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V.T.C.A., Penal Code � 6.

02

Vernon's Texas Statutes and Codes Annotated Currentness

Penal Code (Refs & Annos)

Title 2. General Principles of Criminal Responsibility

Chapter 6. Culpability Generally (Refs & Annos)

� 6.02. Requirement of Culpability

(a) Except as provided in Subsection (b), a person does not commit an offense
unless he intentionally, knowingly, recklessly, or with criminal negligence
engages in conduct as the definition of the offense requires.

(b) If the definition of an offense does not prescribe a culpable mental state, a
culpable mental state is nevertheless required unless the definition plainly
dispenses with any mental element.

(c) If the definition of an offense does not prescribe a culpable mental state,
but one is nevertheless required under Subsection (b), intent, knowledge, or
recklessness suffices to establish criminal responsibility.

(d) Culpable mental states are classified according to relative degrees, from
highest to lowest, as follows:

(1) intentional;

(2) knowing;

(3) reckless;

(4) criminal negligence.

(e) Proof of a higher degree of culpability than that charged constitutes proof of
the culpability charged.

(f) An offense defined by municipal ordinance or by order of a county
commissioners court may not dispense with the requirement of a culpable mental
state if the offense is punishable by a fine exceeding the amount authorized by
Section 12.23.

CREDIT(S)

Acts 1973, 63rd Leg., p. 883, ch. 399, � 1, eff. Jan. 1, 1974. Amended by Acts
1993, 73rd Leg., ch. 900, � 1.01, eff. Sept. 1, 1994; Acts 2005, 79th Leg., ch.
1219, � 1, eff. Sept. 1, 2005.

HISTORICAL AND STATUTORY NOTES

2006 Electronic Pocket Part Update
2005 Legislation

Acts 2005, 79th Leg., ch. 1219, added subsec. (f).

Section 2 of Acts 2005, 79th Leg., ch. 1219 provides:

"The change in law made by this Act applies only to an offense committed on or
after the effective date of this Act. An offense committed before the effective
date of this Act is covered by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose. For purposes of this
section, an offense is committed before the effective date of this Act if any
element of the offense occurs before the effective date."

2003 Main Volume

Acts 1993, 73rd Leg., ch. 3, � 1, in subsecs. (a) and (c), following "Subsection
(b)", deleted "of this section".

Prior Laws:

Rev.P.C. 1879, arts. 576, 577.

Rev.P.C. 1895, arts. 681, 682.

Rev.P.C. 1911, arts. 1111, 1112.

Vernon's Ann.P.C. (1925) arts. 39, 1228, 1229.

CROSS REFERENCES

"Conduct" defined, see V.T.C.A., Penal Code � 1.07.

Intoxication and alcoholic beverage offenses, culpable mental state not required
for convictions, see V.T.C.A., Penal Code � 49.11.

"Person" defined, see V.T.C.A., Penal Code � 1.07.

LAW REVIEW COMMENTARIES

Aggravated robbery--Texas style. Jim D. Bowmer, Bob Burleson and Luther E. Jones,
Jr., 33 Baylor L.Rev. 947 (1981).

Annual survey of Texas law:

Criminal Law. Victoria Palacios, 53 SMU L. Rev. 797 (2000).

Criminal law--Culpable mental state. Mike McColloch and David W. Coody, 37 Sw.L.J.
379 (1983).
Indictments and motions to quash: Problems of Thomas v. State and Ferguson v.
State. 34 Baylor L.Rev. 459 (1982).

Indictments under new Texas Penal Code. Percy Foreman and Luther E. Jones, Jr., 15
Hous.L.Rev. 1 (1977).

Mens rea--problems with the Penal Code. 11 Hous.L.Rev. 1230 (1974).

Review of fundamental error in jury charges in Texas criminal cases. Wendell A.
Odom and Robert E. Valdez, 33 Baylor L.Rev. 749 (1981).

Unconstitutionality of criminal liability without fault: An argument for a
constitutional doctrine of mens rea. James J. Hippard, Sr. 10 Hous.L.Rev. 1039
(1973).

LIBRARY REFERENCES

2003 Main Volume

Criminal Law 19.
Westlaw Topic No. 110.

C.J.S. Criminal Law � 31.

RESEARCH REFERENCES

2006 Electronic Pocket Part Update
ALR Library

169 ALR 315, Comment Note.--Duty in Instructing Jury in Criminal Prosecution to
Explain and Define Offense Charged.

161 ALR 10, Test or Criterion of Term "Culpable Negligence," "Criminal
Negligence," or "Gross Negligence," Appearing in Statute Defining or Governing
Manslaughter.

150 ALR 743, Certiorari After Judgment to Test Sufficiency of Indictment or
Information as Regards the Offense Sought to be Charged.

146 ALR 655, Validity, Construction, and Application of Statutes or Ordinances
Penalizing One Who Enters or Remains in Dwelling After Having Been Forbidden to Do
So.

125 ALR 605, Necessity of Charging Matter of Aggravation in Indictment or
Information, to Justify Imposition of Higher Punishment Under a Statute Which
Varies Punishment According to Enormity of Offense.

Encyclopedias

TX Jur. 3d Automobiles � 463, Culpable Mental State; Driver's Knowledge of
Accident.
TX Jur. 3d Criminal Law � 77, Generally; Indictment.

TX Jur. 3d Criminal Law � 137, Generally; Requirement of Voluntary Act or
Omission.

TX Jur. 3d Criminal Law � 140, Generally; Requirement of Culpability.

TX Jur. 3d Criminal Law � 141, Degrees of Culpable Mental States.

TX Jur. 3d Criminal Law � 339, Indecency With a Child.

TX Jur. 3d Criminal Law � 828, Culpable Mental State.

TX Jur. 3d Criminal Law � 903, Generally; Culpable Mental State.

TX Jur. 3d Criminal Law � 1310, Generally; Power of State to Regulate.

TX Jur. 3d Criminal Law � 3233, Culpable Mental State.

TX Jur. 3d Zoning � 170, Sexually Oriented Business.

Treatises and Practice Aids

Charlton, 6 Tex. Prac. Series � 4.2, Acts or Omissions.

Charlton, 6 Tex. Prac. Series � 4.3, Requirement of Culpability.

McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 1.1, Commentary --
Complaints, Informations and Indictments.

McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 1.2, Model Complaint,
Information and Indictment.

McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 25.3, Unlawful Possession
of Firearm.

McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 28.4, Driving While
Intoxicated -- First Offense.

McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 53.2, Motion to Quash --
General.

McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 99.1, Commentary.

McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 99.2, Model Charge.

McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 109.1, Model for Dictating
Objections to the Court's Charge.

Dix and Dawson, 41 Tex. Prac. Series � 19.23, Showing that Accused Committed
Charged Offense -- in General.

Dix and Dawson, 41 Tex. Prac. Series � 20.141, Alleging the Necessary Mens Rea --
in General.

Dix and Dawson, 41 Tex. Prac. Series � 20.142, Culpable Mental State Requirements.

Dix and Dawson, 41 Tex. Prac. Series � 20.143, Penal Code s6.02's Requirements.
Dix and Dawson, 41 Tex. Prac. Series � 20.144, Alleging "Specific Intents" or
"Particular Culpable Mental States".

Dix and Dawson, 41 Tex. Prac. Series � 20.145, Alleging Other Required Culpable
Mental States.

Dix and Dawson, 41 Tex. Prac. Series � 20.146, Determining the Applicability of
Penal Code Section 6.02.

Dix and Dawson, 41 Tex. Prac. Series � 20.148, Defining a Required Culpable Mental
State.

Dix and Dawson, 41 Tex. Prac. Series � 20.149, Alleging a Required Culpable Mental
State -- in General.

Dix and Dawson, 41 Tex. Prac. Series � 20.153, Culpable Mental States Concerning
Aggravating Elements.

Dix and Dawson, 41 Tex. Prac. Series � 20.154, Offenses Requiring Multiple
Culpable Mental States.

Dix and Dawson, 41 Tex. Prac. Series � 20.146A, Section 6.02 as Applied to
Elements for Which No Culpable Mental State is Prescribed.

Civins, Hall & Sahs, 45 Tex. Prac. Series � 4.15, The Intent Element of
Environmental Crimes.

McCormick, Blackwell & Blackwell, 7A Tex. Prac. Series � 83.2, Complaint.

Civins, Hall & Sahs, 45 Tex. Prac. Series � 4.13, Initiation of Judicial
Enforcement Action.

NOTES OF DECISIONS

In general 1

Accidental homicide 5

Admissibility, evidence 20

Assaults 3

Burden of proof 19

Circumstantial evidence 21

Crimes against children, indictments and complaints 18

Defense of accident, instructions 24

Evidence 20-22

Evidence - Admissibility 20

Evidence - Circumstantial evidence 21
Evidence - Sufficiency of evidence 22

Failure to stop and render aid 10

Failure to stop and render aid, indictments and complaints 17

Homicide 4-6, 14

Homicide - In general 4

Homicide - Accidental homicide 5

Homicide - Indictments and complaints 14

Homicide - Lesser included offenses 6

Indictments and complaints 13-18

Indictments and complaints - In general 13

Indictments and complaints - Crimes against children 18

Indictments and complaints - Failure to stop and render aid 17

Indictments and complaints - Homicide 14

Indictments and complaints - Rape 15

Indictments and complaints - Weapons offenses 16

Instructions 23-28

Instructions - In general 23

Instructions - Defense of accident 24

Instructions - Lesser included offenses 27

Instructions - Necessity of instructions 28

Instructions - Requested instructions 26

Instructions - Sufficiency of instructions 25

Lesser included offenses, homicide 6

Lesser included offenses, instructions 27

Miscellaneous offenses 11

Necessity of instructions 28

Ordinances 12

Rape 7

Rape, indictments and complaints 15
Requested instructions 26

Robbery 8

Strict liability 2

Sufficiency of evidence 22

Sufficiency of instructions 25

Traffic offenses 9

Weapons offenses, indictments and complaints 16

1. In general

Criminal negligence, not simple negligence, is lowest degree of conduct for which
criminal responsibility may be imposed. Cole v. State (Cr.App. 1977) 556 S.W.2d
343. Criminal Law 23

Under this section, any violation of penal statute requires culpable mental state.
William Sommerville & Son, Inc. v. Carter (Civ.App. 1978) 571 S.W.2d 953, affirmed
584 S.W.2d 274. Criminal Law 21

Conviction for contributing to delinquency of minors, by allowing them to remain
on premises wherein intoxicating liquors were consumed, could be grounded on
reckless conduct as matter of law. Axelrod v. State (App. 1 Dist. 1988) 764 S.W.2d
296, petition for discretionary review granted, petition for discretionary review
dismissed 789 S.W.2d 594. Intoxicating Liquors 144

The silence of a statute about whether a culpable mental state is an element of
the offense leaves a presumption that one is. Aguirre v. State (Cr.App. 1999) 22
S.W.3d 463, modified on denial of rehearing. Criminal Law 312

The choice by the legislative and executive branches of the state government to
classify all offenses as crimes, and to subject offenders to procedural
consequences, supports the general presumption against strict liability. Aguirre
v. State (Cr.App. 1999) 22 S.W.3d 463, modified on denial of rehearing. Criminal
Law 307

Establishing the higher culpable mental state of intent or knowledge necessarily
establishes the lower culpable mental state of recklessness, for purpose of
determining whether one offense is lesser included offense of other. Benge v.
State (App. 14 Dist. 2002) 94 S.W.3d 31, petition for discretionary review
refused. Indictment And Information 191(.5)

2. Strict liability

Proof of offense of air pollution did not require establishment of culpable mental
state, since to require anything other than strict liability standard would be to
deny public the right to be protected from hazardous activities. Exxon Co., U.S.A.
v. State (App. 1 Dist. 1982) 646 S.W.2d 536, petition for discretionary review
refused. Environmental Law 744

For purposes of determining whether an offense is one of strict liability, a
statute's mere omission of a mental state cannot be construed as its plainly
dispensing with one; instead, the silence of a statute about whether a culpable
mental state is an element of the offense leaves a presumption that one is.
Thompson v. State (App. 14 Dist. 2001) 44 S.W.3d 171. Criminal Law 307

If applicable, the following features would indicate that the legislature intended
to impose liability without fault, or intended to dispense with a culpable mental
state: (1) a risk of serious harm to the public is likely to result from a
violation of the statute; (2) the legislative history of the statute indicates an
intention to dispense with fault; (3) the statute imposes less severe punishment
for its violation; (4) the accused has some opportunity to ascertain the true
facts as to why he is being charged with a violation without proof of fault; (5)
prosecuting officials will have much more difficulty proving the accused committed
the offense if the statute requires proof of mental culpability; and (6) the fewer
the number of prosecutions that are expected to occur, the more likely the
legislature meant to require the prosecuting officials to go into the issue of
fault. State v. Abdallah (App. 2 Dist. 2001) 64 S.W.3d 175, petition for
discretionary review refused. Criminal Law 21

3. Assaults

An assault committed by striking with a pistol is simple assault, notwithstanding
the person assaulted was wounded by the accidental discharge of the pistol used in
the assault, unless it is shown that a pistol was, when used in such a manner, a
deadly weapon; or that by means of such use of it serious bodily injury had been
inflicted, or that the assault was committed with premeditated design and by the
use of means calculated to inflict great bodily injury. Pierce v. State (App.
1886) 1 S.W. 463. Assault And Battery 53

4. Homicide--In general

The killing of a human being by another, whether intentional or unintentional and
regardless of whether the killing was accidentally or purposely done, is a
"homicide." Great Southern Life Ins. Co. v. Akins (Civ.App. 1937) 105 S.W.2d 902,
error refused. Homicide 504

Distinction to be drawn in determining if homicide is criminal is not whether act
is intentional or unintentional, but whether act is voluntary or involuntary;
evidence must show that defendant committed voluntary act with requisite culpable
mental state. Womble v. State (Cr.App. 1981) 618 S.W.2d 59. Homicide 504

Offense of murder, committed when a person intends to cause serious bodily injury
and commits an act clearly dangerous to human life that causes death of an
individual, is a result type of crime and requires a showing that a person, acting
with conscious objective or desire to create a substantial risk of death, serious
permanent disfigurement, or protracted loss or impairment of any bodily member or
organ, causes death of an individual, and also requires a showing that act
intended to cause serious bodily injury was objectively clearly dangerous to human
life. Lugo-Lugo v. State (Cr.App. 1983) 650 S.W.2d 72. Homicide 528
5. ---- Accidental homicide

Where a pistol accidentally dropped upon the floor is discharged and a person is
thereby killed, the defendant by whom the pistol was dropped is, under an
indictment for homicide, entitled to an acquittal. Hodge v. State (Cr.App. 1910)
60 Tex.Crim. 157, 131 S.W. 577. Homicide 762

To kill while playing with a gun believed to be unloaded, was no offense. McCray
v. State (Cr.App. 1911) 63 Tex.Crim. 522, 140 S.W. 442.

If homicide occurs through mistake as to pistol being on safety guard so that it
cannot be fired, or through mistake as to its being loaded, it is accidental, not
negligent, homicide. McPeak v. State (Cr.App. 1916) 80 Tex.Crim. 50, 187 S.W. 754.
Homicide 762

Where two persons were killed in one transaction, the fact that more than one shot
was fired does not, as a matter of law, render it unsusceptible of proof that both
were killed by one act, in one case intentional and in the other accidental, since
a series of shots may be fired with one volition. Spannell v. State (Cr.App. 1918)
83 Tex.Crim. 418, 203 S.W. 357. Criminal Law 739(4)

That accused was negligent or careless in discharging his pistol would not render
him guilty of "murder" for what otherwise would be an "accidental homicide." Burt
v. State (Cr.App. 1940) 140 Tex.Crim. 410, 145 S.W.2d 886. Homicide 762

A distinguishing element between "negligent homicide" and "accidental killing" is
that the act that causes death must be intentional in the former and unintentional
in the latter. Harris v. State (Cr.App. 1946) 150 Tex.Crim. 38, 198 S.W.2d 264.
Homicide 621; Homicide 762

An "accidental killing" arises when the act that causes the death is done
unintentionally. Harris v. State (Cr.App. 1946) 150 Tex.Crim. 38, 198 S.W.2d 264.
Homicide 762

The killing of another by accident and mistake by running into her with automobile
which defendant was operating while under the influence of intoxicating liquor was
not excusable homicide, since defendant was not prosecuting a lawful object in a
lawful manner. Flowers v. State (Cr.App. 1947) 150 Tex.Crim. 467, 202 S.W.2d 462,
supplemented 150 Tex.Crim. 467, 203 S.W.2d 539. Automobiles 346

An "unavoidable accident", as that term is used in negligent homicide cases, would
be one that could not have been reasonably anticipated and which occurred without
fault or failure of duty on part of person to whom occurrence is attributable.
Mayberry v. State (Cr.App. 1951) 156 Tex.Crim. 101, 239 S.W.2d 111. Homicide 762

6. ---- Lesser included offenses, homicide

Criminal negligence is a lesser culpable mental state than recklessness so as to
make criminally negligent homicide a lesser included offense of voluntary
manslaughter. Ormsby v. State (Cr.App.1979) 600 S.W.2d 782; Aliff v. State
(Cr.App.1982) 627 S.W.2d 166.

Culpable mental state of "reckless," as element of offense of aggravated assault,
is lesser culpable mental state than "intentional" and "knowing" and therefore is
included under canopy of higher culpable mental states of "intentional" and
"knowing" alleged in indictment for greater offense of attempted murder. Rocha v.
State (Cr.App.1982) 648 S.W.2d 298; Lee v. State (App. 1 Dist.1984) 671 S.W.2d
630.

Record reflecting that defendant undertook operation of a motor vehicle while in a
state of exhaustion, coupled with defendant's admission that he had consumed about
three beers on an empty stomach prior to driving vehicle, was sufficient to raise
issue whether defendant was aware but consciously disregarded a substantial and
unjustified risk that misconduct would result in death of deceased and was such as
to require an instruction on criminal negligence as a lesser included offense of
involuntary manslaughter. Ormsby v. State (Cr.App. 1979) 600 S.W.2d 782.
Automobiles 357(13); Automobiles 357(13); Automobiles 357(13)

7. Rape

Intent, knowledge or recklessness are the applicable mental states and suffice to
establish criminal responsibility for offense of rape. Braxton v. State (Cr.App.
1975) 528 S.W.2d 844. Rape 5

A culpable mental state is an essential element of the offense of aggravated rape;
the culpable mental state is one of knowledge and intent. Banks v. State (Cr.App.
1979) 586 S.W.2d 518. Rape 1

An essential element of offense of aggravated rape based on theory that submission
was compelled by threat of death, serious bodily injury, or kidnapping to be
imminently inflicted is culpable mental state of intent, knowledge, or
recklessness. North v. State (Cr.App. 1980) 598 S.W.2d 634. Rape 5

8. Robbery

Fact that lesser included offense of robbery may be committed by culpable mental
state of recklessness even though not alleged in the indictment for the greater
offense of aggravated robbery does not preclude a charge thereon since by
definition recklessness is a lower culpable mental state than "intentional" or
"knowing." Little v. State (Cr.App. 1983) 659 S.W.2d 425. Robbery 27(5)

9. Traffic offenses

Culpable mental state is not requisite for charging offense of driving automobile
while intoxicated, speeding, or for many other traffic type offenses. Honeycutt v.
State (Cr.App. 1981) 627 S.W.2d 417. Automobiles 351.1

Legislature, through enactment of this section and � 1.03 and providing that
provisions of certain titles of Penal Code apply to offenses defined by Civil
Statutes unless statute defining offense provides otherwise, did not intend to
require proof of culpable mental state for offense of driving while license
suspended. Clayton v. State (App. 7 Dist. 1983) 652 S.W.2d 810. Automobiles 352

Statutory language "by accident and mistake" for offense of intoxication assault
while operating vehicle dispenses with any mental element. Stidman v. State (App.
1 Dist. 1998) 981 S.W.2d 227. Automobiles 347
10. Failure to stop and render aid

The culpable mental state required for offense of failing to stop and render aid
is that accused had knowledge of circumstances surrounding his conduct, i.e., had
knowledge that an accident had occurred; such knowledge is an element of the
offense, and therefore must be alleged in the indictment. Goss v. State (Cr.App.
1979) 582 S.W.2d 782. Automobiles 336

This section applies to offense of failing to stop and render aid, even though
offense is located in civil statutes and not in Penal Code. Goss v. State (Cr.App.
1979) 582 S.W.2d 782. Automobiles 336

11. Miscellaneous offenses

Although � 46.05 pertaining to offense of possessing a pistol after being
convicted of a felony, does not by its own terms include the element of a culpable
mental state, requirement that defendant acted intentionally, knowingly or
recklessly would be inferred under this section stating requirement of
culpability. Hazel v. State (Cr.App. 1976) 534 S.W.2d 698. Weapons 4

Although � 30.02 governing criminal trespass does not prescribe a culpable mental
state, a culpable mental state of intentionally, knowingly, or recklessly acting
is required under this section prescribing such a mental state if the definition
of an offense does not prescribe a culpable mental state. West v. State (Cr.App.
1978) 567 S.W.2d 515. Trespass 76

Section 38.05 making it an offense if, with intent to hinder the arrest of
another, a person aids in providing the other with any means of avoiding arrest or
effecting escape prescribes only one mental state, that being "with intent" to
hinder arrest, and does nor prescribe a lesser culpable mental state which use of
the terms "knowingly" or "with knowledge" would have prescribed. Garcia v. State
(Cr.App. 1982) 640 S.W.2d 939. Obstructing Justice 1

Under subsec. (b) of this section, a culpable mental state is a required element
of the offense of endless chain scheme. Crawford v. State (Cr.App. 1983) 646
S.W.2d 936. Consumer Protection 50

Since � 36.09 prohibiting the offering of a gift to a public servant does not
prescribe a culpable mental state, the required mental state for such offense, is
either intent, knowledge, or recklessness. Hubbard v. State (App. 5 Dist. 1984)
668 S.W.2d 419, petition for discretionary review granted, remanded 739 S.W.2d
341, on remand 770 S.W.2d 31, petition for discretionary review refused, rehearing
on petition for discretionary review denied. Bribery 1(1)

Vernon's Ann.Civ.St. Title 132, � 9009a, governing offense of failure to keep
records of purchase of crafted precious metals, requires state to plead and prove
that accused dealer knew person from whom he purchased crafted precious metals was
not manufacturer or regular dealer, or that accused dealer was reckless with
respect to this circumstance; however, it imposes on accused dealer mandatory duty
to record all purchases made from persons he knows are not manufacturers or
regular dealers, and thus, plainly dispenses with culpability requirement with
respect to "nature of conduct" element. Pruett v. State (App. 3 Dist. 1985) 685
S.W.2d 411, petition for discretionary review refused. Trade Regulation 862.1
Municipal ordinance prohibiting conducting business in nude live entertainment
club within 1,000 feet of a school did not plainly dispense with requirement of
culpable mental state simply because it did not expressly require one; offense did
require a culpable mental state. Aguirre v. State (App. 8 Dist. 1998) 978 S.W.2d
605, petition for discretionary review granted, affirmed 22 S.W.3d 463, modified
on denial of rehearing. Municipal Corporations 622

General statutory culpability requirements applied to city ordinance prohibiting
touching customer or clothing of customer while engaging in certain sexually
oriented entertainment, and thus ordinance did not violate due process clause,
though it lacked express culpable mental state. Haddad v. State (App. 1 Dist.
1999) 9 S.W.3d 454. Constitutional Law 258(5); Obscenity 2.5

12. Ordinances

City ordinance's "no touch" provision, which prohibited touching between nude
performer and customer, did not burden more protected expression than was
essential to further city's interest in preventing prostitution, drug dealing, and
assault, and ordinance was thus not unconstitutionally overbroad, despite topless
bar's claim that, because ordinance did not specify requisite mental state, it
criminalized accidental or inadvertent touching; under Texas law, ordinance
required culpable mental state and, thus, did not criminalize inadvertent or
negligent touching. Hang On, Inc. v. City of Arlington, C.A.5 (Tex.)1995, 65 F.3d
1248. Constitutional Law 90.4(5)

Challengers to city ordinance generally prohibiting smoking in public places and
occupational environments established, as element for preliminary injunction,
substantial likelihood of success on merits as to claim that city would violate
Texas Penal Code if city, acting pursuant to ordinance, imposed misdemeanor fine
exceeding $500 but not exceeding $2,000 without proving culpable mental state of
recklessness or higher criminal intent; while ordinance was drafted when Texas
Local Government Code authorized $2,000 fine for violation of city public health
ordinance, on the day the ordinance took effect an amendment to Penal Code also
took effect, which limited misdemeanor fines to $500 in absence of proof of
culpable mental state of recklessness or higher criminal intent. Roark & Hardee
L.P. v. City of Austin, W.D.Tex.2005, 394 F.Supp.2d 911. Environmental Law 701

Municipality may not define offense to exclude application of this section.
Honeycutt v. State (Cr.App. 1981) 627 S.W.2d 417. Municipal Corporations 592(1)

Definition of "sleeping in public" which was forbidden by ordinance, did not
plainly dispense with any culpable mental state because it failed to mention
mental state at all; therefore, requirement of culpable mental state was added to
definition of offense by operation of statute. Pollard v. State (App. 5 Dist.
1985) 687 S.W.2d 373, petition for discretionary review refused. Disorderly
Conduct 1

If enforced without requirement of culpable mental state, ordinance which forbids
sleeping and dozing in a public place would be unconstitutional. Pollard v. State
(App. 5 Dist. 1985) 687 S.W.2d 373, petition for discretionary review refused.
Disorderly Conduct 1

Ordinances criminalizing operation of sexually oriented business without permit
were not unconstitutionally vague for not expressly requiring culpable mental
state, given that ordinances also did not dispense with culpable mental state and
thus fell within provision of Penal Code requiring culpable mental state for
offenses defined by other laws unless definition plainly dispenses with mental
element. Kaczmarek v. State (App. 10 Dist. 1999) 986 S.W.2d 287. Constitutional
Law 82(10); Obscenity 2.5

Ordinance, which required operators, agents, and employees of adult arcades to
ensure that a direct line of sight was maintained between the manager's station of
the arcade and the interior of the arcade viewing booths at all times that any
patron was present, did not manifest an intent to dispense with a culpable mental
state, and thus State would be required to prove that defendant violated the
ordinance with a mental state that was at least reckless. Robledo v. State (App. 1
Dist. 2003) 126 S.W.3d 150. Theaters And Shows 9

"No touch" provision of city code regulating sexually oriented businesses and
conduct of their employees was unconstitutional and void restriction on free
expression; provision failed to restrict protected conduct narrowly to do only
what was necessary to prevent "secondary effects" of adult cabarets. State v.
Howard (App. 5 Dist. 2005) 172 S.W.3d 190, rehearing overruled. Constitutional Law
90.4(1); Constitutional Law 90.4(5)

13. Indictments and complaints--In general

Indictment which alleged that offense of credit card abuse was committed
"knowingly and intentionally" sufficiently alleged a culpable mental state.
Baldwin v. State (Cr.App. 1976) 538 S.W.2d 109. Larceny 29

Where indictment in forgery prosecution alleged that act was committed "with
intent to defraud or harm another," which is essential mental element, indictment
was not fundamentally defective for failing to allege culpable mental state. Jones
v. State (Cr.App. 1978) 571 S.W.2d 191. Forgery 27

Indictment charging defendant with intentionally selling unregistered securities
was sufficient to charge a culpable mental state. Koah v. State (Cr.App. 1980) 604
S.W.2d 156. Securities Regulation 326

Indictment that is fundamentally defective for failing to allege a culpable mental
state does not allege any offense against the law and is utterly insufficient to
invoke jurisdiction of trial court and any conviction obtained thereunder is void.
Ex parte Kirby (Cr.App. 1981) 626 S.W.2d 533. Indictment And Information 88

Since culpable mental state was required by this section, complaint alleging
violation of municipal ordinance proscribing negligent collision, which did not
allege that defendant acted with intent, knowledge, recklessness or criminal
negligence, was fundamentally defective for failure to allege culpable mental
state. Honeycutt v. State (Cr.App. 1981) 627 S.W.2d 417. Municipal Corporations
639(1)

Omission of words "intent to promote or assist the commission of the offense" from
indictment under which defendant, a nonpublic official, was convicted of official
misconduct was not fundamental error as although defendant could not commit the
offense, as opposed to aiding the public official in committing the offense,
defendant could be charged as if he had directly committed the offense and
indictment facially complied with requirements of this section. Wooley v. State
(App. 3 Dist. 1982) 629 S.W.2d 867, review refused. Criminal Law 1032(5)

Indictment sufficiently charged a culpable mental state for the offense of theft
of an automobile, where the indictment charged that defendant unlawfully
appropriated the automobile with intent to deprive complainant of it. Miles v.
State (App. 12 Dist. 1982) 642 S.W.2d 827. Larceny 29

Burglary indictment against defendant which charged that defendant entered
building "unlawfully with intent to commit theft" sufficiently alleged defendant's
culpable mental state, and thus was sufficient to support defendant's subsequent
conviction. Latimer v. State (App. 14 Dist. 1983) 650 S.W.2d 497. Burglary 19

Indictment which alleged that defendant acted together with codefendant, when
codefendant committed aggravated robbery, was fundamentally defective because
indictment failed to allege that when defendant acted together with codefendant,
she did so "with intent," or that she acted with culpable mental state of either
"intentional" or "knowing." Thompson v. State (Cr.App. 1985) 697 S.W.2d 413.
Robbery 17(2)

14. ---- Homicide, indictments and complaints

Indictment alleging that defendant, intended to cause serious bodily injury to an
individual, committed an act clearly dangerous to human life by then and there
kicking individual in her abdomen, thereby causing individual's death, was not
fatally defective for failure to allege necessary element of a culpable mental
state since only showing required was that defendant intended to cause serious
bodily injury, committed an act clearly dangerous to human life, and caused death
of individual. Lugo-Lugo v. State (Cr.App. 1983) 650 S.W.2d 72. Homicide 834

Murder indictment which alleged that defendant "did unlawfully intentionally,
intending to cause serious bodily injury to" complainant was not fundamentally
defective for failing to allege culpable mental state, although it was unnecessary
to allege defendant "intentionally" intended to cause serious bodily injury. Goff
v. State (App. 14 Dist. 1983) 681 S.W.2d 619, petition for discretionary review
refused, rehearing granted, affirmed 720 S.W.2d 94. Homicide 834

15. ---- Rape, indictments and complaints

Indictment for attempted rape was fundamentally defective for failure to allege
any culpable mental state as required by this section, requiring reversal of
conviction and dismissal of indictment. Zachery v. State (Cr.App. 1977) 552 S.W.2d
136. Criminal Law 1167(1); Rape 21

Indictment that alleged that defendant "knowingly and intentionally had sexual
intercourse" with the complainant and further alleged that he compelled her
submission to such intercourse sufficiently alleged a culpable mental state in the
aggravation portion of the indictment for aggravated rape of a child. Jason v.
State (Cr.App. 1979) 589 S.W.2d 447. Rape 21

16. ---- Weapons offenses, indictments and complaints

Indictment, which alleged that petitioner carried on or about his person a handgun
on premises licensed for sale and consumption of alcoholic beverages, failed to
allege any culpable mental state as required by � 46.02 which provides that person
commits offense if he intentionally, knowingly or recklessly carries on or about
his person a handgun, and was therefore fundamentally defective. Ex parte Garcia
(Cr.App. 1976) 544 S.W.2d 432. Weapons 17(1)

Indictment charging unlawful possession of a firearm by a felon was fatally
defective for failure to allege any culpable mental state. Tew v. State (Cr.App.
1977) 551 S.W.2d 375. Weapons 17(1)

17. ---- Failure to stop and render aid, indictments and complaints

Indictment, charging defendant with offense of failing to stop and render aid,
which failed to allege that defendant knew that accident had occurred, failed to
allege required culpable mental state of offense, even though indictment did
allege that defendant did intentionally and knowingly drive and operate his
automobile. Goss v. State (Cr.App. 1979) 582 S.W.2d 782. Automobiles 351.1

Indictment alleging failure to stop and render aid failed to allege a culpable
mental state, in that allegation that injuries made necessity of treatment
apparent did not satisfy requirement that indictment allege that actor knew an
accident involving victim occurred. Salazar v. State (Cr.App. 1979) 589 S.W.2d
412. Automobiles 351.1

Felony information charging failure to stop and render aid which did not allege
knowledge that an accident had occurred was not fatally defective since
information expressly alleged that defendant intentionally and knowingly failed to
stop and render assistance and he could not have knowingly failed to render
assistance without having had knowledge that an accident had occurred. Abrego v.
State (Cr.App. 1980) 596 S.W.2d 891. Automobiles 351.1

Indictment alleging that defendant did intentionally and knowingly drive and
operate an automobile, but failing to allege that defendant knew that accident had
occurred, failed to allege requisite culpable mental state of offense of failure
to stop and render aid. Brown v. State (Cr.App. 1980) 600 S.W.2d 834. Automobiles
351.1

18. ---- Crimes against children, indictments and complaints

Indictment stating that defendant, "did then and there unlawfully with intent to
arouse the sexual desire of the Defendant have sexual contact * * *" sufficiently
alleged culpable mental state of defendant to charge indecency with child. Clark
v. State (Cr.App. 1977) 558 S.W.2d 887. Infants 20

Indictment which alleged that defendant engaged in sexual abuse of child "with
intent to arouse and gratify the sexual desire of" defendant was not subject to
motion to quash for failure to allege more general culpable mental state. Tapley
v. State (App. 4 Dist. 1984) 673 S.W.2d 284, petition for discretionary review
refused. Sodomy 5

19. Burden of proof

Proof of culpable mental state is not required in prosecutions for driving while
intoxicated; pleadings are not required to allege, and proof is not required to
show, that person who is charged with driving and operating a motor vehicle on a
public highway while intoxicated did so either intentionally, knowingly,
recklessly, or with criminal negligence. Owen v. State (Cr.App. 1975) 525 S.W.2d
164. Automobiles 352

Under this section and �� 21.02, 21.03, and 21.09, in order to establish criminal
responsibility for the offense of rape, aggravated rape, or rape of a child, State
must allege and prove that defendant acted intentionally, knowingly or recklessly.
Ex parte Smith (Cr.App. 1978) 571 S.W.2d 22. Rape 35(2)

State is required to establish requisite intent in order to prove guilt beyond a
reasonable doubt. Thomas v. State (App. 1 Dist. 1994) 886 S.W.2d 388, rehearing
denied, petition for discretionary review refused. Criminal Law 20

20. Evidence--admissibility

Where there was a plea of accidental homicide and an issue as to whether the
shooting was intentional, any circumstance or declaration showing accused's state
of mind and which would throw light on such issue was admissible. Singleton v.
State (Cr.App. 1909) 57 Tex.Crim. 560, 124 S.W. 92. Homicide 986; Homicide 987

21. ---- Circumstantial evidence

Even prior to Geesa decision abolishing rule that conviction based on
circumstantial evidence cannot be sustained if the circumstances do not exclude
every other reasonable hypothesis except that of the guilt of the defendant, the
exclusion of outstanding reasonable hypothesis analysis should not be used to test
the sufficiency of the circumstances relied upon to prove defendant's intent.
Skillern v. State (App. 3 Dist. 1994) 890 S.W.2d 849, rehearing overruled,
petition for discretionary review refused. Criminal Law 552(3); Criminal Law
1159.6

Proof of culpable mental state generally relies upon circumstantial evidence, as
intent can be inferred from acts, words, and conduct of the accused. Skillern v.
State (App. 3 Dist. 1994) 890 S.W.2d 849, rehearing overruled, petition for
discretionary review refused. Criminal Law 568

Intent may be inferred from acts, words, or conduct of accused, including
circumstances surrounding acts in which accused engages. Morris v. State (App. 6
Dist. 1994) 892 S.W.2d 205. Criminal Law 312

Intent of accused is not ordinarily determined by direct proof, as it is difficult
to prove what a defendant was thinking; rather, it is inferred from circumstantial
evidence. Morris v. State (App. 6 Dist. 1994) 892 S.W.2d 205. Criminal Law 568

Because intent is intangible, it can only be proved by circumstantial evidence.
Moyer v. State (App. 2 Dist. 1997) 948 S.W.2d 525, rehearing overruled, petition
for discretionary review refused. Criminal Law 568

Proof of a culpable mental state almost invariably depends upon circumstantial
evidence. Lee v. State (App. 12 Dist. 2000) 21 S.W.3d 532, rehearing overruled,
habeas corpus granted in part 2005 WL 774882, petition for discretionary review
refused, rehearing on petition for discretionary review denied, habeas corpus
denied 2006 WL 1305169. Criminal Law 568

Ordinarily, the culpable mental state must be inferred from the acts of the
accused or the surrounding circumstances, which include not only acts, but words
and conduct. Lee v. State (App. 12 Dist. 2000) 21 S.W.3d 532, rehearing overruled,
habeas corpus granted in part 2005 WL 774882, petition for discretionary review
refused, rehearing on petition for discretionary review denied, habeas corpus
denied 2006 WL 1305169. Criminal Law 312

Jury specifically found that defendant, as party to crime, used deadly weapon to
commit robbery such that trial court was authorized to enter an affirmative
finding in the judgment of conviction; by finding defendant guilty "as alleged in
indictment," that a deadly weapon was used, jury found that defendant intended
that a deadly weapon would be used during course of aggravated robbery, thereby
necessarily finding that defendant knew a deadly weapon would be used. Harris v.
State (App. 1 Dist. 2003) 2003 WL 360264, Unreported, petition for discretionary
review refused. Sentencing And Punishment 370

22. ---- Sufficiency of evidence

Mere evidence that accused did not know that the substance she sold was
intoxicating was insufficient to raise the issue that she acted by accident.
Mollenkopf v. State (Cr.App. 1912) 68 Tex.Crim. 598, 151 S.W. 799. Intoxicating
Liquors 239(4)

On a trial for homicide, in which accused claimed that he was intoxicated and that
deceased was shot accidentally, evidence was sufficient to support a conviction
for murder. Gomez v. State (Cr.App. 1914) 75 Tex.Crim. 239, 170 S.W. 711. Homicide
1205

Mere statement of state's witness that "The gun went off", did not, under
circumstances, establish that shooting was accidental. Sloan v. State (Cr.App.
1966) 409 S.W.2d 412. Homicide 1205

Because mental culpability is of nature such that it is generally inferred from
the circumstances under which the prohibited act occurred, trier of fact may infer
intent from any facts in evidence which tend to prove the existence of that
intent. Skillern v. State (App. 3 Dist. 1994) 890 S.W.2d 849, rehearing overruled,
petition for discretionary review refused. Criminal Law 312

Evidence was legally sufficient to support finding that juvenile recklessly caused
serious bodily injury to victim, for purpose of delinquency proceeding, when he
choked victim while playing "pass out"; juvenile admitted that choking someone was
dangerous, that he didn't think of the possibility the victim would hit the ground
if he passed out, and that he didn't plan on trying to catch the victim. In re
J.A.P. (App. 3 Dist. 2002) 2002 WL 31317256, Unreported. Infants 153

Evidence was legally sufficient to support finding that juvenile committed assault
on a public servant, in support of delinquency adjudication; teacher intervened in
an assault on an injured student, she informed the other students that she was a
teacher and commanded that they leave the injured student alone, and juvenile
continued to follow teacher and deliver blows, at least two of which struck
teacher. In re F.C. (App. 3 Dist. 2003) 2003 WL 21282766, Unreported. Infants 153

Proof that defendant knowingly discharged a firearm while in a state of voluntary
intoxication was sufficient to sustain his conviction for deadly conduct; State
was not required to prove a specific result. Wheaton v. State (App. 13 Dist. 2004)
2004 WL 103550, Unreported, withdrawn and superseded 129 S.W.3d 267. Assault And
Battery 48
23. Instructions--In general

Where accused was charged with killing deceased by discharging a pistol while
struggling with her husband, an instruction on negligent homicide, making
accused's guilt depend on whether he knew deceased was in danger of being killed,
is erroneous where there is no evidence that accused knew deceased was in same
room when struggle took place. Merritt v. State (Cr.App. 1919) 85 Tex.Crim. 565,
213 S.W. 941. Homicide 1492

An instruction that, if jury found from evidence that defendant shot decedent by
accident and not while intending to commit robbery, jury should acquit defendant,
was not subject to objection that it was a comment on weight of evidence, that it
restricted defendant's rights with reference to an affirmative charge on
accidental killing, that it was an undue emphasis on state's theory of case and
prejudicial and did not make an application of the law to the facts as testified
by defendant. Cook v. State (Cr.App. 1948) 152 Tex.Crim. 51, 211 S.W.2d 224.
Criminal Law 763(1); Criminal Law 811(1); Criminal Law 814(8); Homicide 1492

24. ---- Defense of accident, instructions

It is error to instruct that accused, if homicide was accidental, and if it was
not negligent or careless, is not guilty. McPeak v. State (Cr.App. 1916) 80
Tex.Crim. 50, 187 S.W. 754. Homicide 1492

In murder prosecution, where defendant testified that she was restrained of her
liberty by deceased, and drew pistol not with intent to kill him, but to induce
him to release her, and in the scuffle which ensued over the pistol it was
accidentally discharged, defendant was entitled to an instruction on accidental
discharge of pistol. Matterson v. State (Cr.App. 1941) 142 Tex.Crim. 250, 152
S.W.2d 352. Homicide 1492

In murder prosecution with defense that accused accidentally shot deceased,
accused was not entitled to a charge of negligent homicide. Simmons v. State
(Cr.App. 1943) 145 Tex.Crim. 619, 170 S.W.2d 742. Homicide 1456

In murder prosecution, instruction to acquit upon reasonable doubt that defendant
intended to kill deceased, or knew that gun was loaded, or knew that there was a
cartridge in chamber, or knew safety was off, was not erroneous on ground that it
was not an unconditional affirmative submission of defendant's defense that
shooting was accidental applying all facts in case. Robinson v. State (Cr.App.
1951) 156 Tex.Crim. 6, 238 S.W.2d 193. Homicide 1492

Murder prosecution instruction that fact that defendant was armed would not
deprive him of defense of accident did not restrict defendant's rights under his
defense of accident. Sloan v. State (Cr.App. 1966) 409 S.W.2d 412. Homicide 1492

Where evidence failed to raise issue of accident, no error could be predicated on
trial court's failure to charge jury in homicide prosecution on defense of
accident. Berry v. State (Cr.App. 1969) 442 S.W.2d 713. Criminal Law 814(8)

25. ---- Sufficiency of instructions
An instruction that if the jury believed from the evidence, or had a reasonable
doubt, that defendant drew his pistol, not to assault prosecutrix, but to protect
himself from danger taken from his standpoint at the time, and while endeavoring
to make prosecutrix and her companions talk to him relative to getting his wife
back, prosecutrix took hold of the barrel of the pistol, which, in the scuffle,
was accidentally discharged and prosecutrix was wounded, defendant should be found
not guilty, sufficiently presented the theory of accidental shooting.
Groszoehmigen v. State (Cr.App. 1909) 57 Tex.Crim. 241, 121 S.W. 1113. Homicide
1492

Where the issue was whether the killing a decedent was accidental or the result of
negligence, the court in its charge defined murder in the first and second
degrees, and negligent homicide in the first and second degrees, and stated that
if accused fired the pistol accidentally without intending to do so, and thereby
killed decedent, and if he did not intend to kill decedent, accused was not guilty
of negligence, sufficiently submitted the issue of accidental homicide.
Biggerstaff v. State (Cr.App. 1910) 59 Tex.Crim. 575, 129 S.W. 840. Homicide 1492

Charges that accused should be acquitted, if the jury had a reasonable doubt
whether he intended to kill or at the time he pointed his gun knew it was loaded
or cocked, affirmatively presented the issue of accidental homicide. Windham v.
State (Cr.App. 1915) 76 Tex.Crim. 209, 173 S.W. 661.

Failure to instruct that if accused did not know deceased was in vacant room and
pistol was fired without intent to injure or kill deceased, or jury had reasonable
doubt about matter, defendant should be acquitted, was error, though court
instructed generally on law of excusable homicide. Latta v. State (Cr.App. 1933)
124 Tex.Crim. 618, 64 S.W.2d 968. Homicide 1492

In murder prosecution, charge if jury believed, or were reasonably doubtful, that
shooting was by accidental discharge of shotgun they should acquit accused,
sufficiently conveyed idea that accused would not be guilty if gun had discharged
accidentally. Rankin v. State (Cr.App. 1936) 131 Tex.Crim. 174, 97 S.W.2d 212.
Homicide 1492

In murder prosecution, instruction that jury should acquit if they believed beyond
reasonable doubt that pistol was accidentally discharged in some unaccountable way
without intention on part of defendant, and that shot accidentally and without
intention struck deceased's body, was sufficient on question of intent, and
refusal to define word "voluntary" was not error. Beverly v. State (Cr.App. 1938)
134 Tex.Crim. 331, 115 S.W.2d 652. Criminal Law 800(7); Homicide 1492

Instruction that homicide is excusable when death of a human being happens by
accident, though caused by act of another, together with instruction that if
deceased and accused were fighting for possession of gun and while thus engaged,
it was accidentally discharged, accused should be acquitted, sufficiently defined
"excusable homicide." Phillips v. State (Cr.App. 1939) 137 Tex.Crim. 206, 128
S.W.2d 393. Homicide 1492

26. ---- Requested instructions

Where the court correctly submitted the issue of excusable homicide by accident or
misfortune, there was no error in refusing the defendant's special charge thereon.
Cooper v. State (1914) 72 Tex.Crim. 250, 161 S.W. 1094; Posos v. State (1925) 100
Tex.Crim. 54, 271 S.W. 902.
In prosecution of schoolboy for shooting teacher, where issue of accidental
discharge of pistol was not in case, court properly refused special charge
presenting it. Wilson v. State (Cr.App. 1916) 80 Tex.Crim. 442, 190 S.W. 155.
Homicide 1492

The refusal of a requested charge that, if defendant shot to stop or scare a
stranger he had just seen at his house, he should be acquitted, was not error,
where defendant did not claim he shot merely to scare, and the court, at
defendant's request, authorized acquittal if the jury found defendant called on
the intruder to stop, and that his pistol was accidentally discharged. Jacobs v.
State (Cr.App. 1919) 85 Tex.Crim. 505, 213 S.W. 628. Criminal Law 829(4)

Requested charge defining unavoidable accident as a sudden and unexpected
happening occurring without fault or negligence on part of any party connected
therewith was inapplicable in prosecution for negligent homicide against motorist,
since question of negligence on part of deceased or any party other than accused
would be immaterial. Mayberry v. State (Cr.App. 1951) 156 Tex.Crim. 101, 239
S.W.2d 111. Automobiles 357(13); Automobiles 357(13); Automobiles 357(13)

27. ---- Lesser included offenses, instructions

Jury finding that defendant knowingly caused serious bodily injury to children
necessarily encompassed finding that she recklessly caused them serious bodily
injury, where trial court's charge permitted jury to convict on lesser included
offense of reckless injury. Patterson v. State (App. 2 Dist. 2001) 46 S.W.3d 294,
appeal after new sentencing hearing 101 S.W.3d 150, petition for discretionary
review refused. Infants 20

28. ---- Necessity of instructions

Failure to include culpable mental state in application paragraph of jury charge
did not cause murder defendant egregious harm, and thus did not deny her fair and
impartial trial; abstract portion of charge properly set forth elements of murder
including the required mental state, and defendant admitted at trial that she
knowingly and intentionally shot victim. Lane v. State (App. 5 Dist. 1997) 957
S.W.2d 584, petition for discretionary review refused. Criminal Law 1172.1(3)

Where defendant does not object at trial to omission of culpable mental state in
application paragraph of jury charge, reversal is warranted only if defendant can
show the error caused him or her egregious harm, i.e., that he or she was denied
fair and impartial trial. Lane v. State (App. 5 Dist. 1997) 957 S.W.2d 584,
petition for discretionary review refused. Criminal Law 1038.1(4)

To determine whether egregious harm occurred as result of omission of culpable
mental state in application paragraph of jury charge, such that reversal is
warranted despite failure to object at trial, Court of Appeals examines entire
jury charge, state of the evidence including contested issues and weight of
probative evidence, argument of counsel, and any other information contained in
record. Lane v. State (App. 5 Dist. 1997) 957 S.W.2d 584, petition for
discretionary review refused. Criminal Law 1038.1(4)

Failing to include culpable mental state in application paragraph of jury charge
does not deny defendant a fair and impartial trial when defendant's culpable
mental state is not a contested issue. Lane v. State (App. 5 Dist. 1997) 957
S.W.2d 584, petition for discretionary review refused. Criminal Law 814(6)

Elements of reckless driving were included in facts required to establish
aggravated assault on a public servant as charged in indictment, as required for
defendant to be entitled to jury instruction on reckless driving as lesser-
included offense; the state attempted to establish that defendant used his vehicle
as deadly weapon in manner that he drove it, thus meeting "driving" element of
reckless driving, and defendant would have acted with deliberate and conscious
indifference to victim's safety by intentionally and knowingly threatening him
with imminent bodily injury, thus meeting "reckless" element of reckless driving.
Brown v. State (App. 1 Dist. 2005) 183 S.W.3d 728, rehearing overruled, petition
for discretionary review refused. Indictment And Information 191(.5)

V. T. C. A., Penal Code � 6.02, TX PENAL � 6.02
Current through the end of the 2006 3rd Called Session of the 79th Legislature.

� 2006 Thomson/West
END OF DOCUMENT

(C) 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
V.T.C.A., Penal Code � 6.02

Vernon's Texas Statutes and Codes Annotated Currentness

Penal Code (Refs & Annos)

Title 2. General Principles of Criminal Responsibility

Chapter 6. Culpability Generally (Refs & Annos)

� 6.02. Requirement of Culpability

(a) Except as provided in Subsection (b), a person does not commit an offense
unless he intentionally, knowingly, recklessly, or with criminal negligence
engages in conduct as the definition of the offense requires.

(b) If the definition of an offense does not prescribe a culpable mental state, a
culpable mental state is nevertheless required unless the definition plainly
dispenses with any mental element.

(c) If the definition of an offense does not prescribe a culpable mental state,
but one is nevertheless required under Subsection (b), intent, knowledge, or
recklessness suffices to establish criminal responsibility.

(d) Culpable mental states are classified according to relative degrees, from
highest to lowest, as follows:

(1) intentional;
(2) knowing;

(3) reckless;

(4) criminal negligence.

(e) Proof of a higher degree of culpability than that charged constitutes proof of
the culpability charged.

(f) An offense defined by municipal ordinance or by order of a county
commissioners court may not dispense with the requirement of a culpable mental
state if the offense is punishable by a fine exceeding the amount authorized by
Section 12.23.

CREDIT(S)

Acts 1973, 63rd Leg., p. 883, ch. 399, � 1, eff. Jan. 1, 1974. Amended by Acts
1993, 73rd Leg., ch. 900, � 1.01, eff. Sept. 1, 1994; Acts 2005, 79th Leg., ch.
1219, � 1, eff. Sept. 1, 2005.

HISTORICAL AND STATUTORY NOTES

2006 Electronic Pocket Part Update
2005 Legislation

Acts 2005, 79th Leg., ch. 1219, added subsec. (f).

Section 2 of Acts 2005, 79th Leg., ch. 1219 provides:

"The change in law made by this Act applies only to an offense committed on or
after the effective date of this Act. An offense committed before the effective
date of this Act is covered by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose. For purposes of this
section, an offense is committed before the effective date of this Act if any
element of the offense occurs before the effective date."

2003 Main Volume

Acts 1993, 73rd Leg., ch. 3, � 1, in subsecs. (a) and (c), following "Subsection
(b)", deleted "of this section".

Prior Laws:

Rev.P.C. 1879, arts. 576, 577.

Rev.P.C. 1895, arts. 681, 682.

Rev.P.C. 1911, arts. 1111, 1112.

Vernon's Ann.P.C. (1925) arts. 39, 1228, 1229.

CROSS REFERENCES
"Conduct" defined, see V.T.C.A., Penal Code � 1.07.

Intoxication and alcoholic beverage offenses, culpable mental state not required
for convictions, see V.T.C.A., Penal Code � 49.11.

"Person" defined, see V.T.C.A., Penal Code � 1.07.

LAW REVIEW COMMENTARIES

Aggravated robbery--Texas style. Jim D. Bowmer, Bob Burleson and Luther E. Jones,
Jr., 33 Baylor L.Rev. 947 (1981).

Annual survey of Texas law:

Criminal Law. Victoria Palacios, 53 SMU L. Rev. 797 (2000).

Criminal law--Culpable mental state. Mike McColloch and David W. Coody, 37 Sw.L.J.
379 (1983).

Indictments and motions to quash: Problems of Thomas v. State and Ferguson v.
State. 34 Baylor L.Rev. 459 (1982).

Indictments under new Texas Penal Code. Percy Foreman and Luther E. Jones, Jr., 15
Hous.L.Rev. 1 (1977).

Mens rea--problems with the Penal Code. 11 Hous.L.Rev. 1230 (1974).

Review of fundamental error in jury charges in Texas criminal cases. Wendell A.
Odom and Robert E. Valdez, 33 Baylor L.Rev. 749 (1981).

Unconstitutionality of criminal liability without fault: An argument for a
constitutional doctrine of mens rea. James J. Hippard, Sr. 10 Hous.L.Rev. 1039
(1973).

LIBRARY REFERENCES

2003 Main Volume

Criminal Law 19.
Westlaw Topic No. 110.

C.J.S. Criminal Law � 31.

RESEARCH REFERENCES

2006 Electronic Pocket Part Update
ALR Library

169 ALR 315, Comment Note.--Duty in Instructing Jury in Criminal Prosecution to
Explain and Define Offense Charged.
161 ALR 10, Test or Criterion of Term "Culpable Negligence," "Criminal
Negligence," or "Gross Negligence," Appearing in Statute Defining or Governing
Manslaughter.

150 ALR 743, Certiorari After Judgment to Test Sufficiency of Indictment or
Information as Regards the Offense Sought to be Charged.

146 ALR 655, Validity, Construction, and Application of Statutes or Ordinances
Penalizing One Who Enters or Remains in Dwelling After Having Been Forbidden to Do
So.

125 ALR 605, Necessity of Charging Matter of Aggravation in Indictment or
Information, to Justify Imposition of Higher Punishment Under a Statute Which
Varies Punishment According to Enormity of Offense.

Encyclopedias

TX Jur. 3d Automobiles � 463, Culpable Mental State; Driver's Knowledge of
Accident.

TX Jur. 3d Criminal Law � 77, Generally; Indictment.

TX Jur. 3d Criminal Law � 137, Generally; Requirement of Voluntary Act or
Omission.

TX Jur. 3d Criminal Law � 140, Generally; Requirement of Culpability.

TX Jur. 3d Criminal Law � 141, Degrees of Culpable Mental States.

TX Jur. 3d Criminal Law � 339, Indecency With a Child.

TX Jur. 3d Criminal Law � 828, Culpable Mental State.

TX Jur. 3d Criminal Law � 903, Generally; Culpable Mental State.

TX Jur. 3d Criminal Law � 1310, Generally; Power of State to Regulate.

TX Jur. 3d Criminal Law � 3233, Culpable Mental State.

TX Jur. 3d Zoning � 170, Sexually Oriented Business.

Treatises and Practice Aids

Charlton, 6 Tex. Prac. Series � 4.2, Acts or Omissions.

Charlton, 6 Tex. Prac. Series � 4.3, Requirement of Culpability.

McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 1.1, Commentary --
Complaints, Informations and Indictments.

McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 1.2, Model Complaint,
Information and Indictment.

McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 25.3, Unlawful Possession
of Firearm.

McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 28.4, Driving While
Intoxicated -- First Offense.

McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 53.2, Motion to Quash --
General.

McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 99.1, Commentary.

McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 99.2, Model Charge.

McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 109.1, Model for Dictating
Objections to the Court's Charge.

Dix and Dawson, 41 Tex. Prac. Series � 19.23, Showing that Accused Committed
Charged Offense -- in General.

Dix and Dawson, 41 Tex. Prac. Series � 20.141, Alleging the Necessary Mens Rea --
in General.

Dix and Dawson, 41 Tex. Prac. Series � 20.142, Culpable Mental State Requirements.

Dix and Dawson, 41 Tex. Prac. Series � 20.143, Penal Code s6.02's Requirements.

Dix and Dawson, 41 Tex. Prac. Series � 20.144, Alleging "Specific Intents" or
"Particular Culpable Mental States".

Dix and Dawson, 41 Tex. Prac. Series � 20.145, Alleging Other Required Culpable
Mental States.

Dix and Dawson, 41 Tex. Prac. Series � 20.146, Determining the Applicability of
Penal Code Section 6.02.

Dix and Dawson, 41 Tex. Prac. Series � 20.148, Defining a Required Culpable Mental
State.

Dix and Dawson, 41 Tex. Prac. Series � 20.149, Alleging a Required Culpable Mental
State -- in General.

Dix and Dawson, 41 Tex. Prac. Series � 20.153, Culpable Mental States Concerning
Aggravating Elements.

Dix and Dawson, 41 Tex. Prac. Series � 20.154, Offenses Requiring Multiple
Culpable Mental States.

Dix and Dawson, 41 Tex. Prac. Series � 20.146A, Section 6.02 as Applied to
Elements for Which No Culpable Mental State is Prescribed.

Civins, Hall & Sahs, 45 Tex. Prac. Series � 4.15, The Intent Element of
Environmental Crimes.

McCormick, Blackwell & Blackwell, 7A Tex. Prac. Series � 83.2, Complaint.

Civins, Hall & Sahs, 45 Tex. Prac. Series � 4.13, Initiation of Judicial
Enforcement Action.

NOTES OF DECISIONS
In general 1

Accidental homicide 5

Admissibility, evidence 20

Assaults 3

Burden of proof 19

Circumstantial evidence 21

Crimes against children, indictments and complaints 18

Defense of accident, instructions 24

Evidence 20-22

Evidence - Admissibility 20

Evidence - Circumstantial evidence 21

Evidence - Sufficiency of evidence 22

Failure to stop and render aid 10

Failure to stop and render aid, indictments and complaints 17

Homicide 4-6, 14

Homicide - In general 4

Homicide - Accidental homicide 5

Homicide - Indictments and complaints 14

Homicide - Lesser included offenses 6

Indictments and complaints 13-18

Indictments and complaints - In general 13

Indictments and complaints - Crimes against children 18

Indictments and complaints - Failure to stop and render aid 17

Indictments and complaints - Homicide 14

Indictments and complaints - Rape 15

Indictments and complaints - Weapons offenses 16

Instructions 23-28

Instructions - In general 23

Instructions - Defense of accident 24
Instructions - Lesser included offenses 27

Instructions - Necessity of instructions 28

Instructions - Requested instructions 26

Instructions - Sufficiency of instructions 25

Lesser included offenses, homicide 6

Lesser included offenses, instructions 27

Miscellaneous offenses 11

Necessity of instructions 28

Ordinances 12

Rape 7

Rape, indictments and complaints 15

Requested instructions 26

Robbery 8

Strict liability 2

Sufficiency of evidence 22

Sufficiency of instructions 25

Traffic offenses 9

Weapons offenses, indictments and complaints 16

1. In general

Criminal negligence, not simple negligence, is lowest degree of conduct for which
criminal responsibility may be imposed. Cole v. State (Cr.App. 1977) 556 S.W.2d
343. Criminal Law 23

Under this section, any violation of penal statute requires culpable mental state.
William Sommerville & Son, Inc. v. Carter (Civ.App. 1978) 571 S.W.2d 953, affirmed
584 S.W.2d 274. Criminal Law 21

Conviction for contributing to delinquency of minors, by allowing them to remain
on premises wherein intoxicating liquors were consumed, could be grounded on
reckless conduct as matter of law. Axelrod v. State (App. 1 Dist. 1988) 764 S.W.2d
296, petition for discretionary review granted, petition for discretionary review
dismissed 789 S.W.2d 594. Intoxicating Liquors 144

The silence of a statute about whether a culpable mental state is an element of
the offense leaves a presumption that one is. Aguirre v. State (Cr.App. 1999) 22
S.W.3d 463, modified on denial of rehearing. Criminal Law 312
The choice by the legislative and executive branches of the state government to
classify all offenses as crimes, and to subject offenders to procedural
consequences, supports the general presumption against strict liability. Aguirre
v. State (Cr.App. 1999) 22 S.W.3d 463, modified on denial of rehearing. Criminal
Law 307

Establishing the higher culpable mental state of intent or knowledge necessarily
establishes the lower culpable mental state of recklessness, for purpose of
determining whether one offense is lesser included offense of other. Benge v.
State (App. 14 Dist. 2002) 94 S.W.3d 31, petition for discretionary review
refused. Indictment And Information 191(.5)

2. Strict liability

Proof of offense of air pollution did not require establishment of culpable mental
state, since to require anything other than strict liability standard would be to
deny public the right to be protected from hazardous activities. Exxon Co., U.S.A.
v. State (App. 1 Dist. 1982) 646 S.W.2d 536, petition for discretionary review
refused. Environmental Law 744

For purposes of determining whether an offense is one of strict liability, a
statute's mere omission of a mental state cannot be construed as its plainly
dispensing with one; instead, the silence of a statute about whether a culpable
mental state is an element of the offense leaves a presumption that one is.
Thompson v. State (App. 14 Dist. 2001) 44 S.W.3d 171. Criminal Law 307

If applicable, the following features would indicate that the legislature intended
to impose liability without fault, or intended to dispense with a culpable mental
state: (1) a risk of serious harm to the public is likely to result from a
violation of the statute; (2) the legislative history of the statute indicates an
intention to dispense with fault; (3) the statute imposes less severe punishment
for its violation; (4) the accused has some opportunity to ascertain the true
facts as to why he is being charged with a violation without proof of fault; (5)
prosecuting officials will have much more difficulty proving the accused committed
the offense if the statute requires proof of mental culpability; and (6) the fewer
the number of prosecutions that are expected to occur, the more likely the
legislature meant to require the prosecuting officials to go into the issue of
fault. State v. Abdallah (App. 2 Dist. 2001) 64 S.W.3d 175, petition for
discretionary review refused. Criminal Law 21

3. Assaults

An assault committed by striking with a pistol is simple assault, notwithstanding
the person assaulted was wounded by the accidental discharge of the pistol used in
the assault, unless it is shown that a pistol was, when used in such a manner, a
deadly weapon; or that by means of such use of it serious bodily injury had been
inflicted, or that the assault was committed with premeditated design and by the
use of means calculated to inflict great bodily injury. Pierce v. State (App.
1886) 1 S.W. 463. Assault And Battery 53

4. Homicide--In general
The killing of a human being by another, whether intentional or unintentional and
regardless of whether the killing was accidentally or purposely done, is a
"homicide." Great Southern Life Ins. Co. v. Akins (Civ.App. 1937) 105 S.W.2d 902,
error refused. Homicide 504

Distinction to be drawn in determining if homicide is criminal is not whether act
is intentional or unintentional, but whether act is voluntary or involuntary;
evidence must show that defendant committed voluntary act with requisite culpable
mental state. Womble v. State (Cr.App. 1981) 618 S.W.2d 59. Homicide 504

Offense of murder, committed when a person intends to cause serious bodily injury
and commits an act clearly dangerous to human life that causes death of an
individual, is a result type of crime and requires a showing that a person, acting
with conscious objective or desire to create a substantial risk of death, serious
permanent disfigurement, or protracted loss or impairment of any bodily member or
organ, causes death of an individual, and also requires a showing that act
intended to cause serious bodily injury was objectively clearly dangerous to human
life. Lugo-Lugo v. State (Cr.App. 1983) 650 S.W.2d 72. Homicide 528

5. ---- Accidental homicide

Where a pistol accidentally dropped upon the floor is discharged and a person is
thereby killed, the defendant by whom the pistol was dropped is, under an
indictment for homicide, entitled to an acquittal. Hodge v. State (Cr.App. 1910)
60 Tex.Crim. 157, 131 S.W. 577. Homicide 762

To kill while playing with a gun believed to be unloaded, was no offense. McCray
v. State (Cr.App. 1911) 63 Tex.Crim. 522, 140 S.W. 442.

If homicide occurs through mistake as to pistol being on safety guard so that it
cannot be fired, or through mistake as to its being loaded, it is accidental, not
negligent, homicide. McPeak v. State (Cr.App. 1916) 80 Tex.Crim. 50, 187 S.W. 754.
Homicide 762

Where two persons were killed in one transaction, the fact that more than one shot
was fired does not, as a matter of law, render it unsusceptible of proof that both
were killed by one act, in one case intentional and in the other accidental, since
a series of shots may be fired with one volition. Spannell v. State (Cr.App. 1918)
83 Tex.Crim. 418, 203 S.W. 357. Criminal Law 739(4)

That accused was negligent or careless in discharging his pistol would not render
him guilty of "murder" for what otherwise would be an "accidental homicide." Burt
v. State (Cr.App. 1940) 140 Tex.Crim. 410, 145 S.W.2d 886. Homicide 762

A distinguishing element between "negligent homicide" and "accidental killing" is
that the act that causes death must be intentional in the former and unintentional
in the latter. Harris v. State (Cr.App. 1946) 150 Tex.Crim. 38, 198 S.W.2d 264.
Homicide 621; Homicide 762

An "accidental killing" arises when the act that causes the death is done
unintentionally. Harris v. State (Cr.App. 1946) 150 Tex.Crim. 38, 198 S.W.2d 264.
Homicide 762

The killing of another by accident and mistake by running into her with automobile
which defendant was operating while under the influence of intoxicating liquor was
not excusable homicide, since defendant was not prosecuting a lawful object in a
lawful manner. Flowers v. State (Cr.App. 1947) 150 Tex.Crim. 467, 202 S.W.2d 462,
supplemented 150 Tex.Crim. 467, 203 S.W.2d 539. Automobiles 346

An "unavoidable accident", as that term is used in negligent homicide cases, would
be one that could not have been reasonably anticipated and which occurred without
fault or failure of duty on part of person to whom occurrence is attributable.
Mayberry v. State (Cr.App. 1951) 156 Tex.Crim. 101, 239 S.W.2d 111. Homicide 762

6. ---- Lesser included offenses, homicide

Criminal negligence is a lesser culpable mental state than recklessness so as to
make criminally negligent homicide a lesser included offense of voluntary
manslaughter. Ormsby v. State (Cr.App.1979) 600 S.W.2d 782; Aliff v. State
(Cr.App.1982) 627 S.W.2d 166.

Culpable mental state of "reckless," as element of offense of aggravated assault,
is lesser culpable mental state than "intentional" and "knowing" and therefore is
included under canopy of higher culpable mental states of "intentional" and
"knowing" alleged in indictment for greater offense of attempted murder. Rocha v.
State (Cr.App.1982) 648 S.W.2d 298; Lee v. State (App. 1 Dist.1984) 671 S.W.2d
630.

Record reflecting that defendant undertook operation of a motor vehicle while in a
state of exhaustion, coupled with defendant's admission that he had consumed about
three beers on an empty stomach prior to driving vehicle, was sufficient to raise
issue whether defendant was aware but consciously disregarded a substantial and
unjustified risk that misconduct would result in death of deceased and was such as
to require an instruction on criminal negligence as a lesser included offense of
involuntary manslaughter. Ormsby v. State (Cr.App. 1979) 600 S.W.2d 782.
Automobiles 357(13); Automobiles 357(13); Automobiles 357(13)

7. Rape

Intent, knowledge or recklessness are the applicable mental states and suffice to
establish criminal responsibility for offense of rape. Braxton v. State (Cr.App.
1975) 528 S.W.2d 844. Rape 5

A culpable mental state is an essential element of the offense of aggravated rape;
the culpable mental state is one of knowledge and intent. Banks v. State (Cr.App.
1979) 586 S.W.2d 518. Rape 1

An essential element of offense of aggravated rape based on theory that submission
was compelled by threat of death, serious bodily injury, or kidnapping to be
imminently inflicted is culpable mental state of intent, knowledge, or
recklessness. North v. State (Cr.App. 1980) 598 S.W.2d 634. Rape 5

8. Robbery

Fact that lesser included offense of robbery may be committed by culpable mental
state of recklessness even though not alleged in the indictment for the greater
offense of aggravated robbery does not preclude a charge thereon since by
definition recklessness is a lower culpable mental state than "intentional" or
"knowing." Little v. State (Cr.App. 1983) 659 S.W.2d 425. Robbery 27(5)

9. Traffic offenses

Culpable mental state is not requisite for charging offense of driving automobile
while intoxicated, speeding, or for many other traffic type offenses. Honeycutt v.
State (Cr.App. 1981) 627 S.W.2d 417. Automobiles 351.1

Legislature, through enactment of this section and � 1.03 and providing that
provisions of certain titles of Penal Code apply to offenses defined by Civil
Statutes unless statute defining offense provides otherwise, did not intend to
require proof of culpable mental state for offense of driving while license
suspended. Clayton v. State (App. 7 Dist. 1983) 652 S.W.2d 810. Automobiles 352

Statutory language "by accident and mistake" for offense of intoxication assault
while operating vehicle dispenses with any mental element. Stidman v. State (App.
1 Dist. 1998) 981 S.W.2d 227. Automobiles 347

10. Failure to stop and render aid

The culpable mental state required for offense of failing to stop and render aid
is that accused had knowledge of circumstances surrounding his conduct, i.e., had
knowledge that an accident had occurred; such knowledge is an element of the
offense, and therefore must be alleged in the indictment. Goss v. State (Cr.App.
1979) 582 S.W.2d 782. Automobiles 336

This section applies to offense of failing to stop and render aid, even though
offense is located in civil statutes and not in Penal Code. Goss v. State (Cr.App.
1979) 582 S.W.2d 782. Automobiles 336

11. Miscellaneous offenses

Although � 46.05 pertaining to offense of possessing a pistol after being
convicted of a felony, does not by its own terms include the element of a culpable
mental state, requirement that defendant acted intentionally, knowingly or
recklessly would be inferred under this section stating requirement of
culpability. Hazel v. State (Cr.App. 1976) 534 S.W.2d 698. Weapons 4

Although � 30.02 governing criminal trespass does not prescribe a culpable mental
state, a culpable mental state of intentionally, knowingly, or recklessly acting
is required under this section prescribing such a mental state if the definition
of an offense does not prescribe a culpable mental state. West v. State (Cr.App.
1978) 567 S.W.2d 515. Trespass 76

Section 38.05 making it an offense if, with intent to hinder the arrest of
another, a person aids in providing the other with any means of avoiding arrest or
effecting escape prescribes only one mental state, that being "with intent" to
hinder arrest, and does nor prescribe a lesser culpable mental state which use of
the terms "knowingly" or "with knowledge" would have prescribed. Garcia v. State
(Cr.App. 1982) 640 S.W.2d 939. Obstructing Justice 1
Under subsec. (b) of this section, a culpable mental state is a required element
of the offense of endless chain scheme. Crawford v. State (Cr.App. 1983) 646
S.W.2d 936. Consumer Protection 50

Since � 36.09 prohibiting the offering of a gift to a public servant does not
prescribe a culpable mental state, the required mental state for such offense, is
either intent, knowledge, or recklessness. Hubbard v. State (App. 5 Dist. 1984)
668 S.W.2d 419, petition for discretionary review granted, remanded 739 S.W.2d
341, on remand 770 S.W.2d 31, petition for discretionary review refused, rehearing
on petition for discretionary review denied. Bribery 1(1)

Vernon's Ann.Civ.St. Title 132, � 9009a, governing offense of failure to keep
records of purchase of crafted precious metals, requires state to plead and prove
that accused dealer knew person from whom he purchased crafted precious metals was
not manufacturer or regular dealer, or that accused dealer was reckless with
respect to this circumstance; however, it imposes on accused dealer mandatory duty
to record all purchases made from persons he knows are not manufacturers or
regular dealers, and thus, plainly dispenses with culpability requirement with
respect to "nature of conduct" element. Pruett v. State (App. 3 Dist. 1985) 685
S.W.2d 411, petition for discretionary review refused. Trade Regulation 862.1

Municipal ordinance prohibiting conducting business in nude live entertainment
club within 1,000 feet of a school did not plainly dispense with requirement of
culpable mental state simply because it did not expressly require one; offense did
require a culpable mental state. Aguirre v. State (App. 8 Dist. 1998) 978 S.W.2d
605, petition for discretionary review granted, affirmed 22 S.W.3d 463, modified
on denial of rehearing. Municipal Corporations 622

General statutory culpability requirements applied to city ordinance prohibiting
touching customer or clothing of customer while engaging in certain sexually
oriented entertainment, and thus ordinance did not violate due process clause,
though it lacked express culpable mental state. Haddad v. State (App. 1 Dist.
1999) 9 S.W.3d 454. Constitutional Law 258(5); Obscenity 2.5

12. Ordinances

City ordinance's "no touch" provision, which prohibited touching between nude
performer and customer, did not burden more protected expression than was
essential to further city's interest in preventing prostitution, drug dealing, and
assault, and ordinance was thus not unconstitutionally overbroad, despite topless
bar's claim that, because ordinance did not specify requisite mental state, it
criminalized accidental or inadvertent touching; under Texas law, ordinance
required culpable mental state and, thus, did not criminalize inadvertent or
negligent touching. Hang On, Inc. v. City of Arlington, C.A.5 (Tex.)1995, 65 F.3d
1248. Constitutional Law 90.4(5)

Challengers to city ordinance generally prohibiting smoking in public places and
occupational environments established, as element for preliminary injunction,
substantial likelihood of success on merits as to claim that city would violate
Texas Penal Code if city, acting pursuant to ordinance, imposed misdemeanor fine
exceeding $500 but not exceeding $2,000 without proving culpable mental state of
recklessness or higher criminal intent; while ordinance was drafted when Texas
Local Government Code authorized $2,000 fine for violation of city public health
ordinance, on the day the ordinance took effect an amendment to Penal Code also
took effect, which limited misdemeanor fines to $500 in absence of proof of
culpable mental state of recklessness or higher criminal intent. Roark & Hardee
L.P. v. City of Austin, W.D.Tex.2005, 394 F.Supp.2d 911. Environmental Law 701

Municipality may not define offense to exclude application of this section.
Honeycutt v. State (Cr.App. 1981) 627 S.W.2d 417. Municipal Corporations 592(1)

Definition of "sleeping in public" which was forbidden by ordinance, did not
plainly dispense with any culpable mental state because it failed to mention
mental state at all; therefore, requirement of culpable mental state was added to
definition of offense by operation of statute. Pollard v. State (App. 5 Dist.
1985) 687 S.W.2d 373, petition for discretionary review refused. Disorderly
Conduct 1

If enforced without requirement of culpable mental state, ordinance which forbids
sleeping and dozing in a public place would be unconstitutional. Pollard v. State
(App. 5 Dist. 1985) 687 S.W.2d 373, petition for discretionary review refused.
Disorderly Conduct 1

Ordinances criminalizing operation of sexually oriented business without permit
were not unconstitutionally vague for not expressly requiring culpable mental
state, given that ordinances also did not dispense with culpable mental state and
thus fell within provision of Penal Code requiring culpable mental state for
offenses defined by other laws unless definition plainly dispenses with mental
element. Kaczmarek v. State (App. 10 Dist. 1999) 986 S.W.2d 287. Constitutional
Law 82(10); Obscenity 2.5

Ordinance, which required operators, agents, and employees of adult arcades to
ensure that a direct line of sight was maintained between the manager's station of
the arcade and the interior of the arcade viewing booths at all times that any
patron was present, did not manifest an intent to dispense with a culpable mental
state, and thus State would be required to prove that defendant violated the
ordinance with a mental state that was at least reckless. Robledo v. State (App. 1
Dist. 2003) 126 S.W.3d 150. Theaters And Shows 9

"No touch" provision of city code regulating sexually oriented businesses and
conduct of their employees was unconstitutional and void restriction on free
expression; provision failed to restrict protected conduct narrowly to do only
what was necessary to prevent "secondary effects" of adult cabarets. State v.
Howard (App. 5 Dist. 2005) 172 S.W.3d 190, rehearing overruled. Constitutional Law
90.4(1); Constitutional Law 90.4(5)

13. Indictments and complaints--In general

Indictment which alleged that offense of credit card abuse was committed
"knowingly and intentionally" sufficiently alleged a culpable mental state.
Baldwin v. State (Cr.App. 1976) 538 S.W.2d 109. Larceny 29

Where indictment in forgery prosecution alleged that act was committed "with
intent to defraud or harm another," which is essential mental element, indictment
was not fundamentally defective for failing to allege culpable mental state. Jones
v. State (Cr.App. 1978) 571 S.W.2d 191. Forgery 27

Indictment charging defendant with intentionally selling unregistered securities
was sufficient to charge a culpable mental state. Koah v. State (Cr.App. 1980) 604
S.W.2d 156. Securities Regulation 326

Indictment that is fundamentally defective for failing to allege a culpable mental
state does not allege any offense against the law and is utterly insufficient to
invoke jurisdiction of trial court and any conviction obtained thereunder is void.
Ex parte Kirby (Cr.App. 1981) 626 S.W.2d 533. Indictment And Information 88

Since culpable mental state was required by this section, complaint alleging
violation of municipal ordinance proscribing negligent collision, which did not
allege that defendant acted with intent, knowledge, recklessness or criminal
negligence, was fundamentally defective for failure to allege culpable mental
state. Honeycutt v. State (Cr.App. 1981) 627 S.W.2d 417. Municipal Corporations
639(1)

Omission of words "intent to promote or assist the commission of the offense" from
indictment under which defendant, a nonpublic official, was convicted of official
misconduct was not fundamental error as although defendant could not commit the
offense, as opposed to aiding the public official in committing the offense,
defendant could be charged as if he had directly committed the offense and
indictment facially complied with requirements of this section. Wooley v. State
(App. 3 Dist. 1982) 629 S.W.2d 867, review refused. Criminal Law 1032(5)

Indictment sufficiently charged a culpable mental state for the offense of theft
of an automobile, where the indictment charged that defendant unlawfully
appropriated the automobile with intent to deprive complainant of it. Miles v.
State (App. 12 Dist. 1982) 642 S.W.2d 827. Larceny 29

Burglary indictment against defendant which charged that defendant entered
building "unlawfully with intent to commit theft" sufficiently alleged defendant's
culpable mental state, and thus was sufficient to support defendant's subsequent
conviction. Latimer v. State (App. 14 Dist. 1983) 650 S.W.2d 497. Burglary 19

Indictment which alleged that defendant acted together with codefendant, when
codefendant committed aggravated robbery, was fundamentally defective because
indictment failed to allege that when defendant acted together with codefendant,
she did so "with intent," or that she acted with culpable mental state of either
"intentional" or "knowing." Thompson v. State (Cr.App. 1985) 697 S.W.2d 413.
Robbery 17(2)

14. ---- Homicide, indictments and complaints

Indictment alleging that defendant, intended to cause serious bodily injury to an
individual, committed an act clearly dangerous to human life by then and there
kicking individual in her abdomen, thereby causing individual's death, was not
fatally defective for failure to allege necessary element of a culpable mental
state since only showing required was that defendant intended to cause serious
bodily injury, committed an act clearly dangerous to human life, and caused death
of individual. Lugo-Lugo v. State (Cr.App. 1983) 650 S.W.2d 72. Homicide 834

Murder indictment which alleged that defendant "did unlawfully intentionally,
intending to cause serious bodily injury to" complainant was not fundamentally
defective for failing to allege culpable mental state, although it was unnecessary
to allege defendant "intentionally" intended to cause serious bodily injury. Goff
v. State (App. 14 Dist. 1983) 681 S.W.2d 619, petition for discretionary review
refused, rehearing granted, affirmed 720 S.W.2d 94. Homicide 834

15. ---- Rape, indictments and complaints
Indictment for attempted rape was fundamentally defective for failure to allege
any culpable mental state as required by this section, requiring reversal of
conviction and dismissal of indictment. Zachery v. State (Cr.App. 1977) 552 S.W.2d
136. Criminal Law 1167(1); Rape 21

Indictment that alleged that defendant "knowingly and intentionally had sexual
intercourse" with the complainant and further alleged that he compelled her
submission to such intercourse sufficiently alleged a culpable mental state in the
aggravation portion of the indictment for aggravated rape of a child. Jason v.
State (Cr.App. 1979) 589 S.W.2d 447. Rape 21

16. ---- Weapons offenses, indictments and complaints

Indictment, which alleged that petitioner carried on or about his person a handgun
on premises licensed for sale and consumption of alcoholic beverages, failed to
allege any culpable mental state as required by � 46.02 which provides that person
commits offense if he intentionally, knowingly or recklessly carries on or about
his person a handgun, and was therefore fundamentally defective. Ex parte Garcia
(Cr.App. 1976) 544 S.W.2d 432. Weapons 17(1)

Indictment charging unlawful possession of a firearm by a felon was fatally
defective for failure to allege any culpable mental state. Tew v. State (Cr.App.
1977) 551 S.W.2d 375. Weapons 17(1)

17. ---- Failure to stop and render aid, indictments and complaints

Indictment, charging defendant with offense of failing to stop and render aid,
which failed to allege that defendant knew that accident had occurred, failed to
allege required culpable mental state of offense, even though indictment did
allege that defendant did intentionally and knowingly drive and operate his
automobile. Goss v. State (Cr.App. 1979) 582 S.W.2d 782. Automobiles 351.1

Indictment alleging failure to stop and render aid failed to allege a culpable
mental state, in that allegation that injuries made necessity of treatment
apparent did not satisfy requirement that indictment allege that actor knew an
accident involving victim occurred. Salazar v. State (Cr.App. 1979) 589 S.W.2d
412. Automobiles 351.1

Felony information charging failure to stop and render aid which did not allege
knowledge that an accident had occurred was not fatally defective since
information expressly alleged that defendant intentionally and knowingly failed to
stop and render assistance and he could not have knowingly failed to render
assistance without having had knowledge that an accident had occurred. Abrego v.
State (Cr.App. 1980) 596 S.W.2d 891. Automobiles 351.1

Indictment alleging that defendant did intentionally and knowingly drive and
operate an automobile, but failing to allege that defendant knew that accident had
occurred, failed to allege requisite culpable mental state of offense of failure
to stop and render aid. Brown v. State (Cr.App. 1980) 600 S.W.2d 834. Automobiles
351.1

18. ---- Crimes against children, indictments and complaints
Indictment stating that defendant, "did then and there unlawfully with intent to
arouse the sexual desire of the Defendant have sexual contact * * *" sufficiently
alleged culpable mental state of defendant to charge indecency with child. Clark
v. State (Cr.App. 1977) 558 S.W.2d 887. Infants 20

Indictment which alleged that defendant engaged in sexual abuse of child "with
intent to arouse and gratify the sexual desire of" defendant was not subject to
motion to quash for failure to allege more general culpable mental state. Tapley
v. State (App. 4 Dist. 1984) 673 S.W.2d 284, petition for discretionary review
refused. Sodomy 5

19. Burden of proof

Proof of culpable mental state is not required in prosecutions for driving while
intoxicated; pleadings are not required to allege, and proof is not required to
show, that person who is charged with driving and operating a motor vehicle on a
public highway while intoxicated did so either intentionally, knowingly,
recklessly, or with criminal negligence. Owen v. State (Cr.App. 1975) 525 S.W.2d
164. Automobiles 352

Under this section and �� 21.02, 21.03, and 21.09, in order to establish criminal
responsibility for the offense of rape, aggravated rape, or rape of a child, State
must allege and prove that defendant acted intentionally, knowingly or recklessly.
Ex parte Smith (Cr.App. 1978) 571 S.W.2d 22. Rape 35(2)

State is required to establish requisite intent in order to prove guilt beyond a
reasonable doubt. Thomas v. State (App. 1 Dist. 1994) 886 S.W.2d 388, rehearing
denied, petition for discretionary review refused. Criminal Law 20

20. Evidence--admissibility

Where there was a plea of accidental homicide and an issue as to whether the
shooting was intentional, any circumstance or declaration showing accused's state
of mind and which would throw light on such issue was admissible. Singleton v.
State (Cr.App. 1909) 57 Tex.Crim. 560, 124 S.W. 92. Homicide 986; Homicide 987

21. ---- Circumstantial evidence

Even prior to Geesa decision abolishing rule that conviction based on
circumstantial evidence cannot be sustained if the circumstances do not exclude
every other reasonable hypothesis except that of the guilt of the defendant, the
exclusion of outstanding reasonable hypothesis analysis should not be used to test
the sufficiency of the circumstances relied upon to prove defendant's intent.
Skillern v. State (App. 3 Dist. 1994) 890 S.W.2d 849, rehearing overruled,
petition for discretionary review refused. Criminal Law 552(3); Criminal Law
1159.6

Proof of culpable mental state generally relies upon circumstantial evidence, as
intent can be inferred from acts, words, and conduct of the accused. Skillern v.
State (App. 3 Dist. 1994) 890 S.W.2d 849, rehearing overruled, petition for
discretionary review refused. Criminal Law 568

Intent may be inferred from acts, words, or conduct of accused, including
circumstances surrounding acts in which accused engages. Morris v. State (App. 6
Dist. 1994) 892 S.W.2d 205. Criminal Law 312

Intent of accused is not ordinarily determined by direct proof, as it is difficult
to prove what a defendant was thinking; rather, it is inferred from circumstantial
evidence. Morris v. State (App. 6 Dist. 1994) 892 S.W.2d 205. Criminal Law 568

Because intent is intangible, it can only be proved by circumstantial evidence.
Moyer v. State (App. 2 Dist. 1997) 948 S.W.2d 525, rehearing overruled, petition
for discretionary review refused. Criminal Law 568

Proof of a culpable mental state almost invariably depends upon circumstantial
evidence. Lee v. State (App. 12 Dist. 2000) 21 S.W.3d 532, rehearing overruled,
habeas corpus granted in part 2005 WL 774882, petition for discretionary review
refused, rehearing on petition for discretionary review denied, habeas corpus
denied 2006 WL 1305169. Criminal Law 568

Ordinarily, the culpable mental state must be inferred from the acts of the
accused or the surrounding circumstances, which include not only acts, but words
and conduct. Lee v. State (App. 12 Dist. 2000) 21 S.W.3d 532, rehearing overruled,
habeas corpus granted in part 2005 WL 774882, petition for discretionary review
refused, rehearing on petition for discretionary review denied, habeas corpus
denied 2006 WL 1305169. Criminal Law 312

Jury specifically found that defendant, as party to crime, used deadly weapon to
commit robbery such that trial court was authorized to enter an affirmative
finding in the judgment of conviction; by finding defendant guilty "as alleged in
indictment," that a deadly weapon was used, jury found that defendant intended
that a deadly weapon would be used during course of aggravated robbery, thereby
necessarily finding that defendant knew a deadly weapon would be used. Harris v.
State (App. 1 Dist. 2003) 2003 WL 360264, Unreported, petition for discretionary
review refused. Sentencing And Punishment 370

22. ---- Sufficiency of evidence

Mere evidence that accused did not know that the substance she sold was
intoxicating was insufficient to raise the issue that she acted by accident.
Mollenkopf v. State (Cr.App. 1912) 68 Tex.Crim. 598, 151 S.W. 799. Intoxicating
Liquors 239(4)

On a trial for homicide, in which accused claimed that he was intoxicated and that
deceased was shot accidentally, evidence was sufficient to support a conviction
for murder. Gomez v. State (Cr.App. 1914) 75 Tex.Crim. 239, 170 S.W. 711. Homicide
1205

Mere statement of state's witness that "The gun went off", did not, under
circumstances, establish that shooting was accidental. Sloan v. State (Cr.App.
1966) 409 S.W.2d 412. Homicide 1205

Because mental culpability is of nature such that it is generally inferred from
the circumstances under which the prohibited act occurred, trier of fact may infer
intent from any facts in evidence which tend to prove the existence of that
intent. Skillern v. State (App. 3 Dist. 1994) 890 S.W.2d 849, rehearing overruled,
petition for discretionary review refused. Criminal Law 312

Evidence was legally sufficient to support finding that juvenile recklessly caused
serious bodily injury to victim, for purpose of delinquency proceeding, when he
choked victim while playing "pass out"; juvenile admitted that choking someone was
dangerous, that he didn't think of the possibility the victim would hit the ground
if he passed out, and that he didn't plan on trying to catch the victim. In re
J.A.P. (App. 3 Dist. 2002) 2002 WL 31317256, Unreported. Infants 153

Evidence was legally sufficient to support finding that juvenile committed assault
on a public servant, in support of delinquency adjudication; teacher intervened in
an assault on an injured student, she informed the other students that she was a
teacher and commanded that they leave the injured student alone, and juvenile
continued to follow teacher and deliver blows, at least two of which struck
teacher. In re F.C. (App. 3 Dist. 2003) 2003 WL 21282766, Unreported. Infants 153

Proof that defendant knowingly discharged a firearm while in a state of voluntary
intoxication was sufficient to sustain his conviction for deadly conduct; State
was not required to prove a specific result. Wheaton v. State (App. 13 Dist. 2004)
2004 WL 103550, Unreported, withdrawn and superseded 129 S.W.3d 267. Assault And
Battery 48

23. Instructions--In general

Where accused was charged with killing deceased by discharging a pistol while
struggling with her husband, an instruction on negligent homicide, making
accused's guilt depend on whether he knew deceased was in danger of being killed,
is erroneous where there is no evidence that accused knew deceased was in same
room when struggle took place. Merritt v. State (Cr.App. 1919) 85 Tex.Crim. 565,
213 S.W. 941. Homicide 1492

An instruction that, if jury found from evidence that defendant shot decedent by
accident and not while intending to commit robbery, jury should acquit defendant,
was not subject to objection that it was a comment on weight of evidence, that it
restricted defendant's rights with reference to an affirmative charge on
accidental killing, that it was an undue emphasis on state's theory of case and
prejudicial and did not make an application of the law to the facts as testified
by defendant. Cook v. State (Cr.App. 1948) 152 Tex.Crim. 51, 211 S.W.2d 224.
Criminal Law 763(1); Criminal Law 811(1); Criminal Law 814(8); Homicide 1492

24. ---- Defense of accident, instructions

It is error to instruct that accused, if homicide was accidental, and if it was
not negligent or careless, is not guilty. McPeak v. State (Cr.App. 1916) 80
Tex.Crim. 50, 187 S.W. 754. Homicide 1492

In murder prosecution, where defendant testified that she was restrained of her
liberty by deceased, and drew pistol not with intent to kill him, but to induce
him to release her, and in the scuffle which ensued over the pistol it was
accidentally discharged, defendant was entitled to an instruction on accidental
discharge of pistol. Matterson v. State (Cr.App. 1941) 142 Tex.Crim. 250, 152
S.W.2d 352. Homicide 1492

In murder prosecution with defense that accused accidentally shot deceased,
accused was not entitled to a charge of negligent homicide. Simmons v. State
(Cr.App. 1943) 145 Tex.Crim. 619, 170 S.W.2d 742. Homicide 1456

In murder prosecution, instruction to acquit upon reasonable doubt that defendant
intended to kill deceased, or knew that gun was loaded, or knew that there was a
cartridge in chamber, or knew safety was off, was not erroneous on ground that it
was not an unconditional affirmative submission of defendant's defense that
shooting was accidental applying all facts in case. Robinson v. State (Cr.App.
1951) 156 Tex.Crim. 6, 238 S.W.2d 193. Homicide 1492

Murder prosecution instruction that fact that defendant was armed would not
deprive him of defense of accident did not restrict defendant's rights under his
defense of accident. Sloan v. State (Cr.App. 1966) 409 S.W.2d 412. Homicide 1492

Where evidence failed to raise issue of accident, no error could be predicated on
trial court's failure to charge jury in homicide prosecution on defense of
accident. Berry v. State (Cr.App. 1969) 442 S.W.2d 713. Criminal Law 814(8)

25. ---- Sufficiency of instructions

An instruction that if the jury believed from the evidence, or had a reasonable
doubt, that defendant drew his pistol, not to assault prosecutrix, but to protect
himself from danger taken from his standpoint at the time, and while endeavoring
to make prosecutrix and her companions talk to him relative to getting his wife
back, prosecutrix took hold of the barrel of the pistol, which, in the scuffle,
was accidentally discharged and prosecutrix was wounded, defendant should be found
not guilty, sufficiently presented the theory of accidental shooting.
Groszoehmigen v. State (Cr.App. 1909) 57 Tex.Crim. 241, 121 S.W. 1113. Homicide
1492

Where the issue was whether the killing a decedent was accidental or the result of
negligence, the court in its charge defined murder in the first and second
degrees, and negligent homicide in the first and second degrees, and stated that
if accused fired the pistol accidentally without intending to do so, and thereby
killed decedent, and if he did not intend to kill decedent, accused was not guilty
of negligence, sufficiently submitted the issue of accidental homicide.
Biggerstaff v. State (Cr.App. 1910) 59 Tex.Crim. 575, 129 S.W. 840. Homicide 1492

Charges that accused should be acquitted, if the jury had a reasonable doubt
whether he intended to kill or at the time he pointed his gun knew it was loaded
or cocked, affirmatively presented the issue of accidental homicide. Windham v.
State (Cr.App. 1915) 76 Tex.Crim. 209, 173 S.W. 661.

Failure to instruct that if accused did not know deceased was in vacant room and
pistol was fired without intent to injure or kill deceased, or jury had reasonable
doubt about matter, defendant should be acquitted, was error, though court
instructed generally on law of excusable homicide. Latta v. State (Cr.App. 1933)
124 Tex.Crim. 618, 64 S.W.2d 968. Homicide 1492

In murder prosecution, charge if jury believed, or were reasonably doubtful, that
shooting was by accidental discharge of shotgun they should acquit accused,
sufficiently conveyed idea that accused would not be guilty if gun had discharged
accidentally. Rankin v. State (Cr.App. 1936) 131 Tex.Crim. 174, 97 S.W.2d 212.
Homicide 1492

In murder prosecution, instruction that jury should acquit if they believed beyond
reasonable doubt that pistol was accidentally discharged in some unaccountable way
without intention on part of defendant, and that shot accidentally and without
intention struck deceased's body, was sufficient on question of intent, and
refusal to define word "voluntary" was not error. Beverly v. State (Cr.App. 1938)
134 Tex.Crim. 331, 115 S.W.2d 652. Criminal Law 800(7); Homicide 1492

Instruction that homicide is excusable when death of a human being happens by
accident, though caused by act of another, together with instruction that if
deceased and accused were fighting for possession of gun and while thus engaged,
it was accidentally discharged, accused should be acquitted, sufficiently defined
"excusable homicide." Phillips v. State (Cr.App. 1939) 137 Tex.Crim. 206, 128
S.W.2d 393. Homicide 1492

26. ---- Requested instructions

Where the court correctly submitted the issue of excusable homicide by accident or
misfortune, there was no error in refusing the defendant's special charge thereon.
Cooper v. State (1914) 72 Tex.Crim. 250, 161 S.W. 1094; Posos v. State (1925) 100
Tex.Crim. 54, 271 S.W. 902.

In prosecution of schoolboy for shooting teacher, where issue of accidental
discharge of pistol was not in case, court properly refused special charge
presenting it. Wilson v. State (Cr.App. 1916) 80 Tex.Crim. 442, 190 S.W. 155.
Homicide 1492

The refusal of a requested charge that, if defendant shot to stop or scare a
stranger he had just seen at his house, he should be acquitted, was not error,
where defendant did not claim he shot merely to scare, and the court, at
defendant's request, authorized acquittal if the jury found defendant called on
the intruder to stop, and that his pistol was accidentally discharged. Jacobs v.
State (Cr.App. 1919) 85 Tex.Crim. 505, 213 S.W. 628. Criminal Law 829(4)

Requested charge defining unavoidable accident as a sudden and unexpected
happening occurring without fault or negligence on part of any party connected
therewith was inapplicable in prosecution for negligent homicide against motorist,
since question of negligence on part of deceased or any party other than accused
would be immaterial. Mayberry v. State (Cr.App. 1951) 156 Tex.Crim. 101, 239
S.W.2d 111. Automobiles 357(13); Automobiles 357(13); Automobiles 357(13)

27. ---- Lesser included offenses, instructions

Jury finding that defendant knowingly caused serious bodily injury to children
necessarily encompassed finding that she recklessly caused them serious bodily
injury, where trial court's charge permitted jury to convict on lesser included
offense of reckless injury. Patterson v. State (App. 2 Dist. 2001) 46 S.W.3d 294,
appeal after new sentencing hearing 101 S.W.3d 150, petition for discretionary
review refused. Infants 20

28. ---- Necessity of instructions

Failure to include culpable mental state in application paragraph of jury charge
did not cause murder defendant egregious harm, and thus did not deny her fair and
impartial trial; abstract portion of charge properly set forth elements of murder
including the required mental state, and defendant admitted at trial that she
knowingly and intentionally shot victim. Lane v. State (App. 5 Dist. 1997) 957
S.W.2d 584, petition for discretionary review refused. Criminal Law 1172.1(3)

Where defendant does not object at trial to omission of culpable mental state in
application paragraph of jury charge, reversal is warranted only if defendant can
show the error caused him or her egregious harm, i.e., that he or she was denied
fair and impartial trial. Lane v. State (App. 5 Dist. 1997) 957 S.W.2d 584,
petition for discretionary review refused. Criminal Law 1038.1(4)

To determine whether egregious harm occurred as result of omission of culpable
mental state in application paragraph of jury charge, such that reversal is
warranted despite failure to object at trial, Court of Appeals examines entire
jury charge, state of the evidence including contested issues and weight of
probative evidence, argument of counsel, and any other information contained in
record. Lane v. State (App. 5 Dist. 1997) 957 S.W.2d 584, petition for
discretionary review refused. Criminal Law 1038.1(4)

Failing to include culpable mental state in application paragraph of jury charge
does not deny defendant a fair and impartial trial when defendant's culpable
mental state is not a contested issue. Lane v. State (App. 5 Dist. 1997) 957
S.W.2d 584, petition for discretionary review refused. Criminal Law 814(6)

Elements of reckless driving were included in facts required to establish
aggravated assault on a public servant as charged in indictment, as required for
defendant to be entitled to jury instruction on reckless driving as lesser-
included offense; the state attempted to establish that defendant used his vehicle
as deadly weapon in manner that he drove it, thus meeting "driving" element of
reckless driving, and defendant would have acted with deliberate and conscious
indifference to victim's safety by intentionally and knowingly threatening him
with imminent bodily injury, thus meeting "reckless" element of reckless driving.
Brown v. State (App. 1 Dist. 2005) 183 S.W.3d 728, rehearing overruled, petition
for discretionary review refused. Indictment And Information 191(.5)

V. T. C. A., Penal Code � 6.02, TX PENAL � 6.02
Current through the end of the 2006 3rd Called Session of the 79th Legislature.

� 2006 Thomson/West
END OF DOCUMENT

(C) 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.