doe has no way to prepare a defense which would disprove such an agreement existed. Therefore, the indictment must be quashed.

Issue 3:

Does the indictment’s failure to name the victim of the capital murder fail to provide Doe sufficient notice of the offense for which she stands charged?

Short Answer:

Yes. The name of the victim of a crime must be alleged in the charging instrument and proved beyond a reasonable doubt at trial. Doe’s indictment fails to name the victim of the actual offense for which she stands charged. Because it does not name the victim of the capital murder, the indictment does not provide Doe with sufficient notice.

Discussion:

A person accused of a crime is entitled receive “precise notice” of facts which will enable him to adequately prepare for trial and will bar a future prosecution for the same offense for which he is accused. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004); King v. State, 594 S.W.2d 425, 427 (Tex. Crim. App. 1980). The instrument charging the person must give notice sufficient to allow him to prepare an adequate defense for the particular offense for which he stands charged, regardless of the facts he already knows. Lindsay v. State, 588 S.W.2d 570, 572 (Tex. Crim. App. 1979). And the name of the victim of a crime must be alleged in the charging instrument and proved beyond a reasonable doubt at trial. Williams v. State, 975 S.W.2d 375 (Tex. App.—Waco 1998, pet. ref’d) (citing Blakenship v. State, 785 S.W.2d 158, 159 (Tex. Crim. App. 1990). The means by which the State can satisfy this requirement are hardly strenuous: An indictment may use the initials of the victim’s name, or if the name of the victim is unknown, the instrument may allege it and provide a description of the victim. Tex. Crim. Proc. Ann. art. 21.07 (Vernon 2003). In King v. State, King was charged with capital murder. 594 S.W.2d at 426. The indictment charging King failed to name the victim of the aggravating offense, which elevated the murder for which he was accused to capital murder calling her merely “the complaintant.” Id. The Court of Criminal Appeals held the victim of the aggravating offense’s name is a “crucial fact” necessary for the preparation of an effective defense, and describing the victim of the aggravating offense as “the complaintant” was insufficient to name the victim and to give King adequate notice. Id. at 427. Therefore, the trial court erred when it refused to quash the indictment charging King of capital murder. Id.

And if the failure to name the victim of an aggravating offense was insufficient, then failure to name the actual or intended victim is also insufficient. Unlike King’s indictment, Doe’s indictment fails to name the victim of the actual offense for which she stands charged. Certainly, like the name of the victim of an aggravating offense, the name of the victim of the actual offense is also a crucial fact necessary for Doe to adequately prepare for trial and to give her notice sufficient to bar a future prosecution for the same conspiracy to commit capital murder. See King v. State, 594 S.W.2d 425, 427 (Tex. Crim. App. 1980); Williams v. State, 975 S.W.2d 375 (Tex. App.—Waco 1998, pet. ref’d). Therefore, Doe’s indictment does not provide her with sufficient notice because it fails to identify the victim of the conspiracy to commit capital murder.
And because Doe has not received sufficient notice, the indictment charging her with conspiracy to commit capital murder must be quashed.

Conclusion:

The name of the victim of a crime must be alleged in a charging instrument, but no victim is name in the indictment charging Doe of conspiracy to commit capital murder. Because no victim is name, the indictment fails to provide Doe with sufficient notice to prepare for her defense. Therefore, the indictment must be quashed.