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Copyright (c) 2002 Southern Methodist University
SMU Law Review

ARTICLE: Criminal Procedure: Pretrial, Trial and Appeal

Summer, 2002

55 SMU L. Rev. 837


M. Scott Barnard*, Edwin T. Aradi**, Kevin N. Barrett***, Jesse Z. Weiss****


THIS article will review the most significant decisions rendered during the last term by the Texas Court of Criminal Appeals and the United States Supreme Court. Both courts continue the trend of deciding the merits of the case if the error has been substantially preserved.


A. Indictment
In Santana v. State, the defendant appealed his conviction for Class A misdemeanor mischief arising out of his unpaid siphoning of electrical power from a utility line. 1 The court first held that, under Texas Penal Code 28.03,4 the State did not need to prove pecuniary loss as an element of Class A misdemeanor criminal mischief because the defendant's conduct was within the class described in section 28.03(b)(3)(B), i.e., tampering with a public utility. 2 The court also held that any variance between the information and the evidence at trial was not material or prejudicial. 3 The information charged that defendant diverted power from a meter and prevented power from being correctly registered. The defendant claimed that this varied from the evidence at trial because he could not have diverted power from the meter because it was broken and that he did not prevent power from being registered because he never actually tampered with the meter. The court held that the defendant did not sustain his burden of demonstrating surprise or prejudice because the information informed the defendant of the charge against him sufficiently to prepare for trial and would prevent appellant from being prosecuted again from diverting the electricity ...
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