dissenting.
I have no disagreement with the majority opinion’s threshold conclusion, nor with the numerous authorities cited to support it, that matters of form contained in an indictment may be amended prior to announcement of ready by the parties, while matters of substance may not be so amended.1
However, that the “amendment” to be made here is a matter of substance, is another question, and one to which the majority opinion offers no satisfactory answer. I find no support whatever in the majority opinion for the proposition that factual elaboration — unnecessary to the fundamental sufficiency of the indictment — which the grand jury failed to make, or simply ignored, constitutes in absentia a matter of substance. I am further perplexed by the circumlocutory rationale advanced by the majority which ignores and then creates conflict with the Code of Criminal Procedure, as well as case authority thought to be once and for all decisive on the nature of “form” versus “substance,” such as American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).2
*304While I agree both that there is a “connection between the constitutional protection of the grand jury and the statutory provision for amendment of matters of form,” and that “[t]he statutory allowance to amend an indictment ... is limited by the constitutional requirement of a grand jury finding,” I am not persuaded that “a strict reading” of the Code of Criminal Procedure3 “would allow . . . abrogation of the constitutional protection of the right to indictment by grand jury.”4
Let us review the “connection” between the statutes and the Constitution, and, by use of the majority opinion’s cited authority, determine the extent to which the statutes are “limited by the constitutional requirement” of the right to indictment by grand jury. It is initially appropriate to determine exactly what the Constitution does require.
Article I, Section 10 of our Constitution provides in relevant part, simply that:
In all criminal prosecutions the accused . shall have the right to demand the nature and cause of the accusation against him, . . . [A]nd no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury .
Article 21.01, V.A.C.C.P., informs us of the “substance” of an indictment:
An ‘indictment’ is the written statement of a grand jury accusing a person therein named of some act5 or omission6 which by law is declared to be an offense.7
And what are the essential components of “an offense” as declared by law? V.T.C.A. Penal Code, Section 1.07(a)(13), directs that “element of offense” means:
(A) the forbidden conduct;8
(B) the required culpability; 9
(C) any required result; and
(D) the negation of any exception to the offense.
It seems clear to me, then, that what the Constitution requires, is that the grand jury find and express facts which are sufficient to show on the face of the indictment that the accused is alleged to have done that which a penal statute proscribes; or restated, the grand jury’s constitutional function is to assure, by affirmative finding, that there is sufficient cause to believe that a person has committed each and every “element” of an offense, and express those findings in writing in order to notify him *305thereof, before he is held liable to defend against a prosecution by the State.10
Thus, the duty devolving upon and confided to the grand jury by direction of our Constitution is to accuse a person of an act or omission constituting an offense, and when the grand jury makes such a written declaration on the face of an indictment, the constitutional right of the accused has been fully honored. While it might be preferable that the grand jury find every factual detail necessary to prove the “skeletal” allegation that an offense has been committed, such preference is a creature of statute,11 and not a constitutional requirement.
Consonant with the above, the Code of Criminal Procedure instructs that “There is NO exception to the substance of an indictment . . . except:
1. That it does not appear therefrom that an offense against the law was committed by the defendant; . .” Article 27.08, V.A.C.C.P.12
Without question, a person who is tried upon an indictment which utterly fails to allege an offense against the law, has been denied his constitutional right to indictment by a grand jury; in recognition of this precept, Article 28.10 specifically and unambiguously prohibits any attempt to correct such fundamental deficiency by amendment. Thus, in such a case, because the constitutional protection has been initially denied, it must be effectuated by a reinvo-cation of the grand jury process.
The instant case presents an entirely different issue which, in turn, involves quite dissimilar policy considerations. The concern of an accused, faced with a fundamentally adequate indictment against him, is that he be given specific notice of facts which the State will prove in support of the grand jury findings alleging he has committed an offense.13 See Articles 21.11 and 21.02(7), V.A.C.C.P. Thus, the accused’s constitutional right to indictment having been honored, I can see no justification in law or reason for requiring that such additional factual elaboration be supplied by additional investigation, deliberation and written declaration of a grand jury.14 The rule the majority fashions today takes the grand jury function far beyond its constitutionally intended contribution to the criminal judicial process.15
The majority opinion insists that its conclusion in this cause is compelled by the numerous case decisions quoted, cited and discussed therein. While I have no doubt that ancient authority can be found to support directly the majority construction, I *306am compelled to point out that none of the cases cited does. In Calvin, a Slave v. State, 25 Tex. 789 (1860), for example, the accused was tried on an indictment which alleged in one count that he murdered:
a negro woman, a slave, named Vina, the property of the heirs of the said Robert Smith, deceased.
Apparently dissatisfied with the accuracy of the property description of the victim in this count, all parties agreed to delete the phrase “the property of the heirs of the said “ Robert Smith, deceased,” whereupon it was erased from the face of the indictment. The majority opinion correctly quotes the second part of the Supreme Court’s holding, but fails to recite the first part, including the issue, which was:
. [W]e are of the opinion that the alteration of the indictment was contrary to law, and that the indictment as altered could not support a conviction. The words which were erased from the indictment were words of substance. * * * [T]hose words having been placed in the first count became words of substance by being put there. * * * The question is whether or not the counsel, or the district attorney, and the prisoner, or even the court can make an alteration in an indictment in a material respect. We think not. [See majority opinion for remainder of holding],
25 Tex. at 794.
The Supreme Court concluded that because the indictment had been altered in a fundamental respect, the error was cognizable, having been raised for the first time on motion in arrest of judgment. Accord American Plant Food Corp., supra.
In Sanders v. State, 26 Tex. 119 (1861), the grand jury failed to specify the year during which the accused allegedly stole a pistol; the prosecutor was permitted to insert “in the year of our Lord one thousand eight hundred and sixty-one.” Pointing to the requirement that the time alleged must be a date anterior to presentment of the indictment, and not so remote as to be barred by the limitation, the Supreme Court stated at 120:
No part of an indictment can be more a matter of substance, as distinguished from a matter of form, than the part which states the time of the commission of the offense. [See majority opinion for remainder of holding.]
Of course the grand jury’s finding and declaration of the date of the commission of an alleged offense is essential to the fundamental sufficiency of the pleading today, and the failure of the indictment to recite such fact makes it vulnerable to an exception as to substance, Article 27.08(2), V.A.C. C.P., and may not be rectified by amendment. Articles 28.09 and 28.10, supra.
Finally, the majority opinion quotes from Sharp v. State, 6 Tex.App. 650 (1879); in that case, the prosecutor was permitted to change the year contained in the caption to identify the time of the meeting of the court from “11876” to “1876.” In this context, the Court of Appeals pointed out that such an alteration could not be made upon facts found by the grand jury; however, because the caption is the work of the prosecutor, any error therein is one of form and may be amended.
In addition to that quoted by the majority opinion, the Court of Appeals observed:
What is form and what is substance is defined by the Code; and also what are the ONLY exceptions, either to the form or the substance, of which one indicted can avail himself preliminary to the trial.
I certainly agree that because it is the constitutional function of the grand jury to find and express in writing facts which constitute “sufficient cause” to commence a felony prosecution, what the grand jury declares becomes a matter of substance which no one is at liberty to change, strike or erase. See Calvin v. State, supra. It is equally clear to me that no addition can be made to a fundamentally defective indictment, in order to cure the fatal deficiency. See Sanders v. State, supra.
But none of these situations is the case before us. And I find not a single case cited by the majority opinion which is applicable to the circumstances here; e. g., *307where grand jury findings are fundamentally sufficient, and factual elaboration of the material allegations is the subject of the amendment sought.
So long as factual details, descriptive of the offense alleged by the grand jury, are consistent with those allegations, I cannot agree that such elucidation constitutes a matter of substance which only a return trip to the grand jury can provide. Such a requirement is cumbersome and an obstacle to the fair and speedy administration of justice.
Rather, I am satisfied that the procedure contemplated by governing provisions of the Code of Criminal Procedure comports with every constitutional requirement and protection. Upon proper exception by the accused that the indictment fails to specify the name of the victim of the aggravating offense and he is thereby denied notice of a fact necessary to prepare his defense, if upon consideration the trial court finds that the name sought is one other than that reflected in the indictment, the exception must be sustained;16 failure to sustain it in these circumstances constitutes prejudicial error. E. g., King v. State, 594 S.W.2d 425 (Tex.Cr.App.1980). On the other hand, if the trial court finds that the victim named in the indictment is the only victim involved in the capital murder prosecution, there is no fact, i. e., name, of which the accused is being deprived. But the examination and determination must be made for the record by the trial court; a statement by the State, if unchallenged, may suffice to support such a finding when both are spread on the record.
Particularly for the reason that I find no support for the majority’s conclusion — and in fact am convinced that it is antithetical to the scheme contemplated by the Code of Criminal Procedure, which is wholly consistent with the intent of our Constitution17 — I dissent to the additional confusion the majority interjects into the morass of the indictment law today.
. Indeed, the majority’s lengthy discussion in this regard would be obviated, in my view, by a recitation of the language of Article 28.10, V.A. C.C.P., which unambiguously provides:
Any matter of form in an indictment . may be amended at any time before an announcement of ready for trial upon the merits by both parties, but not afterward. No matter of substance can be amended.
. One holding of American Plant Food concisely illustrates the point:
The . . . two requirements . . . , that the State’s pleading must allege facts sufficient to bar a subsequent prosecution for the same offense and sufficient to give the defendant notice of precisely what [the accused] is charged with, though relating to the substance, of the [allegation] in [a] sense, are, in contemplation of exceptions under Articles 27.08 and 27.09, [V.A.C.C.P.], grounds for an exception to the form under Articles 27.09(2) and 21.21(7), and not for an exception to the substance under Article 27.08(1). *304Clearly any such defect would not render the [indictment] void or insufficient to support a conviction.
508 S.W.2d 603.
And a further notation by the Court in American Plant Food:
It will also be observed that any defect in the matters set forth in the other provisions of Article 27.08 also go to the very sufficiency of the indictment or information to support the particular conviction based thereon. It is this quality of the sufficiency of the State’s pleading as a matter of law to support the conviction that makes the deficiency one of substance.
Id., n. 1. (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)
. Specifically, Articles 21.02, 28.09 and 28.10, V.A.C.C.P., according to the majority. But see also Articles 27.08 and 27.09, V.A.C.C.P.
. Nor can I agree that a “strict reading” of the articles cited in n. 3, ante, would allow a “conflict with the principles" of the cases quoted in the majority opinion, for the reasons to be discussed post.
. V.T.C.A. Penal Code, § 1.07(a), provides that, in our penal code,
(1) ‘Act’ means a bodily movement, whether voluntary or involuntary, and includes speech.
. “Omission” is defined as “failure to act.” Section 1.07(a), supra, subsection (23).
. V.T.C.A. Penal Code, Section 1.03(a), provides in relevant part:
Conduct does not constitute an offense unless it is defined as an offense by statute,
. “ ‘Conduct’ means an act or omission and its accompanying mental state.” Section 1.07(a), supra, subsection (8). [See n. 5 and 6, ante, for definitions of “act” and “omission”].
. See V.T.C.A. Penal Code, Section 6.02 entitled “Requirement of Culpability.”
. This interpretation is wholly consistent with the commentary to Tex.Corist. Art. I, Section 10, quoted by the majority:
The requisite of indictment by a grand jury was designed to protect an individual against unjust prosecution without sufficient cause, said indictment informing the accused of the nature of the charges against him so that he may adequately prepare his defense.
. Article 21.03, V.A.C.C.P., provides that “Everything should be stated in an indictment which is necessary to be proved.”
. Likewise, the other three exceptions to the • substance of an indictment included in and limited by Article 27.08, supra, are matters which defeat the pleading’s sufficiency to support a judgment of conviction. [See n. 2, ante].
See also Woodard v. State, 86 Tex.Cr.R. 632, 218 S.W. 760 (Tex.Cr.App.1920); and compare American Plant Food Corp., supra.
. This Court has acknowledged that a second concern of the accused in such posture is that the allegations “enable [him] to plead the judgment that may be given upon [the indictment] in bar of any prosecution for the same offense.” Article 21.04, V.A.C.C.P.; American Plant Food Corp., supra.
. Indeed, if an accused fails properly to accept to a “skeletal,” but fundamentally adequate indictment on the ground of insufficient notice, providing descriptive factual detail becomes the duty of the prosecutor in meeting his burden of proof before a petit jury, and ultimately, before this Court.
. If the constitutional grand jury function in returning indictments is to find facts sufficient to give detailed notice of what will be proved at trial as the majority claims, rather than to make a “probable cause" finding of commission of an offense, expressed in writing for purposes of notice, how can we justify deprivation of this constitutional right to the accused who fails to except? Should he not waive exception in writing in such a case? See Lackey v. State, 574 S.W.2d 97 (Tex.Cr.App.1978).
. Unlike the majority, however, I would give effect to Articles 21.02, 27.09, 28.09, 28.10, and 28.11, V.A.C.C.P., and direct that this additional fact be added to the indictment under the direction of the trial court, without requiring a reindictment by the grand jury.
. Since the majority is obviously convinced that the Code of Criminal Procedure does not mean what it says because a strict reading of the unambiguous provisions in issue creates conflict with the Constitution, I am at a loss as to why the majority does not simply declare those statutes unconstitutional.
Apparently, it is thought that such a drastic step would require justification by the application of standard principles of statutory construction, an analysis the majority takes pains to avoid. Compare analysis in Vance v. Hatten, 600 S.W.2d 828 (Tex.Cr.App.1980).