dissenting.
A conviction in Texas should be based upon an indictment issued after the presentation of the district attorney’s case to the grand jury. No conviction can stand which does not proceed in this fashion. Tex. Const. art. I, § 10. Tex.Code CRiM. Proc. Ann. art. 1.05. U.S. Const. amend. V. Thus, defendants cannot be convicted of extraneous offenses or, in other words, offenses not listed on the face of the indictment. Crawley v. State, 513 S.W.2d 62 (Tex.Crim.App.1974); Tex. Const. art. I, § 10. But that is exactly what appellant claims happened. Specifically, he suggests that the court of appeals erred to affirm his convictions because he was convicted of offenses occurring in 1986 and 1987 and listed as “extraneous offenses” at a pre-trial hearing as opposed to those offenses occurring “on or about” August, 1988, as listed in the indictment:
The issué again, involves the question of whether the State may use the “on or about” phrase in an indictment to bypass extraneous offense law and indictment requirements to secure a conviction based on conduct not alleged in an indictment.
Petition for Discretionary Review, pg. 11. By so doing, he challenges the very constitutionality of Tex.Code Ceim. PROC. Ann. art. 21.02(6), which provides that:
An indictment shall be deemed sufficient if it has the following requisites:
The time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation.
Of course, appellant’s complaint has little to do with the phrase “on or about”. Mireles v. State, 901 S.W.2d 458, 466 (Tex.Crim.App.1995)(Meyers, J., dissenting). Instead, it questions the long standing precedent, codified in art. 21.02(6), that “the State [is] not obliged to prove a certain date at trial even if it had actually alleged one in the indictment.” Id. at 464. Although ultimately finding the evidence sufficient to prove the allegations in both counts of the indictment, the court of appeals nevertheless sympathized with appellant’s concern that he may have been convicted for an unindicted offense.
Indeed, problems with art. 21.02(6) abound and they are especially apparent in those cases involving child sexual abuse, like the one before us today, in which the same activity can be repeated over a long period of time *265by the same defendant upon the same victim. In such eases it is often difficult to identify one particular incident or transaction from the next, except by the date on which the incident occurred. When the State is given such latitude, via art. 21.02(6), on its requisite proof regarding the date of an indicted offense, the chance that a defendant will be convicted of an “offense” other than that for which he was indicted increases dramatically.
Of course, if an “offense” is merely a statutory “offense” for purposes of art. I, § 10, then, as both the court of appeals and the majority aver, there can be little doubt that the appellant was indicted and convicted for the same offense. But our law indicates otherwise. Flowers v. State, 815 S.W.2d 724 (Tex.Crim.App.1991). In Flowers we analyzed Tex.Code CRiM. PROC. Ann. art. 28.10(c) in the context of Tex. Const, art. I, § 10. Art. 28.10(c) provides:
An indictment or information may not be amended over the defendant’s objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced.
We held that an “additional or different offense” meant an additional or different statutory offense such that when the indictment, in that ease, was amended to reflect a different owner of property allegedly stolen by defendant, the amendment did not charge an additional or different offense under art. 28.10(c). Id. at 728. However, we went on to state that:
Such an interpretation does not end our analysis. Even though the amendments are not objectionable as charging an additional or different offense, they may be improper if they prejudice the “substantial rights of’ the defendant ... For example, if the record shows that the amendment is made so as to charge a different occurrence or incident than that originally alleged in the indictment, the substantial rights of a defendant would be prejudiced in part because he has been denied any grand jury review of the offense as required by art. I, § 10.
Id. at 729 (emphasis added). In short, art. I, § 10 is concerned not only with statutory offenses, but with specific incidents of statutory offenses. It follows, then, that art. I, § 10 demands that the defendant be indicted and convicted for the same incident and not merely for the same statutory offense.
Art. 21.02(6), however, does not comply with the demands of art. I, § 10. This, because, as stated above, it significantly reduces the chance that a defendant will be indicted and convicted of the same “offense.” We thus ought not, as the majority does here, dismiss appellant’s art. I, § 10 complaint because there “is no evidence that the testimony presented to the grand jury related to the offenses other than those proven at trial[ ]”, especially since grand jury testimony is secret. In order to comply with our constitution the State must prove its date allegations with greater accuracy. For example, when the State alleges that an offense occurred “on or about” a certain date, it ought to prove those allegations within a few days of the specific date.1 Such a rule both supports the mandate of art. I, § 10 and also comports with common parlance. See Mireles v. State, 901 S.W.2d at 469 (Meyers, J., dissenting). Of course, even this rule cannot guarantee that a defendant will be indicted and convicted of the same of offense. But, unlike art. 21.02(6), it promotes, rather than hinders, art. I, § 10 protections.
Because the majority does not so hold, I respectfully dissent.
. Of course, the Slate need not use the "on or about” language. As the majority observes, the use of such language, when it has the meaning of "within a few days", would often significantly decrease the chance for a successful prosecution in those cases involving offenses against children. Instead, alternatives exist that would both allow the State enough latitude to obtain convictions in such cases and also lend substance to the mandate of art. I, § 10. For example, the State might indict someone for the sexual assault of a child "within one monlh”of any given date. No doubt, any rule narrowing the time frame presently allowed in art. 21.02 will impede, to some degree, the State’s ability to obtain convictions. But our job is not to facilitate the State’s ability to obtain convictions at any cost, especially when that cost is constitutional in nature.