                                 IN THE
                         TENTH COURT OF APPEALS



                                No. 10-18-00295-CR

                        IN RE MARCUS PILKINGTON


                                Original Proceeding



                            CONCURRING OPINION


      At the hearing before the trial court various arguments were made. Some of the

arguments made by various attorneys are set out below. The arguments have to do with

the legal effect of a document, which is being referred to as a “reindictment” apparently

to distinguish it from the original “indictment.”        Both the indictment and the

reindictment were filed in the same trial court cause number.

      Attorney One: “…the caption of the two indictments run under the same
      cause number that’s been assigned by the district clerk. These are two
      independently returned indictments, Your Honor. The State has never
      moved to amend the first returned indictment at all…It is still an active,
      validly returned indictment...The same can be said for the second returned
      indictment.”

      Attorney One: “Again, there has been no amendment of either indictment
      on this—in this case,…”
        Attorney Two: “Our opinion on that is it [the reindictment] replaces
        completely the old indictment. The old indictment ceases to exist.

        Attorney Three: “The other indictment ceases to exist.”

        Attorney Two: “We’re proceeding on the riot [reindictment]. That’s our
        election at that point.”

        The problem is that all these arguments were being made by the same party, the

State, and the arguments are clearly inconsistent. One attorney is arguing that there are

two valid and subsisting indictments against the defendant now pending in the same

case number. The other attorneys for the State are arguing that the second indictment

replaced the first indictment.       This causes me to agree with a summary from the

defendant’s brief:

        “This is a debacle wholly of the State’s creation.”

        It seems like there is an easy fix. The easy fix seems to be first, call it what it is, an

indictment, and second, file the so called “reindictment” in a new cause number. There

are consequences that follow an additional indictment versus an amended indictment. I

have found nothing that authorizes or prohibits the filing of two indictments in the same

trial court case number, but it is certainly going to be confusing as it moves forward to

identify to which of the indictments any post-indictment procedures and protections,

motions, hearings, etc. apply if the parties even on one side cannot agree whether there

is one or two indictments pending in this case.




In re Pilkington                                                                           Page 2
        But even an easy fix does not give us the authority to compel it by mandamus. I

concur in the Court’s denial of the petition for a writ of mandamus.



                                         TOM GRAY
                                         Chief Justice

Concurring opinion delivered and filed November 7, 2018




In re Pilkington                                                                 Page 3
