Shuler v. State

Judge Harold R. Banke.

The appellant was indicted for one count of burglary occurring on November 28, 1991. After the trial commenced on April 22, 1992, the State announced that it intended to prove the offense actually occurred on November 29, 1991. The appellant moved for a directed verdict of acquittal on the ground that there was a fatal variance between the allegata and the probata. The trial court denied that mo*791tion but granted the appellant’s alternative motion for mistrial.

On retrial in October 1992 under the same indictment, the jury was struck from a panel of 30, as provided by the…