No.

366-82211-10

STATE OF TEXAS § IN HE DISTRICT COURT

- v. § CO .LIN COUNTY, TEXAS

1 _

DAVIDCARY § 366' H JUDICIAL DISTRICT

Motion to Quash Indictment

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW DAVID CARY, Defendant herein, by d through counsel, and

respectfully moves this Honorable Court to quash the indictment in the above captioned

cause, and in support thereof respectfully shows this Honorable Court the following:

1.

On October 14, 2010. the State obtained its seven-count indictment in this cause.

The indictment purports to charge Engazinz in Orvanized Crimi al Activity in Count I,

and Bribery in each of Counts II through VII. To that indictment the Defendant has

pleaded "not guilty."

II.

An indictment must allege, in plain and intelligible langurge, all the facts and

circumstances necessary to establish all the material elements of Ithe offense charged.

Bynun v. State, 767 S.W.2d 769, 779 (Tex.Cr.App. 1989); Zweig v. State, 171 S.W. 747,

753 (Tex.Cr.App. 1914). An indictment must also convey sufficient notice to allow the

accused to prepare his defense. State v. Mays, 967 S.W.2d 404, 106 (Tex.Cr.App. 1998).

Additionally, an indictment must allege on its face facts necessary to bar a subsequent
'7... 4':';'~~:i'~ ••. <tI

prosecuti~JtOr~1 sam,~~~ii~risl Terry v. State, 471 S.W.2d 84~', 852 (Tex.Cr.App.

i: •.. :-; ~- ••.••.:.:i~71 ,J,:. '..... ~.~r
1971). 201/ ~pn .•
J t 1\ i:;

1
 Defendant asserts that the indictment fails to state any criminal offense; fails to

provide Defendant proper notice of what he is alleged to have d one constituting any

criminal acts; fails to allege the facts sufficient to permit the fo illation of a defense, and

fails to allege the facts sufficient to bar subsequent prosecution or the same alleged acts.

III.

A person commits the offense of engaging in organized ;riminal activity if, with

the intent to establish, maintain, or participate in a combination or in the profits of a

combination, he commits or conspires to commit a listed predict te offense. Penal Code §

71.02(a); see Nguyen v. State, 1 S.W.3d 694, 695 (Tex.Cr.App. 1999).

A motion to quash should be granted only when the Ian uage concerning
the defendant's conduct is so vague or indefinite as to de lilYhim effective
notice of the acts he allegedly committed . .DeVaughn v. ,Jtate, 749 S.W.2d
62,67 (Tex.Crim.App. 1988). In an organized crime case, the State need
not allege the manner and means by which the underlying theft was
committed. Crum v. State, 946 S.W.2d 349,359 (Tex. A p.-Houston [14th
Dist.] 1997, pet ref'd); see also Zucario v. State, 658 S.W·.2d 835,837
(Tex.App.-Houston [1st Dist.] 1983, no pet.). Unless a fact is essential to
notice, the indictment need not plead the evidence relied upon by the
State. Livingston v. State, 739 S.W.2d 311, 321 (Tex.Critn.App. 1987). An
indictment that tracks the language of the statute is legaWy sufficient and
the State need not allege facts that are merely evidenti in nature. Id.
Here the indictment tracked the language of section 71.0~; therefore, the
trial court did not err in refusing to quash the indictments.

Jarnigan v. State, 57 S.W.3d 76,92 (Tex.App. - Houston [14th] 2001).

Subject to rare exceptions, an indictment which tracks th ~language of the penal

statute will be legally sufficient and the State need not allege fac ts that are merely

evidentiary in nature. Moreno v. State, 721 S.W.2d 295 (Tex.C .App. 1986); Beck v.

State, 682 S.W.2d 550 (Tex.Cr.App. 1985). The indictment will be read as a whole in

2
determining whether it sufficiently charges an offense. Dennis v. State, 647 S.W.2d 275,

279 (Tex.Cr.App. 1983); Church v. State, 552 S.W.2d 138, 14 (Tex.Cr.App. 1977).

A motion to quash should be granted where the languag ~concerning the

defendant's conduct is so vague or indefinite as to deny the defendant effective notice of

the acts he allegedly committed. Thomas v. State, 621 S.W.2d 158, 163 (Tex.Cr.App.

1981); Lindsay v. State, 588 S.W.2d 570 (Tex.Cr.App. 1979); Cruise v. State, 587

S.W.2d 403 (Tex.Cr.App. 1979); Haecker v. State, 571 S.W.2d 920 (Tex.Cr.App. 1978);

Amaya v. State, 551 S.W.2d 385 (Tex.Cr.App. 1977). In the fare of timely motion to

quash an indictment, the indictment must allege on its face the facts necessary to show

that the offense was committed, to bar a subsequent prosecution for the same offense, and

to give the defendant notice of precisely what he is charged wit. American Plant Food

v. State, 508 S.W.2d 598, 603 (Tex.Cr.App. 1974), citing, Ter I v. State, 471 S.W.2d
848,852 (Tex.Cr.App. 1971). Where the accused has raised the claim of inadequate

notice by means of a timely motion to quash, the Court of Criminal Appeals has held:

The general rule is that a motion to quash will be allowed if the facts
sought are essential to give notice. However, unless a fa t is essential, the
indictment need not plead evidence relied on by the State. Smith v. State,
502 S.W.2d 133 (Tex.Cr.App. 1973); Cameron v. State, ~01 S.W.2d 809
(Tex.Cr.App. 1966). Moreover, when a term is defmed in the statutes, it
need not be further alleged in the indictment. American. lant Food
Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App. 197 l); May v. State,
618 S.W.2d 333 (Tex.Cr.App. 1981). '

Thomas v. State, supra at 161 (Opinion on State's Motion for Rehearing).

If an indictment contains allegations regarding all the ne1essary elements of the

offense, so that it is not fundamentally defective and void, and if a defendant requests

additional factual information upon which to prepare a defense, a defect of form has been

raised and the State may properly amend the indictment to reflect the requested

3
information. Janecka v. State, 739 S.W.2d 813, 819 (Tex.Cr.App. 1987), overruling in

part Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App. 1980) (Opinion on State's Motion

for Rehearing). See also Brasfield v. State, 600 S.W.2d at 303 ( linton, J., dissenting on

State's Motion for Rehearing).

In the instant case, appellant timely filed a motion to qus sh the indictment,
as set forth in pertinent part above, and there was no amendment made to
the indictment by the State. Thus, the issue becomes wh ether the
indictment on its face fails to convey some requisite iten of notice. The
notice provided by the indictment in question must be e iamined from the
perspective of the accused in light of his constitutional presumption of
innocence. King v. State, 594 S.W.2d 425, 426 (Tex. Cr. pp. 1980);
Cruise v. State, 587 S.W.2d 403 (Tex.Cr.App. 1979); D umm v. State, 560
S.W.2d 944 (Tex.Cr.App. 1977).

DeVaughan v. State 749 S.W.2d 62 (Tex.Cr.App. 1988).

For an indictment to be sufficient in a prosecution underi section

71.02(a)(I), for engaging in organized criminal activity l~ycommitting
theft, the indictment must allege that the defendant: (1) dommitted theft
under chapter 31 of the Penal Code, and (2) did so with he intent to
establish, maintain, or participate in a combination or in the profits of a
combination. See State v. Dulce, 865 S.W.2d 466, 467-6~ (Tex.Crim.App.
1993).

Crum v. State, 946 S.W.2d 349, 358 (Tex.App. - Houston [14th] 1997).

In their eighth point of error, appellants claim their indic,tments fail to

allege any "overt acts" committed in furtherance of the combination. A
defendant may be charged with engaging in organized c .minal activity if
he (1) commits one of the enumerated offenses listed in section 71.02, or
(2) conspires to commit one of the offenses listed in section 71.02. If the
State alleges that a defendant conspired to commit one 0 the offenses, it
must also show that the defendant agreed with one or me re persons to
commit the offense and that the defendant committed an overt act with at
least one other person pursuant to that agreement. TEX. PENAL CODE
ANN. § 71.01(b) (Vernon 1994). On the other hand, wh m the State
alleges that a defendant has committed, rather than has conspired to
commit, one ofthe enumerated offenses, there is no req irement that it
allege or prove the existence of any overt acts. See Duke 865 S.W.2d at
468. Because appellants' indictments allege that each ap ellant committed
the specific offense of theft, the State was not required tc plead or prove
any overt acts.

4
Crum, 946 S.W.2d at 359.

To survive a timely motion to quash, the indictment, on its face, must

contain allegations of the facts necessary to show that th offense was
committed, to bar subsequent prosecution for the same 0tfense, and to
give the defendant notice of precisely what he is charged with. Id. Upon
review, we must first determine if the notice given is sufh.cient. If it is, our
inquiry is ended; if not, the record must be examined to 0 etermine the
impact of the deficiency on appellants' defense and its extent. Hillin v.
State, 808 S.W.2d 486,488 (Tex.Crim.App. 1991).

Crum, 946 S.W.2d at 359.

Appellants contend the indictment fails to allege any overt acts were
performed. We find the language "the said defendants performed overt
acts as follows," with the specific overt acts then listed, is sufficient to
allege specific overt acts and that those acts were perforn ed.

Nichols v. State, 653 S.W.2d 768, 771 (Tex.Cr.App. 1981).

IV.

The indictment first alleges that the Defendant gave all of the itemized monetary

contributions to Suzanne Wooten in exchange for Wooten's dec sionto proceed with a

campaign to unseat the incumbent judge of the 380th Judicial District Court. The problem

with this theory of prosecution is that this action on the part of tf e Defendant, even if
absolutely true, is not illegal.

The loser of the election from which this controversy arose complained in a

memorandum that money won the election. Maybe it did, but it is not illegal for someone.

to give money to any qualified individual to enable that individual to proceed with a

campaign against an incumbent. This is true notwithstanding thl: State's attempt to

characterize the transfer of funds at issue in this case as not being campaign contributions

or money to cover election campaign expenses. It should be observed that the usage of

5
the money to proceed as described in the indictment, even if articulated by the Defendant

to Wooten specifically, can not constitute an offense against the laws of Texas.

The same is true of the allegation that the Defendant gave money to Wooten for

the purpose of "filing paperwork to run for judge and filing c paign finance reports ...."

This is simply not illegal. Giving money to someone otherwise ualified for the office

sought, to file the paperwork and to conform with the laws requiring the filing of

campaign fmance reports, is perfectly legal. Even if what the site alleges in this regard

is absolutely proven beyond any doubt whatsoever, it will not be illegal.

v.
In its third allegation, the State alleges that the money wt given so that Wooten

would, after election, preside as judge of the 380th Judicial DistrLt Court, and would

preside over and issue "favorable rulings in cases pending in the 380th Judicial District

Court, a court in which DEFENDANT and his wife Stacy Stine Cary were parties to

pending cases." This is not illegal and cannot be or every perso who gave money to

"Tea Party" candidates with the hope that the recipient would vote in favor of the giver's

political opposition to particular policies is a criminal.

Defendant acknowledges that the State need not plead its evidence. However,

when the State chooses to allege more than is required by a stature, as in this case, it must

do so in language that alleges the crime in a plain and understandable manner. In so

doing, the State has presented an indictment that alleges a consp racy to commit legal

acts and, therefore, has not alleged a violation of the law.

Defendant would show that it is perfectly permissible for three or more persons to

agree to drive to Dallas from Austin, and an indictment that alleges this as a conspiracy

6
would not allege an offense. It is perfectly permissible for a person to agree with two

others to look for, fund, and support a candidate for public office who shares political and

social ideals with the giver and with the hope that the person selected will adhere to his or

her stated positions and rule in accordance with them. It only becomes illegal when there

is a specific agreement, not pled in this indictment, for the money to be used for illegal

purposes.

If the State alleges that a defendant conspired to commit one of the

offenses, it must also show that the defendant agreed wit one or more
persons to commit the offense and that the defendant cmhmitted an overt
act with at least one other person pursuant to that agree ent.

Crum, 946 S.W.2d at 359. The bribery statute under which the Defendant has been

indicted by reference, and in reality in counts 2-7, requires a showing that the payment

was made in consideration for an illegal act, § 36.02(a)(2), supr . In Count One of the

indictment the State went further than simply alleging a conspiracy when it attempted to

allege the purposes for which the money was given to Wooten, hich allegations

resemble those of the bribery statutes. The State has not alleged, however, that there is

any agreement with regard to any particular case involving either the Defendant or his

I
wife and Wooten, and in so failing has failed to allege facts sho ing anything other than

legal acts. As such, the indictment has not alleged a criminal offense,

VI.

Count I of the indictment violates Tex. C. Crim. Pro. Article 21.24(b) in that it

charges two separate offenses with two separate penalty ranges. Specifically, Count I

charges engaging in organized criminal activity by commission of bribery in addition to

engaging in organized criminal activity by conspiring to commit the offense of bribery.

See Tex. Penal Code 71.02 (b) and (c).

7
 Count I of the indictment alleges dates during which W (j oten was not a public

servant under the most liberal definition of the phrase as defined by Tex. Penal Code

§1.07, in that Wooten was not even a candidate during some of the time period alleged in

the indictment. Prior to filing for a place on the primary ballot, ooten was not a public

servant as defined by Tex. Penal Code §1.07. In fact, Wooten did not file for a place on

the primary ballot until January of 2008. The indictment alleges the offense dates

beginning September 19,2007. Therefore, it is legally and faCTIally impossible for the

alleged offense to have occurred in the manner described in the indictment. Accordingly,

the indictment should be quashed.

Count I of the indictment fails to provide constitutional1 minimal notice

sufficient to permit Defendant to prepare a defense, in violation of Defendant's right to

Due Process as guaranteed by the 5'" and 14'" Amendments to je United Stales

Constitution, Article I §§13, 19 of the Texas Constitution, and iu violation of Tex. Code

ofCrim. Proc. Articles 21.03,21.04, and 21.11, in that Count I ~fthe indictment fails to

state in plain and intelligible language any description of the alleged combination, in

particular the indictment fails to allege even generally in what on-going course of

criminal activities said combination is alleged to have been enga ged. See Roberson P.

Stote, 311 S.W.3d 642, 647-49 (Tex. App. - Eastland 2010, no}, et.) (State must prove

combination intends to engage in a continuing course of crimin I activity, more than

conspiracy to commit a single offense); and see Nguyen v. Smit. , 1 S.W.3d 694,697

(Tex. Cr. App. 1999).

8
 VII.

Counts Two through Seven - Bri ~

Counts II through VII of the indictment each attempt to

bribery statutes, specifically Penal Code § 36.02(a)(l) & (2).

l- violations of the

he indictment mixes legal

and allegedly illegal acts and attempts to avoid the issue by alleging that the contributions

were not campaign contributions. The crux of the State's cases, following complaints by

the losing incumbent, is that Defendant gave money to a candidate for that losing

incumbent's position, in exchange for her;

(1) proceeding with a campaign to unseat the incumbent;

(2) filing of paperwork to run for judge and filing campaign mance reports; and

(3) later presiding over and issuing favorable rulings in the court in which defendant
and herhusband were parties to pending cases.

The Bribery statute, Penal Code § 36.02, states, in pertinent part;'

(a) A person commits an offense if he intentionally or kno .ngly offers, confers, or

agrees to confer on another, or solicits, accepts, or agree. to accept from another:

(1) any benefit as consideration for the recipient's de ~ision, opinion,

recommendation, vote, or other exercise of discretion as a public servant,

'r
party official, or voter;

(2) any benefit as consideration for the recipient's de .ision, vote,

recommendation, or other exercise of official in a judicial or
administrative proceeding;

(3) any benefit as consideration for a violation of ad llty imposed by law on a

public servant or party official;

1 There is a sub § (a)(4), but the indictment eschews reliance m that subsection since it
specifically avers that the contributions were not campaign con hibutions or expenditures
as required by the subsection.

9
 The indictment was thus brought under Penal Code § 36. 2(a)(2), as it alleged, in

six separate, but almost identical counts, that the Defendant:

on or about January 4, 2008, and before presentment of this indictment, in

the County and State aforesaid, did intentionally and knov . glyoffer,
confer, and agree to confer on another benefits, other than political
contributions as defmed by Title 15 of the Election Code ~r expenditures
made and reported in accordance with Chapter 305 of the Government
Code, namely a $50,000 wire transfer from Stacy Stine Cary to James
Stephen Spencer, who was at the time of the payment se ing as campaign
manager for Suzanne H. Wooten's campaign for nomination and election
to the office of Judge of the 380th Judicial District Court f Collin County,
in the 2008 primary and general election conducted in Co lin County, with
the use of said funds benefitting Suzanne H. Wooten, as consideration for
Suzanne H. Wooten's decision, opinion, recommendation!, vote, or other
exercise of discretion as a public servant, and as consideration for Suzanne
H. Wooten's decision, vote, recommendation, and other exercise of official
discretion in a judicial proceeding, to wit: proceeding wi a campaign to
1

unseat the incumbent elected judge of the 380th Judicial District Court;
filing paperwork to run for judge and filing campaign firu ce reports; and
later presiding as judge of the 380th Judicial District Court, including
presiding over and issuing favorable rulings in cases pending in the 380th
Judicial District Court, a court in which DEFENDA."NT ahd'bis wife Stacy
Stine Cary were parties to pending cases;

Defendant would show that the count is multifarious, an thus, ambiguous to the

point that it fails to adequately inform the Defendant what it is a)~ainst which he must

defend, in that it attempts to charge the Defendant under at least two of the bribery

subsections, and maybe three. It also lacks language sufficient to support a subsequent

plea in bar for Double Jeopardy purposes. The only thing certai about the indictment is

that it makes clear that the charges are not brought under Penal/ode § 36.02(1)(4).

First, the indictment alleges that the particular transfer of money in this particular

count was given as consideration for Suzanne H. Wooten's "decision, opinion,

recommendation, vote, or other exercise of discretion as a PUblJ servant." This appears

to rely on § 36.02(a)(1), The same count, however, goes on to merge the apparent

10
statutory violation alleged with another when it alleges, "as consi eration for Suzanne H.

Wooten's decision, vote, recommendation, and other exercise of ( fficial discretion in a

judicial proceeding .... " This appears to invoke § 36.02(a)(2). HI s the State attempted to

allege the violation of two separate statutes in one count? It wou d appear so.

The indictment makes no allegation, using standard grarm atical construction,

that the Defendant had anything particular in mind for Wooten to do as a public servant,

other than exercise her discretion without mention of benefit to t e Defendant. However,

as to the second statute alleged to have been violated within this count, it is alleged that

the Defendant gave Wooten the declared amount of money for legal activities, and thus

alleges no offense even if the preliminary wording of the statute ere followed.

Specifically, as to, presumably, § 36.02(a)(2), the indictni ent reads:

as consideration for Suzanne H. Wooten's decision, vote,

recommendation, and other exercise of official discretion in a judicial
proceeding, to wit: proceeding with a campaign to unseat the incumbent
elected judge of the 380th Judicial District Court; filing p,aperwork to run
for judge and filing campaign finance reports; and later presiding as judge
of the 380th Judicial District Court, including presiding ver and issuing
favorable rulings in cases pending in the 380th Judicial District Court, a
court in which DEFENDANT and his wife Stacy Stine Gary were parties
to pending cases... . [

This section of the count, as can be seen, attempts to allege the quid pro quo,

which the Defendant was allegedly buying from Wooten by givi g, if he did, the money

alleged to have been given. What precisely was that quid pro q o? To that question the

indictment provides no answer.

First, the count alleges that the Defendant gave money t

expectation that Wooten would proceed with a campaign to unseat the incumbent elected

judge. In other words, it was money to encourage a candidate t run for office, hardly an

11
unusual or criminal activity in the political world of this country. This count does not

allege an offense and should be quashed.

Second, the count alleges that the Defendant gave the n ed amount of money to

Wooten with the expectation that Wooten would file paperwork to run for the position of

judge, another commonplace event in political life, and then wou d file campaign finance

reports, yet another. People who donate money to political candi fates, it can be assumed,

must know that there are laws which require appropriate paperwork to be filled out and
I
filed to run for office and that accounting must be made of the money by the candidate.
.
This allegation, if it is worthy of that appellation, hardly alleges Jiminal activity.

Lastly, the sub-portion of this count alleges that the DefeIi~dantgave Wooten

money as consideration for Wooten sitting as ajudge and presiding as judge over the

380th Judicial District Court, including presiding over and issuing favorable rulings in

unnamed cases pending in the 380th Judicial District Court. The I dictment does not
allege that Wooten was to give favorable rulings in cases in which Defendant was a

party; instead, the indictment states that Wooten was to issue favorable rulings in cases

pending in the 380th Judicial District Court. No specifics are set ut; no particular cases

or cause numbers mentioned, nor is any agreement said to eXiSl.jThiS defect dooms this

section of the count to failure in its quest to allege an offense against the penal laws of

Texas.

The Court of Criminal Appeals, in one of the first cases dealing with the modem

bribery statutes, wrote:

Given the nature of the bribery offense, we do not conclude that

"consideration" was used in the exact sense used pertainii g to a valid and
legally enforceable contract, but nevertheless it can be in rerpreted as an
inducement to an illegal contract, that of bribery.

12
McCallum v. State, 686 S.W.2d 132, 135 (Tex.Cr.App. 1985). e Court held that the

wording requiring a defendant to intentionally or knowingly confer a benefit "as

consideration for" something, "as requiring a bilateral arrangement - in effect an illegal

contract to exchange a benefit as consideration for the performan ce of an official

function." McCallum, 686 S.W.2d at 136.

It is not enough to allege that a defendant gave money to a candidate in exchange

for the candidate acting in a manner that the donor wishes. Such a motivation lies behind

contributions to every political candidate. People give money to political candidates,

including judges in Texas, because they believe they are supportiing someone who, when

elected, will act, legislate, rule or administer in a manner which tlte donor supports.

Criminal defendants can certainly, acting in their rightful role as United States citizen,

contribute to political campaigns for their own personal reasons, .ncluding a hope that the

candidate who they support will win and will be less harsh in administering the criminal

law. What criminal defendants, or anyone else for that matter, C2 ot do, is to give

money to candidates, or office-holders, with the specific agreem nt that something illegal

will take place. That is precisely what this indictment fails to all ege.

In essence, this count, and all the others which attempt to allege bribery, must fail

because they fail to give any notice to the Defendant as to what it is, precisely, which he

did which violated a law. No agreement is alleged. The count, and each of the counts
I
attempting to allege bribery, must be quashed because it, and thew, fail at the task it is

intended to perform -- to allege a violation of the law.

13
 VIII.

The bribery counts, counts II through VII, must be quash xi because they each fail

to allege an offense under a particular statutory prohibition, instead, merging allegations

under multiple statutory provisions, into a catch-all allegation. A dditionally, and even

when merging separate and distinct concepts, the counts still must fail because they fail

to allege any criminal activity. It is not illegal to give otherwise qualified individuals

money to run for office, to file the necessary documents or to filJ out the appropriate

paperwork. It is likewise not illegal to give money to otherwise qualified candidates in

the hope they might rule differently than the person currently on the bench. And that is

all the indictment in the case at bar alleges.

In addition, Counts II through VII of the indictment are I sser included offenses

of Count I, and subjecting Defendant to trial on all of these Counts would violate his right

to be free from Double Jeopardy in violation of his rights under the 5th and 14th

Amendments to the U.S. Constitution and Article 1 §14 of the exas Constitution, his

right to be free from cruel and unusual punishment per the 8th A endment to the U.S.

Constitution, and the law in Blockburger v. United States, 284 llJ.S. 299,52 S.Ct. 180, 76

L.Ed. 306 (1932).

Counts I through VII of the indictment fail to provide D(endant constitutionally

minimal notice of what illegal acts he is alleged to have committed. In fact, the

indic1ment actually alleges innocent, legal, appropriate and ordiLr acts normally

engaged in by and expected of candidates for judicial office and elected judges, i.e.,

"proceeding with a campaign," "filing paperwork to run for judge," "filing campaign

fmance reports" (the filing of which is required by law), and "presiding as judge of the

14
380th Judicial District Court," the very Court Wooten was electe to preside over as part

of her duties as the elected judge of that Court.

The phrase, "presiding as judge of the 380th Judicial District Court" is really a

fancy way of saying that Judge Wooten would actually do the job. Taken to its logical

conclusion, the prosecution's theory of the case is that everything Judge Wooten did in
th
connection with her duties as the elected Judge of the 380 Judicial District Court

arguably benefitted Defendant because, after aU, their alleged "illegal agreement" was

simply that she would go to work. How can Defendant defend against that?

Hence, the allegations in the indictment are so vague, ambiguous and overly

broad as to deprive Defendant of any notice at all. The indictment's failure to provide

even minimal notice sufficient to allow Defendant to prepare a defense has left him

unable to investigate the alleged acts to prepare any possible defensive evidence and

obtain the presence of any necessary witnesses, anticipate and p epare a proposed jury

charge for each count, and properly voir dire the jury.

The indictment must be quashed.

IX.

Prayer.

WHEREFORE, PREMISES CONSIDERED, Defendant rays the Court will

grant this motion in all things and enter its ORDER quashing th indictment in this cause,

and for any other relief to which he may show himself to be jus y entitled at law and in

equity.

15

16