V.T.C.A., Penal Code � 6.03 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) � 6.03. Definitions of Culpable Mental States

(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. (b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. (c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint. (d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint. 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. HISTORICAL AND STATUTORY NOTES 2003 Main Volume Acts 1993, 73rd Leg., ch. 900, � 1.01, which amended the whole Penal Code, made no apparent change to this section.

Prior Laws: Rev.P.C. 1879, arts. 44, 576, 577, 581, 582. Rev.P.C. 1895, arts. 45, 681, 682, 686, 687. Rev.P.C. 1911, arts. 45, 111, 112, 1116, 1117. Vernon's Ann.P.C. (1925) arts. 39, 1228, 1229, 1232, 1233. CROSS REFERENCES "Conduct" defined, see V.T.C.A., Penal Code � 1.07. Indictment alleging acts of recklessness or criminal negligence, see Vernon's Ann.C.C.P. art. 21.15. Lessor included offenses, culpable mental state, see Vernon's Ann.C.C.P. art. 37.09. "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). Negligence: Reappraisal or its validity as basis for criminal liability and sanction. 20 S.Tex.L.J. 179 (1979). Particularity and precision in Texas indictments and informations: What is fundamental defect? 10 St.Mary's L.J. 281 (1978). Probability theory and constructive possession of narcotics. 17 Hous.L.Rev. 541 (1980). 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 26 ALR 5th 1, Necessity and Sufficiency of Showing, in Criminal Prosecution Under "Hit-And-Run" Statute, Accused's Knowledge of Accident, Injury, or Damage. 65 ALR 4th 838, Sufficiency of Evidence, for Purposes of Death Penalty, to Establish Statutory Aggravating Circumstance that Defendant was Previously Convicted of or Committed Other Violent Offense, Had History of Violent Conduct... 1 ALR 4th 38, Validity and Construction of Penal Statute Prohibiting Child Abuse. 20 ALR 3rd 473, What Amounts to Negligence Within Meaning of Statutes Penalizing Negligent Homicide by Operation of Motor Vehicle. 94 ALR 2nd 1353, Criminal Offense Predicated Upon Indecent Exposure. 19 ALR 2nd 1352, Question as to Who Are Accomplices, Within Rule Requiring Corroboration of Their Testimony, as One of Law or Fact. 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. 131 ALR 1322, Criminal Responsibility of One Co-Operating in Offense Which He is Incapable of Committing Personally. 115 ALR 357, Sufficiency of Indictment or Information Charging in Words of Statute Offense Relating to Operation of Automobile. 116 ALR 1459, Duty of Court to Instruct Regarding Exculpatory or Mitigating Statements in Confession or Admission Introduced by Prosecution. 110 ALR 1233, Validity, Construction, and Application of Statutes or Ordinances Relating to Decency as Regards Wearing Apparel or Lack of It. 102 ALR 1019, Absence of Evidence Supporting Charge of Lesser Degree of Homicide as Affecting Duty of Court to Instruct as To, or Right of Jury to Convict Of, Lesser Degree. 23 ALR 1554, Homicide by Wanton or Reckless Use of Firearm Without Express Intent to Inflict Injury. 7 ALR 135, Necessity of Repeating Definition of Legal or Technical Term in Different Parts of Instructions in Which it is Employed. 3 ALR 784, Admissibility in Criminal Prosecution of Evidence to Prove Other Crime as Affected by Degree or Sufficiency of the Evidence. Encyclopedias 13 Am. Jur. Trials 295, Vehicular Homicide. 14 Am. Jur. Trials 619, Juvenile Court Proceedings.

30 Am. Jur. Trials 1, Unloaded Gun Litigation. TX Jur. 3d Criminal Law � 16, Definitions. TX Jur. 3d Criminal Law � 140, Generally; Requirement of Culpability. TX Jur. 3d Criminal Law � 142, Intent. TX Jur. 3d Criminal Law � 145, Knowledge. TX Jur. 3d Criminal Law � 146, Recklessness. TX Jur. 3d Criminal Law � 147, Criminal Negligence. TX Jur. 3d Criminal Law � 172, Culpable Mental States. TX Jur. 3d Criminal Law � 179, Operation of a Motor Vehicle. TX Jur. 3d Criminal Law � 181, Transferred Intent. TX Jur. 3d Criminal Law � 188, Lesser Included Offenses. TX Jur. 3d Criminal Law � 199, Criminal Negligence. TX Jur. 3d Criminal Law � 306, Lesser Included Offenses -- Involuntary Manslaughter. TX Jur. 3d Criminal Law � 307, Lesser Included Offenses -- Negligent Homicide as Lesser Included Offense. TX Jur. 3d Criminal Law � 336, Generally; the Culpable Mental State. TX Jur. 3d Criminal Law � 347, Indecent Exposure. TX Jur. 3d Criminal Law � 420, Serious Bodily Injury. TX Jur. 3d Criminal Law � 459, Aggravating Circumstances -- Using Deadly Weapon. TX Jur. 3d Criminal Law � 466, in General; Degree of Offense -- Evidence. TX Jur. 3d Criminal Law � 467, Acts and Omissions, in General; Who is Protected; Definitions. TX Jur. 3d Criminal Law � 473, Endangerment of Child; Degree of Offense. TX Jur. 3d Criminal Law � 963, Reckless Damage or Destruction. TX Jur. 3d Criminal Law � 1229, Generally; Elements of Offense. TX Jur. 3d Criminal Law � 1449, Motor Vehicles. TX Jur. 3d Criminal Law � 1873, Accident. TX Jur. 3d Criminal Law � 2566, Requisites of Complaint. TX Jur. 3d Criminal Law � 2656, Requirement that Accusatory Pleading Allege Commission of Offense and Elements Thereof.

TX Jur. 3d Criminal Law � 2677, Recklessness or Criminal Negligence. TX Jur. 3d Criminal Law � 2718, Amendment and Abandonment Distinguished -- What Constitutes Matter of Form or Matter of Substance. TX Jur. 3d Criminal Law � 3242, When Charge is Not Required. TX Jur. 3d Criminal Law � 3491, to Show Intent or Knowledge. TX Jur. 3d Criminal Law � 4001, Who Are "Accomplice Witnesses". TX Jur. 3d Criminal Law � 4009, Intent. TX Jur. 3d Healing Arts & Institutions � 51, Generally; Definition. TX Jur. 3d Narcotics & Poisons � 190, Instruction Defining "Knowingly". Forms Texas Jurisprudence Pleading & Practice Forms 2d Ed � 142:3, Abortion Pursuant to Judicial Authorization. 3 West's Texas Forms � 1.4.4, Allegation of Entitlement to Additional/Exemplary Damages. Treatises and Practice Aids Charlton, 6 Tex. Prac. Series � 4.2, Acts or Omissions. Charlton, 6 Tex. Prac. Series � 4.3, Requirement of Culpability. Charlton, 6 Tex. Prac. Series � 10.4, Manslaughter and Criminally Negligent Homicide -- in General. Charlton, 6 Tex. Prac. Series � 22.4, Evading Arrest. McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 103.6, Criminal Negligence. McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 109.1, Model for Dictating Objections to the Court's Charge. Goode, Wellborn & Sharlot, 2A Tex. Prac. Series ART. 4447CC, Environmental, Health, and Safety Audit Privilege Act. Dix and Dawson, 40 Tex. Prac. Series � 6.38, Defendant's Right to Prevail on Franks Attack -- Required Showing of at Least Reckless Disregard. Dix and Dawson, 41 Tex. Prac. Series � 20.141, Alleging the Necessary Mens Rea -in General. Dix and Dawson, 41 Tex. Prac. Series � 20.149, Alleging a Required Culpable Mental State -- in General. Dix and Dawson, 43 Tex. Prac. Series � 36.12, Culpable Mental State -- Basic Requirement.

Dix and Dawson, 43 Tex. Prac. Series � 36.14, Culpable Mental State -- the Application Paragraph. Civins, Hall & Sahs, 45 Tex. Prac. Series � 4.15, The Intent Element of Environmental Crimes. Civins, Hall & Sahs, 46 Tex. Prac. Series � 20.14, Criminal Offenses and Penalties. Penick, 44A Tex. Prac. Series App. O, Appendix O. House Bill 4. NOTES OF DECISIONS In general 2 Aggravated assault, instructions 39 Aggravated assault with motor vehicle 20 Apparent danger 19 Criminal negligence Criminal negligence - In general 15 Criminal negligence - Generally, sufficiency of evidence 28 Criminal negligence - Instructions 34 Criminal negligence - Involuntary manslaughter 16 Criminal negligence - Negligent homicide 17 Criminally negligent homicide, instructions 35 Criminally negligent homicide, sufficiency of evidence 29 Deadly weapon, intentional conduct 9 Forgery, instructions 37 Forgery, intentional conduct 8 Homicide, generally, intentional conduct 5 Indictment, information or complaint 21-23 Indictment, information or complaint - In general 21 Indictment, information or complaint - Negligence 23 Indictment, information or complaint - Recklessness 22 Instructions 31-39 Instructions - In general 31

Instructions - Aggravated assault 39 Instructions - Criminal negligence 34 Instructions - Criminally negligent homicide 35 Instructions - Forgery 37 Instructions - Intentional conduct, generally 32 Instructions - Involuntary manslaughter 38 Instructions - Lesser-included offenses 36.5 Instructions - Murder 36 Instructions - Transferred intent 33 Intentional conduct Intentional conduct - In general 3 Intentional conduct - Deadly weapon 9 Intentional conduct - Forgery 8 Intentional conduct - Generally, instructions 32 Intentional conduct - Homicide, generally 5 Intentional conduct - Negligent homicide 6 Intentional conduct - Recklessness 4 Intentional conduct - Robbery 7 Intentional conduct - Sufficiency of evidence 26 Involuntary conduct, generally 18 Involuntary manslaughter, criminal negligence 16 Involuntary manslaughter, instructions 38 Juror selection 24 Knowledge 11, 12 Knowledge - In general 11 Knowledge - Murder 12 Lesser-included offenses, instructions 36.5 Motor vehicle recklessness 14 Murder, instructions 36

Murder, knowledge 12 Negligence, indictment, information or complaint 23 Negligent homicide, criminal negligence 17 Negligent homicide, intentional conduct 6 Presumptions 25 Questions for jury 30 Recklessness, generally 13 Recklessness, indictment, information or complaint 22 Recklessness, intentional conduct 4 Recklessness, sufficiency of evidence 27 Robbery, intentional conduct 7 Sufficiency of evidence 26-29 Sufficiency of evidence - Criminal negligence, generally 28 Sufficiency of evidence - Criminally negligent homicide 29 Sufficiency of evidence - Intentional conduct 26 Sufficiency of evidence - Recklessness 27 Transferred intent 10 Transferred intent, instructions 33 Validity 1

1. Validity Definition under this section of "intentional," which provided that in order to prove culpable mental state of intent, evidence must be presented which proves beyond reasonable doubt that it was accused's conscious objective or desire to engage in the conduct or cause the result, did not unconstitutionally shift burden of proof on intent to defendant. Houston v. State (App. 14 Dist.1982) 667 S.W.2d 157; Patterson v. State (App.1982) 632 S.W.2d 809, review refused. Definition of criminal negligence under this section as culpable mental state does not unconstitutionally shift to defendant burden of proof as to defendant's failure to perceive risk in prosecution for criminally negligent homicide. Thompson v. State (App. 14 Dist. 1984) 676 S.W.2d 173. Homicide 655 Definition of culpable mental state of criminal negligence in this section is not unconstitutionally vague, ambiguous, or overbroad. Thompson v. State (App. 14

Dist. 1984) 676 S.W.2d 173. Homicide

655; Constitutional Law

258(3.1)

Culpable mental state for involuntary manslaughter was sufficiently different from culpable mental state for criminally negligent homicide to satisfy due course of law provisions of the United States and Texas Constitutions and due process and equal protection clauses of the United States Constitution; definitions of recklessness and criminal negligence did not include any portion of the other, and statutes did not penalize same conduct. Lara v. State (App. 13 Dist. 1990) 800 S.W.2d 387, petition for discretionary review refused. Constitutional Law 250.1(2); Homicide 655; Constitutional Law 258(3.1) 2. In general "Negligent homicide" occurred in doing lawful or unlawful act carelessly or negligently, without apparent intention to kill, when there was apparent danger of causing death. Barfield v. State (Cr.App. 1931) 118 Tex.Crim. 394, 43 S.W.2d 106. Homicide 659 Conduct that is criminalized because of its result requires culpability as to that result. Cook v. State (App. 5 Dist. 1991) 824 S.W.2d 634, petition for discretionary review refused 828 S.W.2d 11. Criminal Law 20 Where otherwise innocent behavior becomes criminal because of circumstances under which it is done, culpable mental state is required as to those surrounding circumstances. Cook v. State (App. 5 Dist. 1991) 824 S.W.2d 634, petition for discretionary review refused 828 S.W.2d 11. Criminal Law 20 Proof of culpable mental state generally relies upon circumstantial evidence. Todd v. State (App. 8 Dist. 1995) 911 S.W.2d 807. Criminal Law 568 Ordinarily, proof of culpable mental state must be inferred from acts, words, and conduct of accused and surrounding circumstances. Todd v. State (App. 8 Dist. 1995) 911 S.W.2d 807. Criminal Law 568 When specific act as criminalized because of its very nature, culpable mental state applies to committing the act itself, and, thus, offense is "natureoriented"; conversely when unspecified conduct is criminalized because of its result, culpable mental state applies to the result, and offense is called "result-oriented." Herrera v. State (App. 4 Dist. 1996) 915 S.W.2d 94. Criminal Law 20 Criminal offense may contain any one or more of three conduct elements which alone or in combination form the overall behavior which legislature intended to criminalize, and it is those essential conduct elements to which a culpable mental state must apply. Washington v. State (App. 8 Dist. 1996) 930 S.W.2d 695. Criminal Law 20 When specific acts are criminalized because of their very nature, culpable mental state must apply to nature of the conduct, or committing act itself. Washington v. State (App. 8 Dist. 1996) 930 S.W.2d 695. Criminal Law 20 Unspecified conduct that is criminalized because of its result requires culpability as to result of conduct. Washington v. State (App. 8 Dist. 1996) 930 S.W.2d 695. Criminal Law 20 When otherwise innocent behavior becomes criminalized because of circumstances

under which it is done, culpable mental state is required as to circumstances surrounding offense. Washington v. State (App. 8 Dist. 1996) 930 S.W.2d 695. Criminal Law 20 Three conduct elements which may be involved in an offense are: (1) the nature of the conduct, (2) the result of the conduct, and (3) the circumstances surrounding the conduct, and an offense may apply any number of these conduct elements to a culpable mental state to form criminalized behavior. Rodriguez v. State (App. 13 Dist. 2000) 24 S.W.3d 499, rehearing overruled, petition for discretionary review refused. Criminal Law 20 Substantial and unjustifiable risk in committing criminal negligence must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint. Arnold v. State (App. 12 Dist. 2000) 36 S.W.3d 542, petition for discretionary review refused. Criminal Law 23 Statute defining culpable mental states allows each element of an offense to be placed into one of three categories: (1) the nature of the conduct, (2) the result of the conduct, or (3) the circumstances surrounding the conduct. Pitre v. State (App. 11 Dist. 2001) 44 S.W.3d 616, petition for discretionary review refused. Criminal Law 20 Witness was not accomplice witness as a matter of fact in capital murder prosecution, for purposes of rule requiring corroboration of accomplice witness testimony; witness did not have required culpable mental state, as no evidence existed that witness had the conscious desire to aid in the murder of victim or the lesser-included offense of robbery. Meeks v. State (App. 6 Dist. 2004) 135 S.W.3d 104, rehearing overruled, petition stricken, petition for discretionary review refused. Criminal Law 507(1) 3. Intentional conduct--In general When offense is only "result" or "nature of the conduct" offense, court should submit statutory definitions of "intentional" or "knowingly" which are limited to respective culpable mental state required. Murray v. State (App. 2 Dist. 1991) 804 S.W.2d 279, petition for discretionary review refused. Criminal Law 800(6) Person acts "intentionally" with respect to nature of conduct when it is person's conscious objective or desire to engage in conduct or cause result. Holmes v. State (App. 6 Dist. 1992) 830 S.W.2d 263. Criminal Law 20 When offense is only a "result" or "nature of conduct" offense, trial court should submit statutory definitions of "intentionally" or "knowingly" which are limited to specific conduct elements required for the offense. Skillern v. State (App. 3 Dist. 1994) 890 S.W.2d 849, rehearing overruled, petition for discretionary review refused. Criminal Law 772(5) When offense is both a "result" and a "nature of the conduct" offense, trial court should submit complete statutory definitions of "intentionally" or "knowingly," so that jury can consider both the results of the offender's conduct and the nature of the conduct. Skillern v. State (App. 3 Dist. 1994) 890 S.W.2d 849, rehearing overruled, petition for discretionary review refused. Criminal Law 772(5) 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 Both the result element of sexual assault charge against defendant, that defendant caused the penetration of the female sexual organ of the victim, and the natureof-conduct element, that defendant placed his sexual organ in the female sexual organ of the victim, required a culpable mental state; result element and natureof-conduct element became "culpable mental states" when combined with third element, without victim's consent. Pitre v. State (App. 11 Dist. 2001) 44 S.W.3d 616, petition for discretionary review refused. Rape 5 Evidence was sufficient to show that defendant intended to defraud and harm when she failed to disclose her husband's employment and income on application for Medicaid and food stamps and on later application for food stamps, so as to support convictions for tampering with a governmental record; defendant, who had filed for assistance in the past, had knowledge of husband's employment and income, and if defendant had disclosed that information, she would have been ineligible for Medicaid and would have received substantially reduced amount of food stamps. Christmann v. State (App. 8 Dist. 2005) 2005 WL 3214832, Unreported. Agriculture 2.6(5); Health 989; Records 22 4. ---- Recklessness, intentional conduct Reckless mental state is satisfied by evidence which indicates that defendant consciously disregarded known substantial and unjustifiable risk that serious bodily injury would occur; risk must be of such nature that its disregard constitutes gross deviation from standard of care an ordinary person would exercise under the circumstances. Navarro v. State (App. 3 Dist. 1993) 863 S.W.2d 191, rehearing overruled, petition for discretionary review refused 891 S.W.2d 648, rehearing on petition for discretionary review denied. Criminal Law 23 There was insufficient evidence to establish that defendant possessed requisite mental state for lesser included offense of negligent homicide, i.e., that he ought to have been aware of the substantial and unjustifiable risk, and thus, he was not entitled to jury instruction on negligent homicide as lesser included offense of murder, where evidence demonstrated that defendant comprehended basics of operating his gun, knew risk of harm or death involved with guns in general and disregarded it, and was aware of possibility of injury or death in exhibiting a gun he knew was loaded, and evidence would not permit jury to rationally find defendant guilty only of criminally negligent homicide. Kimbrough v. State (App. 1 Dist. 1995) 959 S.W.2d 634, petition for discretionary review refused. Homicide 1457 5. ---- Homicide, generally, intentional conduct Person need not intend both conduct and result in order to have culpable mental state for intentional killing; conduct is not rendered involuntary simply because accused did not intend result of conduct. Holmes v. State (App. 6 Dist.1992) 830 S.W.2d 263; Burnett v. State (App. 4 Dist. 1993) 865 S.W.2d 223, review refused. Culpable mental states of knowingly or intentionally must be applied to both conduct and results of conduct to justify conviction for murder; abstract definitions of culpable mental states should not be limited to results alone. Cook v. State (App. 5 Dist. 1992) 827 S.W.2d 426, petition for discretionary review

granted, reversed 884 S.W.2d 485, rehearing denied, on remand. Homicide

527

Implicit in statutory definitions of involuntary manslaughter and criminally negligent homicide is idea that defendant must not have intended resulting death or been aware that death was reasonably certain to occur. Burnett v. State (App. 4 Dist. 1993) 865 S.W.2d 223, petition for discretionary review refused. Homicide 663 Question in determining whether homicide is criminal is whether act was voluntary or involuntary, not whether homicide was intentional or not. Johnson v. State (App. 14 Dist. 1996) 915 S.W.2d 653, petition for discretionary review refused. Homicide 527 For purpose of determining intent of murder defendant at time he shot victim, defendant's actions in loading gun just prior to shooting victim, deliberately pointing gun at victim and pulling trigger "to get [victim] off of me", alleged by defendant to have been in self-defense, were voluntary actions. Johnson v. State (App. 14 Dist. 1996) 915 S.W.2d 653, petition for discretionary review refused. Homicide 527 Because murder defendant was charged with "result of conduct" offense, trial judge erred in submitting jury instruction that failed to limit definitions of "knowingly" and "intentionally" to results of defendant's conduct; however, error was harmless, as application paragraph specified that defendant had to have intentionally and knowingly "caused" victim's death, result being that facts, as applied to law in application paragraph, pointed jury to proper result oriented culpable mental state portion of definitions. Barcenes v. State (App. 4 Dist. 1997) 940 S.W.2d 739, petition for discretionary review refused. Homicide 1387; Criminal Law 1172.1(3) Trial proof would not have supported a rational finding that defendant knowingly killed victim but did not intentionally do so, and therefore trial counsels' failure to object to absence of a lesser-included offense instruction was not objectively unreasonable or prejudicial. Sterling v. Cockrell, N.D.Tex.2003, 2003 WL 21488632, Unreported, certificate of appealability granted in part, denied in part 100 Fed.Appx. 239, 2004 WL 1194679, affirmed 117 Fed.Appx. 328, 2004 WL 2664247, certiorari denied 125 S.Ct. 2304, 544 U.S. 1053, 161 L.Ed.2d 1096, rehearing denied 126 S.Ct. 15, 162 L.Ed.2d 918. Criminal Law 641.13(2.1) 6. ---- Negligent homicide, intentional conduct Distinction between "intentional" and "unintentional," for purposes of determining whether defendant is guilty of negligent homicide resulting in assessment of punishment or accidental homicide resulting in acquittal, is not valid distinction under 1974 Penal Code; rather, under this section, which defines four culpable mental states, person may act "unintentionally," i.e., without intent, and still commit criminal offense, provided he acts with knowledge, recklessness or negligence. Dockery v. State (Cr.App. 1975) 542 S.W.2d 644. Homicide 708; Homicide 762; Homicide 709 Former rule that negligent homicide may only result from intentional act remains correct statement if "intentional" means voluntary, but not if "intentional" carries meaning now given by subsec. (a) of this section as conscious objective or desire. Williams v. State (Cr.App. 1982) 630 S.W.2d 640. Homicide 708 Whether defendant acted intentionally or unintentionally is not distinguishing

factor in determining if homicide was criminal; instead, important issue is whether act was voluntary or involuntary. Burnett v. State (App. 4 Dist. 1993) 865 S.W.2d 223, petition for discretionary review refused. Homicide 527 Evidence was sufficient to support finding that defendant truck driver failed to perceive risk of death from his conduct, as required to support conviction for criminally negligent homicide arising from accident on bridge in construction zone; defendant drove his tractor-trailer onto bridge at speed between ten and 20 miles per hour above posted speed limit, despite slowing of all traffic around him, bouncing of his truck, his awareness that his right front tire might clip concrete barrier, and his awareness that there had been numerous accident-related deaths on bridge, defendant deviated from his normal routine to pass another vehicle, and defendant took his eyes off the road as he approached bridge. Stadt v. State (App. 14 Dist. 2003) 120 S.W.3d 428, petition for discretionary review granted, affirmed 182 S.W.3d 360, rehearing denied. Automobiles 342.1 7. ---- Robbery, intentional conduct Evidence that defendant went to scene of crime with a pistol in order to commit robbery established that the robbery was "intentional conduct" within the meaning of subsec. (a) of this section. Davis v. State (Cr.App. 1980) 597 S.W.2d 358, certiorari denied 101 S.Ct. 388, 449 U.S. 976, 66 L.Ed.2d 238, habeas corpus denied 866 S.W.2d 234. Criminal Law 568 Abstract statutory definitions of terms "intentionally" and "knowingly," which allowed jury to consider nature of defendant's conduct or results of his conduct, were applicable in context of defendant's prosecution for aggravated robbery. Bosier v. State (App. 1 Dist. 1989) 771 S.W.2d 221, petition for discretionary review refused. Criminal Law 772(5) 8. ---- Forgery, intentional conduct While the requisite culpable mental state under forgery statute (� 32.21) is "intent to defraud or harm," such culpable mental state apparently cannot be shown absent proof of knowledge that the instrument was forged. Stuebgen v. State (Cr.App. 1977) 547 S.W.2d 29. Forgery 44(3) 9. ---- Deadly weapon, intentional conduct Causing death of another by deadly weapon per se, is not, in itself, ambiguous act subject to different interpretations regarding defendant's culpable mental state. Burnett v. State (App. 4 Dist. 1993) 865 S.W.2d 223, petition for discretionary review refused. Homicide 532 Specific intent to kill may be inferred from defendant's use of deadly weapon per se. Burnett v. State (App. 4 Dist. 1993) 865 S.W.2d 223, petition for discretionary review refused. Homicide 908 Specific intent to kill may be inferred from use of deadly weapon. Ybarra v. State (App. 4 Dist. 1994) 890 S.W.2d 98, rehearing denied, petition for discretionary review refused. Homicide 908

Intent to kill may be inferred from use of deadly weapon per se, and if deadly weapon is used in deadly manner, inference is almost conclusive that defendant intended to kill. Davila v. State (App. 13 Dist. 1997) 952 S.W.2d 872, rehearing overruled, petition for discretionary review refused. Homicide 908 Specific intent to kill may be inferred from defendant's use of deadly weapon per se, such as firearm. Jones v. State (App. 2 Dist. 1998) 963 S.W.2d 177, petition for discretionary review refused, rehearing on petition for discretionary review denied. Homicide 908 10. Transferred intent Law of transferred intent, applicable when defendant intends to shoot one person but misses and strikes another, did not apply to case in which defendant knowingly aimed gun at victim, fired gun at victim, and thereby caused victim's death, even though defendant may have believed victim was another person. Martinez v. State (App. 4 Dist. 1992) 844 S.W.2d 279, petition for discretionary review refused. Homicide 555 Evidence was sufficient that defendant acted with requisite intent and committed act clearly dangerous to human life resulting in death, as required to sustain his conviction for murder under transferred intent doctrine, predicated on incident during which defendant struck victim and companion with his car following altercation with companion at parking lot; defendant and companion were members of rival gangs who had fought with each other on multiple occasions, and witnesses testified that they saw defendant aim his car at companion by driving at full speed over curb and onto sidewalk, instead of taking exits out of parking lot. Salazar v. State (App. 2 Dist. 2004) 131 S.W.3d 210, petition for discretionary review refused. Homicide 1135 11. Knowledge--In general Culpable mental state of "knowingly" has acquired technical meaning for purposes of this Code so that the words equivalent to the common everyday usage of such word would not be equivalent to the technical definition of term found in this Code. Chance v. State (Cr.App. 1978) 563 S.W.2d 812. Indictment And Information 110(2) 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 Person may act "unintentionally," in sense of not having as his conscious objective or desire to engage in conduct in question, and still commit criminal act, provided he acts with "knowledge", in the sense of awareness of nature of his conduct or that circumstances surrounding his conduct exist. Pine v. State (App. 14 Dist. 1994) 889 S.W.2d 625, rehearing overruled, petition for discretionary review refused, certiorari denied 116 S.Ct. 300, 516 U.S. 914, 133 L.Ed.2d 206. Criminal Law 20 State presented insufficient evidence that mother's failure to remove child from boyfriend's presence was with conscious objective or desire to cause serious

bodily injury, or with awareness that serious bodily injury was reasonably certain to result, to support her conviction of intentionally or knowingly causing serious bodily injury to child when boyfriend thereafter broke child's leg; there was no evidence that boyfriend ever seriously injured child before or that child's prior condition was serious threat to his health. Dusek v. State (App. 3 Dist. 1998) 978 S.W.2d 129, rehearing overruled, petition for discretionary review refused. Infants 20 Proof of knowing conduct requires more than showing that defendant was aware of but consciously disregarded substantial and unjustifiable risk that result would occur. Dusek v. State (App. 3 Dist. 1998) 978 S.W.2d 129, rehearing overruled, petition for discretionary review refused. Criminal Law 20 Evidence was sufficient to support defendant's conviction for knowingly causing bodily injury to his 18-month-old grandson by failing to protect him from his biological father who apparently inflicted fatal injuries upon child during day prior to his death; defendant knew that father had kicked defendant's dog on day that father injured child, causing dog to have a seizure, defendant had heard child's sister crying in past when she was with father and, when defendant went to her, he usually found some type of injury, defendant said "he realized he had allowed this to happen to that child and allowed the child to die," defendant knew father was very cruel and hurt his children, yet defendant had done nothing about it, and, on day of injury, defendant walked in and saw father sitting on top of the crying child. Payton v. State (App. 2 Dist. 2003) 106 S.W.3d 326, petition for discretionary review refused. Infants 20 Evidence was sufficient to support finding that defendant truck driver ought to have been aware of a substantial risk of death if he made an error crossing bridge in construction zone, as required to support conviction for criminally negligent homicide arising from accident; defendant had driven over bridge, which was nicknamed "death bridge," in same or similar tractor-trailer approximately 300 to 400 times, defendant was aware of conditions on bridge and of his safety obligations as driver of tractor-trailer, and defendant approached bridge while driving erratically and above posted speed limit. Stadt v. State (App. 14 Dist. 2003) 120 S.W.3d 428, petition for discretionary review granted, affirmed 182 S.W.3d 360, rehearing denied. Automobiles 342.1 Extraneous bad acts evidence relating to instances in which four-year-old victim and her sister, who were defendant's daughters, had played around apartment complex unsupervised was admissible, in prosecution for causing injury to a child by omission arising from drowning of victim in complex's hot tub, for limited purpose of showing culpable mental state of knowledge or recklessness. Prescott v. State (App. 4 Dist. 2003) 123 S.W.3d 506. Criminal Law 369.2(5); Criminal Law 370 Trial court erred by failing to define the term "knowingly" in the charge defining the offense of evading arrest, given that evading arrest statute required that the person "know" that she was fleeing from a peace officer, but defendant was not harmed by the omission of the statutory definition from the charge; primary officer made a video recording of the pursuit, which was offered in evidence, parties focused their argument on the issue of whether defendant knew a police officer was pursuing her, and the State did not argue that such knowledge was unnecessary. Ester v. State (App. 10 Dist. 2004) 151 S.W.3d 660. Criminal Law 1173.2(2); Obstructing Justice 18 Failing to fully define terms "knowingly" or "with knowledge" in application paragraph of jury charge in sexual assault prosecution was not egregious error requiring reversal of conviction where jury was instructed that State was required

to prove that defendant intentionally or knowingly caused penetration of complainant without her consent; definitions of "knowingly" or "with knowledge" under sexual assault statute were not substantially different as common usage. Tapia v. State (App. 8 Dist. 2002) 2002 WL 31195323, Unreported. Criminal Law 1173.2(2) Evidence was factually and legally sufficient to support defendant's conviction for causing serious bodily injury to his child; doctor testified that it would have taken a lot of force to break child's leg and that it was highly unlikely that the break could have been caused from fall, child's mother testified that defendant would get agitated if child cried too long and that defendant would play too rough with him, such as swinging him by his wrists and ankles, and mother described situations where defendant turned child onto his stomach and held his shoulder blades down to try to quiet him down and another time where defendant urinated on child's face after child had accidentally urinated on defendant. Rodgers v. State (App. 4 Dist. 2004) 2004 WL 1336226, Unreported. Infants 20 Evidence was sufficient to show that defendant knowingly made false entry on application for Medicaid and food stamps and on later application for food stamps, so as to support convictions for tampering with a governmental record; applications asked defendant to list all household income, defendant failed to disclose on first application that her husband received income from employer and instead restricted her answer to husband's $120 income from self-employment, and defendant failed to disclose on second application that husband received income from two employers. Christmann v. State (App. 8 Dist. 2005) 2005 WL 3214832, Unreported. Agriculture 2.6(5); Health 989; Records 22 12. ---- Murder, knowledge Conviction of murder on ground that defendant acted knowingly, or with knowledge, with respect to nature of her conduct or circumstances surrounding her conduct and was aware that her conduct would with reasonable certainty cause actual result rather than desired result was not warranted in absence of evidence that defendant knew at time rifle discharged during argument with third person that deceased was in house trailer toward which rifle was fired. Garrett v. State (App. 4 Dist. 1983) 656 S.W.2d 97, petition for discretionary review granted, affirmed in part, reversed in part 749 S.W.2d 784, rehearing on petition for discretionary review denied. Homicide 1135 Defendant could be convicted of murder even if he acted knowingly rather than intentionally; murder was committed if conscious objective or desire of defendant was to cause death or if defendant was aware that his conduct was reasonably certain to cause death. Cook v. State (App. 5 Dist. 1992) 827 S.W.2d 426, petition for discretionary review granted, reversed 884 S.W.2d 485, rehearing denied, on remand. Homicide 527 Jury instruction on knowing murder, for purposes of capital murder trial, could not define "knowingly" with regard to nature of defendant's conduct alone and instead had to refer to result of defendant's conduct. Medina v. State (Cr.App. 1999) 7 S.W.3d 633, rehearing denied, certiorari denied 120 S.Ct. 1840, 529 U.S. 1102, 146 L.Ed.2d 782, habeas corpus dismissed 2005 WL 3119179. Homicide 1387 Error in defining knowing murder in terms of nature of defendant's conduct alone rather than in terms of result of conduct, for purposes of capital murder trial, was not so egregious as to deprive defendant of fair trial, in light of correct instruction and sufficient evidence to support conviction on theory of intentional

murder, application instruction requiring jury to believe defendant intentionally or knowingly caused death, and fact that knowing murder would be both result-ofconduct and nature-of-conduct offense. Medina v. State (Cr.App. 1999) 7 S.W.3d 633, rehearing denied, certiorari denied 120 S.Ct. 1840, 529 U.S. 1102, 146 L.Ed.2d 782, habeas corpus dismissed 2005 WL 3119179. Criminal Law 1038.1(6) There was sufficient evidence that defendant knowingly or intentionally caused death of infant victim to support his capital murder conviction; autopsy determined child died from blunt force trauma to head, chest, and abdomen, and defendant confessed that he had punched child when child would not stop crying. Nelson v. State (App. 7 Dist. 2003) 2003 WL 1961052, Unreported, petition for discretionary review granted, reversed 129 S.W.3d 108, on remand 2004 WL 814285. Homicide 1139 13. Recklessness, generally Defendant's testimony that he thought that he was in his sister's apartment refuted any contention that he was acting recklessly in entering the complaining witness' apartment and thus precluded finding that he was guilty, not of burglary as charged, but only of criminal trespass. Daniels v. State (Cr.App. 1982) 633 S.W.2d 899. Trespass 88 Defendant's testimony that he intended to keep the victim away from him by swinging a knife in front of him showed that he was aware of the risk created by his action and used that risk to his advantage, so that the testimony did not raise an issue of criminal negligence, although it may have raised an issue as to recklessness. Mendieta v. State (App. 2 Dist. 1983) 659 S.W.2d 489, petition for discretionary review granted, affirmed 706 S.W.2d 651. Homicide 1327; Homicide 1333 Conviction for reckless conduct was supported by sufficient evidence, which indicated that defendant was on public road, in heavy fog, and proceeding illegally in northbound direction while another motorist was legally proceeding in southbound direction. Banister v. State (App. 9 Dist. 1988) 761 S.W.2d 849. Automobiles 355(4) Difference between criminally negligent homicide and involuntary manslaughter is culpable mental state required to establish each offense--criminal negligence for the former and recklessness for the latter. Lara v. State (App. 13 Dist. 1990) 800 S.W.2d 387, petition for discretionary review refused. Homicide 708; Homicide 709 Mental states of criminal negligence and recklessness cannot coexist. Conroy v. State (App. 1 Dist. 1992) 843 S.W.2d 67, petition for discretionary review refused. Criminal Law 23 "Recklessness" required to support involuntary manslaughter conviction involves conscious risk creation in which actor is aware of risk surrounding his or her conduct or results thereof, but consciously without justification disregards that result. State v. Shelton (App. 12 Dist. 1993) 869 S.W.2d 513. Homicide 709 Person acts recklessly if he is conscious of risk he has created and consciously disregards risk by engaging in the proscribed conduct. Green v. State (App. 6 Dist. 1994) 887 S.W.2d 230. Criminal Law 20 "Recklessly" is lesser culpable mental state of "intentionally" and "knowingly" as

alleged in indictment charging intentionally and knowingly causing serious bodily injury to child younger than 14 years. Zuliani v. State (App. 3 Dist. 1995) 903 S.W.2d 812, rehearing overruled, petition for discretionary review refused, appeal after new trial 2001 WL 725692. Indictment And Information 188 "Reckless conduct" involves conscious risk creation; that is, actor is aware of risk surrounding his conduct or results thereof, but consciously disregards that risk. Todd v. State (App. 8 Dist. 1995) 911 S.W.2d 807. Criminal Law 23 Thought process of defendant firing shotgun into crowd that was beating his brother was not consistent with reckless conduct, precluding need for jury instruction on reckless conduct as lesser included offense of attempted murder; reckless conduct required knowledge of and conscious disregard of hazard, and at one point defendant testified that he was too far away to hit anybody. Graham v. State (App. 9 Dist. 1997) 950 S.W.2d 724, petition for discretionary review granted, petition for discretionary review dismissed with per curiam opinion 991 S.W.2d 802, opinion withdrawn 976 S.W.2d 913. Criminal Law 795(2.50) Evidence that defendant operated vehicle at a speed of 50 miles per hour in area of city where the speed limit was 35 miles per hour, and that he ran through stop signs at a number of intersections, without regard to substantial risk of serious bodily injury to child passenger, sufficiently established reckless state of mind to support conviction for injury to a child in connection with resulting collision. LaSalle v. State (App. 9 Dist. 1998) 973 S.W.2d 467, petition for discretionary review refused. Automobiles 355(14) Evidence supported mother's conviction for recklessly causing serious bodily injury to child by failing to remove him from boyfriend's presence, thus warranting modification of judgment to reflect conviction of that lesser-included offense following appellate determination that evidence was insufficient to support conviction for intentionally or knowingly causing serious bodily injury to child, in light of evidence of other abuse and jury's apparent rejection of exculpatory defense testimony. Dusek v. State (App. 3 Dist. 1998) 978 S.W.2d 129, rehearing overruled, petition for discretionary review refused. Criminal Law 1192 Deletion of "in a crowd of people" from information charging misdemeanor offense of discharging a firearm in a metropolitan area was an "amendment," as opposed to an abandonment of surplusage or the removal of an alternative means of committing the offense, and thus that alteration could not occur on day of trial before trial began; while language in question was not legally essential to charge the offense, it described the essential element of recklessness. Garza v. State (App. 1 Dist. 2001) 50 S.W.3d 559. Indictment And Information 120; Indictment And Information 161(7) Evidence supported instruction on criminally negligent homicide as a lesserincluded offense of manslaughter, even if there was no declarative statement during trial that defendant truck driver did not know that his behavior was risky, in prosecution arising from accident on bridge in construction zone; witnesses testified that defendant was driving faster than conditions warranted, that defendant ignored signs that he was losing control of his rig, and that defendant took his eyes off road at the most critical stage of the bridge-crossing, and evidence also indicated that defendant was ordinarily a safety-conscious person who would have modified his behavior had he realized the danger of his actions. Stadt v. State (App. 14 Dist. 2003) 120 S.W.3d 428, petition for discretionary review granted, affirmed 182 S.W.3d 360, rehearing denied. Homicide 1458 14. Motor vehicle recklessness

There was sufficient evidence of recklessness to support conviction for aggravated assault, based on conduct of speeding while intoxicated, even though intoxication was not mentioned in indictment or jury charge, where arresting officer testified that there were no skid marks at site of accident where defendant's car rear-ended victim's car, that he could smell alcohol on defendant's breath and found several beer cans in defendant's car, and that defendant told him she had been drinking. Gill v. State (App. 9 Dist. 1998) 981 S.W.2d 517, petition for discretionary review refused. Automobiles 355(14) Although speeding is not necessarily reckless conduct, speeding while intoxicated is reckless conduct. Gill v. State (App. 9 Dist. 1998) 981 S.W.2d 517, petition for discretionary review refused. Automobiles 330 15. Criminal negligence--In general The definition of criminal negligence in subsec. (d) of this section adequately describes the prohibited conduct and gives proper notice of the conduct forbidden. Phillips v. State (Cr.App. 1979) 588 S.W.2d 378, appeal dismissed 100 S.Ct. 2933, 446 U.S. 961, 64 L.Ed.2d 819. Negligence 1801 Key to criminal negligence is found in failure of actor to perceive the risk. Alexander v. State (App. 9 Dist. 1983) 677 S.W.2d 557, petition for discretionary review refused. Criminal Law 23 For purposes of V.T.C.A., Penal Code � 6.03(d) defining criminal negligence, risk defendant created when he threw brick at woman who was carrying baby was of such a nature and degree that failure to perceive risk constituted a gross deviation from standard of care that an ordinary person would have exercised under the circumstances as viewed from defendant's standpoint. Corker v. State (App. 5 Dist. 1985) 691 S.W.2d 744. Homicide 708 "Criminal negligence" is less culpable mental state than recklessness; criminally negligent actor fails to perceive risk associated with conduct, while reckless actor perceives and consciously disregards such risk. Conroy v. State (App. 1 Dist. 1992) 843 S.W.2d 67, petition for discretionary review refused. Criminal Law 23 Person acts with criminal negligence when he should have been aware of substantial and unjustifiable risk he has created. Green v. State (App. 6 Dist. 1994) 887 S.W.2d 230. Criminal Law 23 "Criminal negligence" means the actor should have been aware of risk surrounding his conduct, but failed to perceive it. Jones v. State (App. 14 Dist. 1995) 900 S.W.2d 103. Criminal Law 23 "Criminal negligence" involves inattentive risk creation; that is, actor ought to be aware of risk surrounding his conduct or results thereof. Todd v. State (App. 8 Dist. 1995) 911 S.W.2d 807. Criminal Law 23 Actor is criminally negligent if he should have been aware of risk surrounding his conduct, but failed to perceive it. Johnson v. State (App. 14 Dist. 1996) 915 S.W.2d 653, petition for discretionary review refused. Criminal Law 23 Attendant circumstances from which defendant's mental state can be inferred, for

purposes of determining whether defendant's conduct is murder or negligent homicide, had to be collectively examined in light of definition of criminally negligent conduct. Kimbrough v. State (App. 1 Dist. 1995) 959 S.W.2d 634, petition for discretionary review refused. Homicide 1333 Person is "criminally negligent" if he should have been aware of the risk surrounding his conduct, but failed to perceive it. Ford v. State (App. 14 Dist. 2000) 14 S.W.3d 382. Criminal Law 23

16. ---- Involuntary manslaughter, criminal negligence Difference between culpable mental states required to establish criminally negligent homicide and involuntary manslaughter lies in whether actor himself perceives risk of harm his conduct creates. Aliff v. State (Cr.App. 1982) 627 S.W.2d 166. Homicide 662; Homicide 708 Criminally negligent homicide is lesser included offense of involuntary manslaughter. Lara v. State (App. 13 Dist. 1990) 800 S.W.2d 387, petition for discretionary review refused. Indictment And Information 189(8) Difference between two culpable mental states required to establish offenses of involuntary manslaughter and criminally negligent homicide lies in whether accused himself perceived risk of harm that his conduct created; essence of criminal negligence, and the factor that distinguishes it from involuntary manslaughter, is failure of accused to perceive the risk created by his conduct, which he should have perceived. Lewis v. State (App. 1 Dist. 1993) 866 S.W.2d 272, petition for discretionary review refused. Homicide 656; Homicide 662 Essence of "criminal negligence," and factor distinguishing it from "involuntary manslaughter," is failure of actor to perceive risk created by his conduct. Ybarra v. State (App. 4 Dist. 1994) 890 S.W.2d 98, rehearing denied, petition for discretionary review refused. Homicide 708 Other acts evidence consisting of conditions of dentist's dental board application, his deviation from applicable standard of care in sedating patient, his staff's lack of emergency training, his failure to warn patient of possible complications, limited emergency measures taken, and other evidence of conditions and circumstances under which dentist over-sedated patient was admissible in involuntary manslaughter trial to establish dentist's reckless state of mind. Davis v. State (App. 2 Dist. 1997) 955 S.W.2d 340, rehearing overruled, petition for discretionary review refused. Criminal Law 371(4) Evidence supported conviction of manslaughter, even if defendant was not actually aware of presence of victim's vehicle when defendant was in lane provided for traffic moving in opposite direction; there was evidence that defendant had exceeded speed limit by 42 miles per hour, defendant moved into oncoming traffic lane, and defendant remained in oncoming traffic lane where she could not have had adequate view of the road ahead. Newman v. State (App. 9 Dist. 2001) 49 S.W.3d 577, petition for discretionary review refused. Automobiles 355(13) 17. ---- Negligent homicide, criminal negligence Defendant's testimony that he pulled out his gun and started shooting because he

thought he was being attacked did not require that jury in defendant's murder prosecution be instructed on involuntary manslaughter or criminal negligence. Villarreal v. State (App. 13 Dist. 1986) 706 S.W.2d 689. Homicide 1457; Homicide 1458 Defendant's testimony that he fired gun to ward off assailant and that he "shot at" assailant showed that defendant perceived risk of harm his conduct created and, therefore, defendant was not entitled to have jury instructed on lesser included offense of criminally negligent homicide. Miranda v. State (App. 13 Dist. 1987) 739 S.W.2d 473. Homicide 1457 Question of whether gun used by defendant contained live rounds did not entitle defendant to instruction on lesser included offense of criminally negligent homicide, absent evidence that defendant believed gun was unloaded; defendant's testimony that he fired his gun with intention of keeping assailant away from him indicated defendant was actually aware of risk created by his action. Miranda v. State (App. 13 Dist. 1987) 739 S.W.2d 473. Homicide 1457 "Criminal negligence," in context of criminally negligent homicide, means that defendant should have been aware of risk but failed to perceive it. Burnett v. State (App. 4 Dist. 1993) 865 S.W.2d 223, petition for discretionary review refused. Homicide 708 Criminal negligent homicide is a lesser included offense of murder. Phipps v. State (App. 9 Dist. 1995) 904 S.W.2d 955. Indictment And Information 189(8) Evidence of alcohol consumption and of the manner in which defendant was driving shortly before he killed nine-year-old bicyclist by driving into him with his motorcycle was circumstantial evidence of defendant's criminally negligent state of mind at the time of homicide, not evidence of an offense extraneous to the offense alleged, and thus was admissible at retrial on punishment. Bryan v. State (App. 9 Dist. 1999) 990 S.W.2d 924. Criminal Law 1192 Conviction for criminally negligent homicide requires evidence showing that the defendant was unaware of the risk, or that he failed to perceive the risk created by his conduct. Rhodes v. State (App. 6 Dist. 1999) 997 S.W.2d 692, petition for discretionary review refused. Homicide 708 Evidence was sufficient to support finding that defendant truck driver ought to have been aware of a substantial risk of death if he made an error crossing bridge in construction zone, as required to support conviction for criminally negligent homicide arising from accident; defendant had driven over bridge, which was nicknamed "death bridge," in same or similar tractor-trailer approximately 300 to 400 times, defendant was aware of conditions on bridge and of his safety obligations as driver of tractor-trailer, and defendant approached bridge while driving erratically and above posted speed limit. Stadt v. State (App. 14 Dist. 2003) 120 S.W.3d 428, petition for discretionary review granted, affirmed 182 S.W.3d 360, rehearing denied. Automobiles 342.1 Defendant should have been aware of substantial, unjustifiable risk of driving log truck with maladjusted brakes, and thus, continued operation of truck despite risk constituted gross deviation from standard of care ordinary person would have exercised in those circumstances, as required to support conviction for criminal negligent homicide arising from accident that killed passenger of other vehicle; defendant had driven log truck for five years, defendant had statutory duty to inspect truck, including brakes, on daily basis, state trooper had issued citations to defendant for faulty brakes one week prior to accident and had declared truck "out of service" due to maladjustment, and trooper's inspection of

brakes following accident indicated that necessary repairs had not been performed before accident. Hookie v. State (App. 6 Dist. 2004) 136 S.W.3d 671. Automobiles 342.1 Defendant waived challenge to legal and factual sufficiency of evidence to support conviction for criminally negligent homicide, where defendant, who was charged with capital murder, did not object to submission of jury charge on criminally negligent homicide as lesser included offense. Bustillos v. State (App. 8 Dist. 2003) 2003 WL 1386948, Unreported, petition for discretionary review granted, petition for discretionary review dismissed 2004 WL 3092750. Criminal Law 1036.8 18. Involuntary conduct, generally An "unavoidable accident", as that term was 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 was attributable. Mayberry v. State (Cr.App. 1951) 156 Tex.Crim. 101, 239 S.W.2d 111. Homicide 762 Defendant's testimony that he pulled out knife and began swinging in order to keep victim away indicated defendant's awareness of risk and, thus, justified trial court's refusal to instruct on criminally negligent homicide which required evidence of unawareness of risk. Mendieta v. State (Cr.App. 1986) 706 S.W.2d 651. Homicide 1372 Just because part of conduct may be "involuntary" does not relieve defendant of responsibility and culpability for entire action when he or she is aware of risk and disregards it. Henderson v. State (App. 14 Dist. 1992) 825 S.W.2d 746, petition for discretionary review refused. Criminal Law 23 Defendant's conduct in killing victim is not rendered involuntary merely because he did not intend result of his conduct. Davila v. State (App. 13 Dist. 1997) 952 S.W.2d 872, rehearing overruled, petition for discretionary review refused. Homicide 762 19. Apparent danger In negligent homicide prosecution against truck driver, jury, in determining whether there was "apparent danger," was not bound to view situation from truck driver's standpoint. Vasquez v. State (Cr.App. 1932) 121 Tex.Crim. 478, 52 S.W.2d 1056. Automobiles 344 To constitute the crime of negligent homicide, an apparent danger of causing death of deceased or some other person had to appear from the negligent acts of the accused. Johnson v. State (Cr.App. 1951) 156 Tex.Crim. 23, 238 S.W.2d 766. Homicide 708 Whether apparent danger did in fact exist was not to be determined from viewpoint of accused alone, but rather from the facts as a whole. Johnson v. State (Cr.App. 1951) 156 Tex.Crim. 23, 238 S.W.2d 766. In prosecution for negligent homicide in operation of automobile, whether apparent danger of causing deceased's death existed must be determined, not from accused's viewpoint alone, but from facts as whole. Espinoza v. State (Cr.App. 1954) 160

Tex.Crim. 515, 272 S.W.2d 728. Automobiles

342.1

One operating motor vehicle on streets of residential section of city at speed of 60 to 75 miles per hour does an act accompanied by apparent danger of causing death. Espinoza v. State (Cr.App. 1954) 160 Tex.Crim. 515, 272 S.W.2d 728. Automobiles 342.1 Apparent danger was an element of the offense of negligent homicide. Kirkland v. State (Cr.App. 1955) 162 Tex.Crim. 424, 285 S.W.2d 743. To constitute negligent homicide, there had to be an apparent danger of causing the death of a person, and no apparent intention to kill. Chapman v. State (Cr.App. 1957) 165 Tex.Crim. 109, 303 S.W.2d 789. Homicide 708 In a prosecution for negligent homicide, whether apparent danger existed was not to be determined from the viewpoint of the accused alone, but rather from the facts as a whole. Bullock v. State (Cr.App. 1958) 167 Tex.Crim. 419, 320 S.W.2d 663. Homicide 708 One could be guilty of negligent homicide who carelessly and negligently fired a pistol and killed the decedent though with no apparent intention to kill, where there was an apparent danger of causing death. Bullock v. State (Cr.App. 1958) 167 Tex.Crim. 419, 320 S.W.2d 663. Homicide 708 20. Aggravated assault with motor vehicle The negligence contemplated in a criminal action such as a prosecution for aggravated assault with an automobile was governed by Vernon's Ann.P.C. art. 1233 (repealed), and was only a failure to exercise ordinary care as defined by the statute. Guajardo v. State (Cr.App. 1940) 139 Tex.Crim. 201, 139 S.W.2d 85. Automobiles 347 Vernon's Ann.P.C. art. 1233 (repealed), providing that want of proper care and caution distinguished negligent homicide from excusable homicide, constituted a definition of "negligence" applicable to prosecutions for aggravated assault with an automobile. Guajardo v. State (Cr.App. 1940) 139 Tex.Crim. 201, 139 S.W.2d 85. Automobiles 347 The negligence applicable to aggravated assault with a motor vehicle is the same as that applicable to negligent homicide, and it therefore may arise out of failure to use ordinary care. Vogt v. State (Cr.App. 1953) 159 Tex.Crim. 207, 261 S.W.2d 176. Automobiles 347 Where A and B are standing close together on the edge of a highway and D in his automobile runs into them, if he be acquitted on a charge of aggravated assault subsequent trial for negligent homicide to B successfully raise the plea of former acquittal. Op.Atty.Gen.1941, No. 0-3481. 21. Indictment, information or complaint--In general Information charging in language of statute an aggravated assault arising out of operation of motor vehicle was not deficient for failure to charge that defendant failed to exercise that degree of care which a man of ordinary prudence would use under like circumstances as prescribed by this article relating to negligent

homicide. Merryman v. State (Cr.App. 1949) 153 Tex.Crim. 593, 223 S.W.2d 630. Indictment And Information 110(17) Indictment charging defendant with delivery of cocaine to an undercover police officer properly contained allegation of culpable mental state, i.e., "knowingly," in that indictment specifically stated that defendant "unlawfully and knowingly" delivered cocaine. Henderson v. State (App. 6 Dist. 2004) 2004 WL 1468571, Unreported. Controlled Substances 64 22. ---- Recklessness, indictment, information or complaint Involuntary manslaughter indictment alleging act of "grabbing the steering wheel of a motor vehicle and pulling said steering wheel to the right while [defendant] was a passenger in the right front seat of said motor vehicle, thereby recklessly causing said motor vehicle to veer to the right and strike the said [victim], thereby fatally injuring the [victim]" sufficiently alleged with reasonable certainty the act relied upon to constitute recklessness. Arredondo v. State (Cr.App. 1979) 582 S.W.2d 457. Indictment And Information 71.4(5) Informations charging offense of reckless conduct, which charged that defendants discharged firearm in direction of residential area when they were aware and should have been aware of presence of persons in area, were not fundamentally defective on ground that conjunctive joining of phrases "was aware" and "should have been aware" allowed State to meet burden by proving lesser mental state of negligence, even though phrase "should have been aware" was not culpable mental state prescribed for offense of reckless conduct. Kirk v. State (App. 3 Dist. 1982) 643 S.W.2d 190, petition for discretionary review refused. Weapons 17(1) Charge that defendant omitted to immediately seek or attempt to obtain proper medical treatment after finding child in need of immediate medical care sufficiently pleaded acts relied upon by State as constituting recklessness or criminal negligence in prosecution for injury to child. Priego v. State (App. 8 Dist. 1983) 658 S.W.2d 655. Infants 20 Indecent exposure information sufficiently alleged recklessness element of offense, where information asserted that defendant exposed his penis and also alleged separate act of masturbation in presence of victim as act constituting recklessness. Galliford v. State (App. 1 Dist. 2003) 101 S.W.3d 600, petition for discretionary review refused. Obscenity 11 Failure of information charging indecent exposure to allege place of charged acts with greater specificity did not prejudice the substantial rights of defendant, where it alleged all essential elements of offense, and defendant did not show any impact on his ability to prepare defense. Galliford v. State (App. 1 Dist. 2003) 101 S.W.3d 600, petition for discretionary review refused. Criminal Law 1167(1) Defendant, convicted of murder, was not entitled to lesser-included offense charge on manslaughter for starting a fire in her apartment which caused the death of victims, absent evidence that defendant acted recklessly, and that she consciously disregarded a substantial risk of death of which she was aware of; evidence that there was no battery in smoke detector, that defendant delayed in calling 911, and that defendant was aware that other people were home at the time the fire started did not show that defendant acted recklessly in setting apartment on fire. Proffitt v. State (App. 1 Dist. 2003) 2003 WL 22512074, Unreported, petition for discretionary review dismissed as untimely filed. Homicide 1457

23. ---- Negligence, indictment, information or complaint In charging negligent homicide, through the driving of an automobile, the particular act relied upon should be set up, and it should appear from the indictment that all the elements of the offense charged exist, including elements of apparent danger and apparent intention to kill. Worley v. State (Cr.App. 1921) 89 Tex.Crim. 393, 231 S.W. 391. Automobiles 351.1 In charging offense of negligent homicide the information need not plead explicitly the acts relied on as negligence. Bullock v. State (Cr.App. 1958) 167 Tex.Crim. 419, 320 S.W.2d 663. Homicide 839 Information charging defendant with negligently and carelessly handling a pistol thereby causing it to discharge and shoot and kill decedent, was sufficient to charge an offense even though it did not allege the manner in which defendant was charged with having negligently and carelessly handled the pistol. Bullock v. State (Cr.App. 1958) 167 Tex.Crim. 419, 320 S.W.2d 663. Homicide 845 24. Juror selection During voir dire in capital trial, hypotheticals which illustrate type of mental state do not have to involve acts which "cause a result" for purpose of explaining certain mental state or distinguishing between different mental states and thus hypotheticals illustrating mental states of "intentional" and "deliberate" were not improper on theory that they merely described acts of preparation which did not cause a result. Riddle v. State (Cr.App. 1994) 888 S.W.2d 1, rehearing denied, certiorari denied 115 S.Ct. 1701, 514 U.S. 1068, 131 L.Ed.2d 563, denial of habeas corpus affirmed 288 F.3d 713, certiorari denied 123 S.Ct. 420, 537 U.S. 953, 154 L.Ed.2d 300. Jury 131(15.1) Hypotheticals used during voir dire in capital case to describe mental states applicable to "intentional" and "deliberate" acts were not improper merely because they consisted of simplistic situations which had nothing to do with capital murder case; state was not prohibited from using simple noncriminal hypotheticals to illustrate concepts. Riddle v. State (Cr.App. 1994) 888 S.W.2d 1, rehearing denied, certiorari denied 115 S.Ct. 1701, 514 U.S. 1068, 131 L.Ed.2d 563, denial of habeas corpus affirmed 288 F.3d 713, certiorari denied 123 S.Ct. 420, 537 U.S. 953, 154 L.Ed.2d 300. Jury 131(15.1) 25. Presumptions Knowledge and intent can be inferred from acts, words, and conduct of accused. Martinez v. State (App. 4 Dist.1992) 844 S.W.2d 279, review refused; Gutierrez v. State (App. 13 Dist.1984) 672 S.W.2d 633, affirmed as reformed 741 S.W.2d 444; Pender v. State (App. 2 Dist.1993) 850 S.W.2d 201. While negligence contemplated in negligent homicide may arise out of failure to exercise ordinary care, such failure must be established by proof and cannot be subject of supposition and conjecture. Nichols v. State (Cr.App. 1951) 155 Tex.Crim. 521, 236 S.W.2d 801. Homicide 1135 Where defendant in circumstantial evidence case alleges lack of intent, but no

affirmative defense is involved, principle that all hypotheses other than guilt must be excluded does not apply to require the State to bring direct evidence to the contrary. Warren v. State (App. 14 Dist. 1990) 797 S.W.2d 161, petition for discretionary review refused. Criminal Law 552(3) Jury may infer intent to kill from use of deadly weapon unless it would not be reasonable to infer that death or serious bodily injury could result from use of weapon. Ross v. State (Cr.App. 1992) 861 S.W.2d 870, rehearing granted, on rehearing in part. Homicide 908 Although inference of intent to kill from defendant's use of deadly weapon per se may be rebutted, there must be some evidence that defendant was guilty only of reckless or negligent conduct before instruction on lesser offense is required. Navarro v. State (App. 3 Dist. 1993) 863 S.W.2d 191, rehearing overruled, petition for discretionary review refused 891 S.W.2d 648, rehearing on petition for discretionary review denied. Homicide 1455 Intent can be inferred from acts, words, and conduct of accused. Kelley v. State (App. 12 Dist. 1998) 968 S.W.2d 395. Criminal Law 312 26. Sufficiency of evidence--Intentional conduct Evidence showing that defendant attempted to enlarge fire in jail by adding a blanket to it, that defendant encouraged others to start fires and to "burn this place," and that defendant attempted to prevent efforts by jail personnel to extinguish blaze was sufficient to establish that defendant intended to damage or destroy building within meaning of � 28.02. Beltran v. State (Cr.App. 1980) 593 S.W.2d 688. Arson 37(2) Accused's intent to commit crime cannot be determined merely from what victim thought at time of offense. Williams v. State (Cr.App. 1982) 630 S.W.2d 640. Evidence that defendant was armed with a pistol which he had fired once, striking the deceased, that he pointed the pistol at the deceased, and that he fired a shot which caused the death of the deceased was sufficient for the jury to find that defendant intentionally caused the deceased's death. Dorough v. State (Cr.App. 1982) 639 S.W.2d 479. Homicide 1135 Evidence was sufficient to support wife's conviction for sexual assault of child, even though wife was not present at time of sexual intercourse between husband and child; testimony supported inference that sexual intercourse occurred as result of wife's intentional course of conduct and conscious objective and desire to have child engage in sexual intercourse with husband. Simon v. State (App. 1 Dist. 1987) 743 S.W.2d 318, petition for discretionary review refused, rehearing on petition for discretionary review denied. Rape 51(1) Evidence, that appearance of patrons at premises wherein intoxicating liquor was consumed demonstrated they were underage, was insufficient to demonstrate that premise owner "knowingly" or "intentionally" contributed to delinquency of the minor patrons. 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 236(1) Circumstantial evidence was sufficient to support finding that defendant had both requisite intent and knowledge for murder conviction arising out of death of her child, who drowned in toilet at birth; while defendant testified that she was

surprised by unexpected delivery of child and was handicapped in getting off toilet because of weight of baby hanging on umbilical cord, she also testified that nothing physically prevented her from reaching down into toilet and getting baby out. Warren v. State (App. 14 Dist. 1990) 797 S.W.2d 161, petition for discretionary review refused. Homicide 1135 Evidence in prosecution for murder supported finding that defendant intentionally or knowingly shot and killed victim, whom defendant believed was another person, while victim was standing in front of that other person's house; evidence included proof that defendant fired three shots from rifle at victim, that one shot struck victim, and that defendant told another witness that "the fight" had been with defendant and not with other occupant of car in which defendant was riding. Martinez v. State (App. 4 Dist. 1992) 844 S.W.2d 279, petition for discretionary review refused. Homicide 1135 Statement of defendant charged with murder that he did not intend to kill victim, when viewed along with all other evidence, was not evidence that would have permitted jury rationally to find that if he was guilty, he was guilty only of involuntary manslaughter. Johnson v. State (App. 14 Dist. 1996) 915 S.W.2d 653, petition for discretionary review refused. Homicide 1150 Evidence of intent sustained conviction for murder; defendant was familiar with firearms, knew gun was loaded, knew there were people in car, intended to fire at car twice, killed victim with gun shot to her neck, and had threatened to kill victim several weeks prior to the shooting. Davila v. State (App. 13 Dist. 1997) 952 S.W.2d 872, rehearing overruled, petition for discretionary review refused. Homicide 1135 Accused's intent to commit murder may be ascertained from methods used and wounds inflicted, as well as from circumstances surrounding use of a weapon. Kelley v. State (App. 12 Dist. 1998) 968 S.W.2d 395. Homicide 908 Evidence was sufficient to establish that defendant intentionally and knowingly attempted to kill occupant in vehicle by shooting at vehicle but instead caused the death of unintended victim to support conviction for murder, despite defendant's testimony that he did not know anyone in vehicle and that he did not intend to kill anyone; defendant and intended victim had been involved in earlier bar brawl, defendant went home to retrieve shotgun and pistol and returned to bar, eyewitnesses saw defendant aim gun at vehicle occupied by intended victim, defendant shot out passenger window where intended victim had been sitting, and defendant threw the guns into a lake when he found out that someone had died in shooting. Castillo v. State (App. 7 Dist. 2002) 71 S.W.3d 812, rehearing overruled, petition stricken, petition for discretionary review refused. Homicide 1135 Evidence was legally sufficient to support trial court finding that defendant had the mens rea for capital murder of a child; defendant told conflicting stories of how child was injured, child was found facedown in the kitchen, defendant admitted that he was capable of losing his temper and had slapped child's mother, and medical experts testified that child's injuries were not caused by a wrestling move, as defendant suggested. Duren v. State (App. 6 Dist. 2002) 87 S.W.3d 719, petition stricken. Homicide 1141 Sufficient evidence supported defendant's conviction for making a false record; face of birth certificate misrepresented defendant, a licensed midwife, as attendant to delivery twice, and twice-made misrepresentation on certificate and witnesses' testimony were sufficient to allow jury to infer defendant's mental state and find beyond a reasonable doubt that he intentionally or knowingly made a

false record. Lima v. State (App. 13 Dist. 2003) 107 S.W.3d 774. Fraud

69(5)

Evidence was legally and factually sufficient to prove beyond a reasonable doubt defendant's intent to manufacture methamphetamine, as required to support conviction for possession of pseudoephedrine with intent to manufacture methamphetamine; police seized twenty-four bottles of cold medicine containing pseudoephedrine, eight lithium batteries, and six cans of starter fluid from defendant's car, and officer trained in narcotics investigation testified that such items are used to manufacture methamphetamine. Shaffer v. State (App. 2 Dist. 2005) 2005 WL 3118809, withdrawn and superseded on denial of rehearing 184 S.W.3d 353, petition stricken 2006 WL 1540762. Controlled Substances 77 Evidence was legally and factually sufficient to prove beyond a reasonable doubt defendant's intent to manufacture methamphetamine, as required to support conviction for possession of pseudoephedrine with intent to manufacture methamphetamine; police seized 24 bottles of cold medicine containing pseudoephedrine, eight lithium batteries, and six cans of starter fluid from defendant's car, and officer trained in narcotics investigation testified that such items are used to manufacture methamphetamine. Shaffer v. State (App. 2 Dist. 2006) 184 S.W.3d 353, petition stricken 2006 WL 1540762. Controlled Substances 77 Evidence was legally sufficient to establish that defendant intended to deprive owner of currency by deception, as would support conviction of school cafeteria manager for theft by deception by a public servant; defendant was last person with bag with deposit, she diverged from her usual procedure by allegedly opening locked bag and combining deposits, witness testified that defendant would not have been allowed to combine contents of bank bags, officer did not pick up bank bags on day of crime, defendant was sole individual to place bank bag in secure area, corrected deposit defendant claimed was in bag was never found, and witness testified that defendant walked out of office with one bag. Martinez v. State (App. 13 Dist. 2006) 2006 WL 563040. Schools 63(3) Evidence, which showed that victim was elderly and posed no threat to defendant, and that defendant struck victim in the head, went to great lengths to conceal his body, and then hid the murder weapon, was sufficient to support finding that defendant acted intentionally and deliberately within meaning of Texas murder statute. Tex. Penal Code Ann. ���� 6.03(a), Sterling v. Cockrell, N.D.Tex.2003, 2003 WL 21488632, Unreported, certificate of appealability granted in part, denied in part 100 Fed.Appx. 239, 2004 WL 1194679, affirmed 117 Fed.Appx. 328, 2004 WL 2664247, certiorari denied 125 S.Ct. 2304, 544 U.S. 1053, 161 L.Ed.2d 1096, rehearing denied 126 S.Ct. 15, 162 L.Ed.2d 918. Homicide 1141; Homicide 1143 Evidence was legally and factually sufficient to establish that defendant intentionally or knowingly caused bodily injury so as to support defendant's conviction for aggravated assault; victim testified she believed defendant would have killed her when he threatened her and cut her neck, defendant had physically assaulted victim earlier in the evening when he pulled her out of his truck onto the driveway and kicked her while she lay on the ground, defendant continued his verbal assault inside the house and began throwing dishes at victim as she sat on the couch, and defendant told victim, "You fucking bitch, I'm going to kill you," then punctured her neck with a broken plate and pulled it across her skin, and defendant continued to threaten to kill victim. Cartee v. State (App. 5 Dist. 2002) 2002 WL 31375689, Unreported. Assault And Battery 91.7 Trial court's charge to jury regarding culpable mental state for manslaughter offense constituted error; while definitional portion of charge tracked language of penal code provision defining recklessly, charge did not limit definition of reckless to result of defendant's conduct. Yates v. State (App. 4 Dist. 2003) 2003

WL 56920, Unreported, petition for discretionary review granted, judgment vacated 2003 WL 22097263, on remand 136 S.W.3d 262, petition for discretionary review refused. Homicide 1387 Evidence was legally and factually sufficient to support conviction for capital murder; defendant shot the victim in the chest at close range when she resisted his attempts to take her purse, and medical examiner who performed autopsy on victim testified that gun was discharged within inches of the victim's body. Burrell v. State (App. 14 Dist. 2003) 2003 WL 124287, Unreported, petition for discretionary review refused. Homicide 1139 Evidence was sufficient to establish that defendant intentionally and knowingly threatened police officer with imminent bodily injury, thus supporting his conviction for aggravated assault of public servant; first officer testified that defendant initially fired two to three rounds at him, and was "definitely" aiming at him, and that defendant continued to fire at him during pursuit, and was aiming pistol at him with two hands, second officer testified that he saw defendant hanging out of his vehicle and shooting at first officer, and other evidence showed that defendant fired total of 11 shots at officers, a squad car struck twice by bullets. Williams v. State (App. 1 Dist. 2003) 2003 WL 124834, Unreported, petition for discretionary review refused. Assault And Battery 91.10(1) Evidence was factually sufficient to support conclusion that juvenile intentionally or knowingly caused serious bodily injury to victim, in delinquency proceeding; evidence indicated that juvenile twisted victim's arm until it broke and then taunted him about injury, and victim suggested that juvenile used his elbow to break victim's arm. In re C.S.H. (App. 6 Dist. 2002) 2002 WL 31748927, Unreported. Infants 176 Evidence was legally and factually sufficient to establish that defendant acted intentionally when she removed diapers from store, as required to support conviction for theft of property although defendant testified that she was addicted to prescribed medications and that drug usage impaired her memory and judgment; defendant entered a store with three packages of diapers and left with eleven, she attempted to place the diapers in her vehicle when the store manager approached her, none of the packages were bagged in sacks from the store, and when confronted by the store manager, defendant could not produce a receipt Fail v. Texas (App. 6 Dist. 2003) 2003 WL 22444339, Unreported, petition for discretionary review refused. Larceny 57 Evidence was legally sufficient to show that defendant had intent to kill, so as to support conviction for murder; shooting occurred after long argument between defendant and victim that involved physical and verbal abuse and threats of murder, defendant left gun in area easily accessible to victim despite her claims that she was going to kill herself, defendant carried gun during last stage of argument knowing that it was loaded, bullet's trajectory and height were consistent with defendant's extending gun directly in front of him when firing, defendant did not aid in attempts to help victim after shooting, and gun was found under defendant's bed as if it had been hidden. Crow v. State (App. 1 Dist. 2004) 2004 WL 584697, Unreported, petition for discretionary review refused. Homicide 1135 27. ---- Recklessness, sufficiency of evidence In light of second-degree burns over 38% of two-year-old son's body, fact that

when asked about unusual pattern of burns the father stated "It is my fault, I did it," and considering other facts and circumstances, evidence was sufficient to convict defendant of reckless injury to a child. Hooker v. State (Cr.App. 1980) 621 S.W.2d 597. Infants 20 Evidence was sufficient to support a finding of recklessness or a conscious disregard of a substantial and unjustifiable risk as the culpable mental state of defendant, who killed victim during incident in which victim challenged defendant to see if she could flip open a knife faster than defendant could draw a loaded gun from atop headboard of bed on which they were both situated, supporting conviction of defendant for involuntary manslaughter. Yates v. State (App. 14 Dist. 1981) 624 S.W.2d 816. Homicide 1150 Defendant's testimony that he pointed loaded gun at victim and fired two shots in victim's general direction was sufficient to support conviction for involuntary manslaughter based on recklessness. Rodriguez v. State (App. 5 Dist. 1985) 699 S.W.2d 358. Homicide 1150 Evidence supported findings that defendant was aware of risk involved in his conduct in attempting to prevent wife from securing pistol and that he consciously disregarded that risk resulting in shooting of his wife during struggle for pistol; thus, evidence was sufficient to sustain conviction for involuntary manslaughter. Sadler v. State (App. 5 Dist. 1987) 728 S.W.2d 829. Homicide 1150 Evidence in involuntary manslaughter prosecution was sufficient to support finding that defendant motorist recklessly caused another motorist's death; defendant's statement at the scene that she took corner too fast could be found to indicate awareness of risk presented by sharp curve, and disregard of the danger. Rodriguez v. State (App. 13 Dist. 1992) 834 S.W.2d 488. Automobiles 355(13) Defendant's conviction for involuntary manslaughter was supported by evidence that he could distinguish between friend and foe following assault, that he was fully conscious, and that he fled immediately after shooting the victim, despite his claim that he was so incapacitated from an assault on himself that he was unable to know that waving a gun at the victim and shooting it was dangerous and reckless. Hutson v. State (App. 6 Dist. 1992) 843 S.W.2d 106. Homicide 1149 Element of recklessness with respect to crime of involuntary manslaughter is satisfied by evidence showing that defendant consciously disregarded known and substantial risk that serious bodily injury would occur, risk that if disregarded constitutes gross deviation from standard of care ordinary person would exercise under same circumstances. Johnson v. State (App. 14 Dist. 1996) 915 S.W.2d 653, petition for discretionary review refused. Homicide 709 Direct or circumstantial evidence establishing substantial and unjustifiable risks surrounding defendant's conduct and degree of those risks, or proving defendant's awareness of and disregard for those risks, was highly relevant to defendant's culpable mental state during commission of involuntary manslaughter. Davis v. State (App. 2 Dist. 1997) 955 S.W.2d 340, rehearing overruled, petition for discretionary review refused. Homicide 986 Evidence was sufficient that defendant acted with requisite culpable mental state of reckless, as element of offense of indecent exposure; defendant masturbated in the presence of undercover police officer while they watched together pornographic video in special booth in adult book store, officer did not ask defendant to expose himself, and defendant did not ask for officer's consent, nor did he attempt to ascertain if officer would be offended. Hankins v. State (App. 13 Dist. 2002) 85 S.W.3d 433. Obscenity 3

Indecent exposure information stating that defendant "exposed his penis to [undercover officer] with intent to arouse and gratify the sexual desire of [defendant], and [defendant] was reckless about whether another person was present who would be offended and alarmed by the act, to wit: by masturbating his exposed penis" was deficient, although it alleged the act relied on to constitute recklessness; it did not allege the act was directed at another person and, thus, it failed to allege acts or circumstances relied on to demonstrate that forbidden conduct was committed in reckless manner. Hankins v. State (App. 13 Dist. 2002) 85 S.W.3d 433. Obscenity 11 Evidence was legally and factually sufficient to support finding that juvenile engaged in delinquent conduct by recklessly injuring a child when he shot and killed another juvenile with handgun; evidence showed that both witness and the victim asked juvenile to stop pointing the gun at them and that juvenile continued to load and unload the clip with bullets in it, pull back the slide, point the gun at them, and pull the trigger, a police officer testified that the trigger had at least an 8 pound pull and that the gun could not have gone off unless the trigger was pulled, and witness testified that juvenile pointed the gun at victim and pulled the trigger and the gun fired at victim. In re J.D.P. (App. 2 Dist. 2002) 85 S.W.3d 420. Infants 176 Evidence was factually sufficient to show that defendant intentionally, knowingly, or recklessly caused serious bodily injury to victim, and thus, supported conviction for aggravated assault; defendant drove the utility truck that contained victim at a high rate of speed while fleeing from the police, and evidence existed that defendant was aware that victim was in the bucket of the truck which was extended 30 feet in the air. Brown v. State (App. 11 Dist. 2002) 91 S.W.3d 353. Automobiles 355(14) Evidence was sufficient to support finding that manslaughter defendant with history of seizures and seizure-related automobile accidents "recklessly" caused the death of another during yet another seizure-related accident, and thus the evidence was sufficient to support his conviction, notwithstanding whether the evidence showed that he himself had consciously and carelessly discontinued his anti-epileptic prescription; defendant was obviously aware of his medical history, and the evidence permitted the inference that he had consciously misrepresented that history on his driver's license application. Robertson v. State (App. 8 Dist. 2003) 109 S.W.3d 13. Homicide 1148 Evidence that juvenile picked up sawed off shotgun, which she knew was loaded, raised gun chest-high, pointed it at victim and pulled the trigger was sufficient to show that she recklessly disregarded substantial and unjustifiable risk of causing victim's death, as required to support adjudication of delinquency for manslaughter. In re E.U.M. (App. 9 Dist. 2003) 108 S.W.3d 368. Infants 153 Evidence was factually sufficient to show that juvenile acted in reckless disregard for victim's safety, as required to support adjudication of delinquency for manslaughter, despite evidence that juvenile and victim were playing, that juvenile claimed not to know anything about guns, and that she "forgot" shotgun was loaded; risk inherent in leveling loaded handgun, pointing it at victim standing three or four feet away, and pulling trigger was so patent and extreme as to allow reasonable inference of juvenile's recklessness. In re E.U.M. (App. 9 Dist. 2003) 108 S.W.3d 368. Infants 176 Evidence was sufficient to support defendant's conviction for recklessly causing serious bodily injury to his 18-month-old grandson by failing to obtain reasonable medical care; it was apparent to emergency and hospital personnel that child was

in distress, physicians testified that child suffered internal and external injuries from 10 to 12 hours prior to death and would have shown signs of injuries including expressions of pain, defendant had emergency medical training, defendant admitted that almost one hour had past from time defendant claimed to have first noticed the child's lethargic condition to time 911 was called, and a physician testified it was possible child would have survived if he had received medical care shortly after the injury occurred. Payton v. State (App. 2 Dist. 2003) 106 S.W.3d 326, petition for discretionary review refused. Infants 20 Evidence of defendant truck driver's safety awareness did not greatly outweigh State's evidence, and thus, evidence was factually sufficient to support conviction for criminally negligent homicide arising from accident on bridge in construction zone; defendant's assertions that he did not take drugs or alcohol, did not drive his tractor-trailer at unreasonable or high rate of speed, and did not drive in way that would have caused his trailer to bounce and be unsafe were controverted by other evidence, including defendant's statement at scene of incident that he had taken medication earlier and was a "little drowsy," and eyewitness testimony of former truck driver and driving instructor concerning defendant's driving. Stadt v. State (App. 14 Dist. 2003) 120 S.W.3d 428, petition for discretionary review granted, affirmed 182 S.W.3d 360, rehearing denied. Automobiles 355(13) Evidence was sufficient to support finding that defendant truck driver's failure to appreciate risk of death was a gross deviation from standard of care exercised by an ordinary person under similar circumstances, as required to support conviction for criminally negligent homicide arising from accident on bridge in construction zone; defense witness who was a former tractor-trailer driver testified about witness's taking extra precautions on bridge, several defense witnesses testified that defendant maintained his speed, which was ten to 20 miles above posted speed limit, while other traffic slowed down, and a professional tractor-trailer driver who witnessed the accident testified about safety precautions truck drivers should use in construction zones and on bridges. Stadt v. State (App. 14 Dist. 2003) 120 S.W.3d 428, petition for discretionary review granted, affirmed 182 S.W.3d 360, rehearing denied. Automobiles 355(13) Testimony of witnesses who, on numerous occasions, saw defendant's four-year-old twin daughters wandering around apartment complex unsupervised was legally sufficient evidence of recklessness in prosecution for recklessly causing injury to a child by omission arising from drowning death of one of the daughters in complex's hot tub. Prescott v. State (App. 4 Dist. 2003) 123 S.W.3d 506. Infants 20 Evidence was sufficient to support finding that juvenile's violent attempts to resist restraint after making threatening movements and verbal threats were reckless, thus supporting delinquency adjudication for assault on a public servant; juvenile swore at his teachers and threatened to hurt them, juvenile bucked his torso violently and wrenched himself from teachers' grip when they tried to restrain him, and juvenile's actions caused injury to teacher's thumb and knee. In re J.L. O. (App. 3 Dist. 2002) 2002 WL 1804951, Unreported. Infants 153 Evidence was legally sufficient to show that defendant's reckless failure to supervise her three-year-old child as to her seatbelt placed child in imminent danger, as required to support conviction of reckless endangerment; investigating police officer testified that child fell out of the front passenger window, and "if you're fastened in a seatbelt, you're not going to fall from a moving vehicle," testified that the seat-belts in the back seat were "pushed down like non-use," and defendant failed to observe that the child was not belted when she checked the child while she stopped at a red light shortly before the child fell

from the car. Suarez v. State (App. 5 Dist. 2003) 2003 WL 23025024, Unreported, petition for discretionary review refused. Infants 20 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 Jury's finding that defendant acted recklessly in committing aggravated assault was consistent with finding that defendant intended to use his hands or feet in a manner in which they would be capable of causing death or serious bodily injury, in prosecution for aggravated assault with a deadly weapon; defendant committed aggravated assault by causing serious bodily injury to victim by repeatedly kicking and stomping him with his hands and feet, he acted recklessly because he was aware of but consciously disregarded fact that victim would die, and he intended to use his hands and feet in that they would be capable of causing serious bodily injury or death of victim. Martinez v. State (App. 13 Dist. 2003) 2003 WL 22859800, Unreported. Criminal Law 878(4) Evidence was legally sufficient to permit inference by jury that defendant was aware of, but consciously disregarded, a substantial and unjustifiable risk that striking victim on the side of the head with a closed fist could result in injury that would cause death, as was required to support conviction for manslaughter; evidence showed that both defendant, an inmate, and second inmate approached victim, also an inmate, as he argued with third inmate about jumpsuit, and although victim did not do anything to provoke attack by either man, defendant struck victim with a closed fist on the side of the head and second inmate joined in the attack. Milam v. State (App. 8 Dist. 2006) 2006 WL 304528, Unreported, petition for discretionary review refused. Homicide 1148 28. ---- Criminal negligence, generally, sufficiency of evidence Finding that there was substantial and unjustifiable risk that another person would be present who would be offended by high school coach's sexual contact with student and that coach was aware of risk and consciously disregarded it, as required for public lewdness conviction, was supported by evidence that office in which sexual contact occurred was close to heavily trafficked area in large high school, student athletes were present in nearby area, office was visible from outside and frequented by students who often entered without knocking. Reynolds v. State (App. 1 Dist. 1993) 856 S.W.2d 547. Lewdness 10 Defendant charged with murder was not entitled to have jury instructed on negligent homicide, as lesser included offense, though criminally negligent homicide was included within proof necessary to establish murder, as jury could not rationally find that defendant committed only criminally negligent homicide, but not murder, where defendant armed self with loaded firearm, fired multiple rounds into pickup truck, and shot randomly into crowd; there was no evidence that defendant was unaware of risk his actions posed to safety of those he sought to intimidate. Espinosa v. State (App. 14 Dist. 1995) 899 S.W.2d 359, rehearing overruled, petition for discretionary review refused. Homicide 1457 Issue of whether criminal negligence is shown, that is, whether one should be aware of a requisite risk, is a conclusion to be drawn through inference from all circumstances by trier of fact. Todd v. State (App. 8 Dist. 1995) 911 S.W.2d 807.

Criminal Law

314

Evidence that defendant knows gun is loaded, that he is familiar with guns and their potential for injury, and that he points gun at another, indicates person who is aware of risk created by that conduct and disregards that risk, and thus cannot be guilty of criminally negligent conduct. Johnson v. State (App. 14 Dist. 1996) 915 S.W.2d 653, petition for discretionary review refused. Homicide 908 Defendant who shot victim was not entitled to instruction on criminally negligent homicide as lesser included offense of murder; defendant was aware of risk of injury or death involving use of gun, as he was familiar with firearms, knew gun was loaded, intended to fire gun at a carload of people, and admitted knowing that such act was clearly dangerous to human life. Davila v. State (App. 13 Dist. 1997) 952 S.W.2d 872, rehearing overruled, petition for discretionary review refused. Homicide 1457 Evidence of defendant truck driver's safety awareness did not greatly outweigh State's evidence, and thus, evidence was factually sufficient to support conviction for criminally negligent homicide arising from accident on bridge in construction zone; defendant's assertions that he did not take drugs or alcohol, did not drive his tractor-trailer at unreasonable or high rate of speed, and did not drive in way that would have caused his trailer to bounce and be unsafe were controverted by other evidence, including defendant's statement at scene of incident that he had taken medication earlier and was a "little drowsy," and eyewitness testimony of former truck driver and driving instructor concerning defendant's driving. Stadt v. State (App. 14 Dist. 2003) 120 S.W.3d 428, petition for discretionary review granted, affirmed 182 S.W.3d 360, rehearing denied. Automobiles 355(13) Evidence in prosecution for interference with the duties of a police officer was insufficient to establish that defendant acted with requisite mental state of criminal negligence in pulling away from arresting officer, absent any evidence that defendant ought to have been aware of substantial and unjustifiable risk, or any evidence of what such risk might have been. Boyd v. State (App. 11 Dist. 2006) 2006 WL 2022259. Obstructing Justice 16 Evidence was sufficient to support defendant's conviction for criminally negligent homicide; evidence showed that roads were in good driving condition at time of accident, and that defendant, who was familiar with the particular section of road, traveled 15 to 25 miles per hour in excess of the speed limit, failed to slow down as he approached the intersection, ran a red light, and failed to keep a proper lookout so as to apply his brakes before striking victim's vehicle in the intersection. Montana v. State (App. 1 Dist. 2005) 2005 WL 3315269, Unreported. Automobiles 355(13) Evidence was legally sufficient to support convictions for aggravated assault; numerous witnesses testified that defendant drove an 18-wheeler that collided with car containing victims, that defendant was speeding and was weaving in and out of lanes of traffic, and that he was driving too closely or nearby another 18-wheeler that was also speeding and weaving lane to lane. Johnson v. State (App. 5 Dist. 2006) 2006 WL 349496, Unreported. Automobiles 355(14) 29. ---- Criminally negligent homicide, sufficiency of evidence Evidence was insufficient to convict defendant of negligent homicide in the first degree for striking decedent with automobile at nighttime when decedent was either

coming out from between two parked automobiles or was emerging from decedent's own automobile on the side of street on which defendant was driving, where evidence did not show that defendant saw the decedent or could have seen decedent or knew that decedent was there and so showed no apparent danger of causing death of decedent. Johnson v. State (Cr.App. 1948) 151 Tex.Crim. 313, 207 S.W.2d 871. Automobiles 355(13) Where motorist, preceding defendant truck driver, without signaling, slowed automobile to turn right and truck driver applied brakes on wet street causing trailer to jack-knife and collide with deceased's automobile, but there was no evidence as to relative position of vehicles at or just prior to collision, evidence as to whether there was apparent danger of killing deceased or some other person was insufficient to support conviction for negligent homicide of the first degree. Johnson v. State (Cr.App. 1951) 156 Tex.Crim. 23, 238 S.W.2d 766. Automobiles 355(13) In prosecution for negligent homicide in the first degree, evidence, including testimony as to defendant's manner of handling loaded pistol in question, placing it on the table, and picking it up without checking to see if it was on safety, although he had knowledge that the safety was easy to get on and off, was sufficient to sustain finding that defendant was negligent in handling the pistol, and that such negligence was the proximate cause of death of decedent, and that there was an apparent danger of causing death to the decedent or to someone else by the manner in which defendant handled the pistol. Bullock v. State (Cr.App. 1958) 167 Tex.Crim. 419, 320 S.W.2d 663. Homicide 1147; Homicide 1135 Actions of defendant, who raised up from sleeping position on floor when victim walked into room, whereupon defendant's pistol which he was allegedly trying to uncock went off, fatally striking victim, were sufficient to indicate that defendant ought to have been aware of substantial and unjustifiable risk that his conduct might injure and kill victim, at whom pistol was obviously pointed at time it was fired, and risk was of such a nature and degree that it constituted gross deviation from standard of care prescribed by subsec. (d) of this section; accordingly, defendant's conduct constituted offense under 1974 Penal Code. Dockery v. State (Cr.App. 1975) 542 S.W.2d 644. Homicide 708 Testimony of defendant's grandmother to effect that deceased was pushed through doorway of house into knife which defendant held in his hand was sufficient to raise issue of criminally negligent homicide in murder trial; thus, trial court committed reversible error in refusing defendant's requested charge on criminally negligent homicide. Bodeker v. State (App. 5 Dist. 1981) 629 S.W.2d 65, review refused. Homicide 1457; Criminal Law 1173.2(4) Evidence that defendant did not recall seeing victim prior to her vehicle's striking him, that victim's body was found 72 feet from point of impact and defendant's vehicle left 116 feet of skid marks, and that defendant told investigating police that she was driving 50 miles per hour at time accident occurred when children were on their way to school in residential area with posted speed limit of 30 miles per hour, was sufficient to support conviction of criminally negligent homicide based on finding that defendant should have been aware that her excessive speed and failure to keep proper lookout created substantial and unjustifiable risk. Thompson v. State (App. 14 Dist. 1984) 676 S.W.2d 173. Automobiles 355(13) Evidence supported finding of culpable mental state of criminal negligence, sustaining conviction for criminally negligent homicide; testimony showed defendant was tailgating another car while speeding during rush hour traffic, failed to watch traffic in front of him, and failed to apply brakes before

striking stalled vehicle, and thus that he should have been aware of substantial and unjustifiable risk presented by his conduct. Todd v. State (App. 8 Dist. 1995) 911 S.W.2d 807. Automobiles 355(13) Evidence supported determination that defendant intended to kill or seriously injure victim when he stabbed victim in chest with knife, as required to support conviction for murder; defendant confronted victim and asked if he wanted to go "one-on-one," witnesses saw defendant pull knife out of his pants during fist fight and stab victim in chest, and victim's autopsy revealed defensive wounds on his hands and stab wounds in his back. Gutierrez v. State (App. 3 Dist. 2002) 85 S.W.3d 446, rehearing overruled, habeas corpus granted 2003 WL 22097232, petition for discretionary review refused, certiorari denied 125 S.Ct. 2245, 544 U.S. 1034, 161 L.Ed.2d 1062. Homicide 528 Evidence was sufficient to support finding that defendant truck driver's failure to appreciate risk of death was a gross deviation from standard of care exercised by an ordinary person under similar circumstances, as required to support conviction for criminally negligent homicide arising from accident on bridge in construction zone; defense witness who was a former tractor-trailer driver testified about witness's taking extra precautions on bridge, several defense witnesses testified that defendant maintained his speed, which was ten to 20 miles above posted speed limit, while other traffic slowed down, and a professional tractor-trailer driver who witnessed the accident testified about safety precautions truck drivers should use in construction zones and on bridges. Stadt v. State (App. 14 Dist. 2003) 120 S.W.3d 428, petition for discretionary review granted, affirmed 182 S.W.3d 360, rehearing denied. Automobiles 355(13) Evidence was sufficient to support finding that defendant truck driver failed to perceive risk of death from his conduct, as required to support conviction for criminally negligent homicide arising from accident on bridge in construction zone; defendant drove his tractor-trailer onto bridge at speed between ten and 20 miles per hour above posted speed limit, despite slowing of all traffic around him, bouncing of his truck, his awareness that his right front tire might clip concrete barrier, and his awareness that there had been numerous accident-related deaths on bridge, defendant deviated from his normal routine to pass another vehicle, and defendant took his eyes off the road as he approached bridge. Stadt v. State (App. 14 Dist. 2003) 120 S.W.3d 428, petition for discretionary review granted, affirmed 182 S.W.3d 360, rehearing denied. Automobiles 342.1 Evidence was factually sufficient to support conviction for manslaughter as lesser-included offense of murder, despite defendant's contention that his intentional acts of firing gun at intended victim, and fact that he only hit and killed third-party because intended victim moved, could not support a finding that his conduct was reckless; defendant admitted that he pointed gun he knew was loaded at intended victim and third-party, that defendant's eyes were closed while he was shooting, and that he was shooting with his non-dominant hand, which had previously been injured. Hayes v. State (App. 1 Dist. 2003) 124 S.W.3d 781, rehearing overruled, petition for discretionary review granted, affirmed 161 S.W.3d 507. Homicide 1148 Evidence was sufficient to support conviction for criminally negligent homicide; jury could have rationally found that defendant knew that hitch on his trailer was faulty, that defendant should have but failed to perceive substantial and unjustifiable risk of death from his conduct of knowingly using faulty trailer hitch without safety chains on public road, and that defendant's failure to perceive this substantial and unjustifiable risk of death was gross deviation from standard of care that an ordinary person would exercise under the circumstances. Tello v. State (Cr.App. 2005) 180 S.W.3d 150. Homicide 1134

30. Questions for jury Defendant's statements that he shot downward without intent to kill raised defense to charges of murder, manslaughter, and negligent homicide which should have been submitted to jury. Rodriguez v. State (Cr.App. 1928) 109 Tex.Crim. 278, 4 S.W.2d 52. Homicide 1387 Whether operation of motor vehicle at rapid speed is act accompanied by apparent danger of causing death, within negligent homicide statute, was for jury. Ladd v. State (Cr.App. 1930) 115 Tex.Crim. 355, 27 S.W.2d 1098. Automobiles 356(13); Automobiles 356(13); Automobiles 356(13) 31. Instructions--In general Generally, charge should contain only portion of statutory definition of mental states which corresponds to type of culpable mental state proscribed by offense. Leal v. State (App. 13 Dist. 1990) 800 S.W.2d 346, petition for discretionary review refused. Criminal Law 808.5 Definitions of culpable mental state did not have to be tailored to particular offense on trial even absent request or objection. Schumacher v. State (App. 3 Dist. 1991) 814 S.W.2d 871. Criminal Law 772(5); Criminal Law 824(2) Although presumption of specific intent to kill arising from defendant's use of deadly weapon per se may be rebutted, there must be some evidence that defendant is guilty only of reckless or negligent conduct before instruction on lesser included offense is required. Burnett v. State (App. 4 Dist. 1993) 865 S.W.2d 223, petition for discretionary review refused. Homicide 1455 Type of offense charged dictates which portion or portions of the culpable mental state definition should be submitted to the jury. Skillern v. State (App. 3 Dist. 1994) 890 S.W.2d 849, rehearing overruled, petition for discretionary review refused. Criminal Law 772(5) Defense of necessity would only deny that defendant consciously disregarded a substantial and unjustifiable risk by her actions as driver of school bus involved in accident that injured children, and thus, defendant was not entitled to instruction on necessity defense when "unjustifiable" was element of crime of causing bodily injury and serious bodily injury to a child by reckless and criminally negligent conduct. Chavers v. State (App. 1 Dist. 1999) 991 S.W.2d 457, rehearing overruled, petition for discretionary review refused. Infants 20 It is error for trial court to fail to limit definition of required mens rea in jury charge to reference only the type of element involved in the offense. Pitre v. State (App. 11 Dist. 2001) 44 S.W.3d 616, petition for discretionary review refused. Criminal Law 800(6) Defendant's failure to object to trial court's inclusion of "nature of conduct" elements in definition of "knowingly" in jury charge rendered any error harmless. Pitre v. State (App. 11 Dist. 2001) 44 S.W.3d 616, petition for discretionary review refused. Criminal Law 1038.1(6) Requests, in prosecution for knowingly or recklessly causing injury to a child by

omission arising from drowning of defendant's four-year-old daughter, for limiting instructions with respect to evidence of prior instances in which defendant's daughters had wandered around apartment complex unsupervised were not timely, and thus denial of such instructions was not error; two witnesses had given all their testimony regarding extraneous bad acts by the time defendant first requested a limiting instruction, and request made at charge conference was also untimely. Prescott v. State (App. 4 Dist. 2003) 123 S.W.3d 506. Criminal Law 673(5) Error in jury charge in aggravated assault trial which defined "intentional" and "knowing" as it related to result of conduct rather than the nature of conduct, as assault by threat, which was one of theories upon which defendant's guilt was based, was a "nature of conduct" offense, was harmless; nature of evidence supporting conviction was strong. Marinos v. State (App. 3 Dist. 2006) 186 S.W.3d 167, rehearing overruled, petition for discretionary review filed. Criminal Law 1172.1(3) For purposes of offense of unauthorized use of a motor vehicle, intent instruction that jury must find that defendant acted knowingly, or with knowledge, with respect to circumstances surrounding his conduct when he was aware that the circumstances existed, was proper; considering the workable relationship between the abstract paragraphs of the instruction and those applying the abstract law to the facts of the case, trial court was not required to also instruct jury that it must find that defendant operated the motor vehicle knowing that such conduct was without the effective consent of the owner. Jacobs v. State (App. 5 Dist. 2002) 2002 WL 31835745, Unreported. Automobiles 357(10); Automobiles 357(10); Automobiles 357(10) Trial court error in failing to limit the culpable mental states of intentionally, knowingly, and recklessly to the appropriate conduct element in its jury instruction on the mental states of the offenses charged did not cause defendant egregious harm; the application paragraphs for both counts both limited the requisite mental states to their relative conduct elements. Brown v. State (App. 5 Dist. 2003) 2003 WL 40669, Unreported, petition for discretionary review refused, habeas corpus denied 2004 WL 614916. Criminal Law 1172.1(3) Trial court's erroneous charge to jury regarding culpable mental state for manslaughter offense, in which charge tracked language of penal code provision defining recklessly but did limit definition of reckless to result of defendant's conduct, did not result in egregious harm to warrant reversal; although the definition in the charge included alternative conduct elements, the application paragraph specified that defendant had to have recklessly caused the victim's death, and thus facts, as applied to the law in the application paragraph, pointed the jury to the proper result oriented culpable mental state portion of the definition. Yates v. State (App. 4 Dist. 2003) 2003 WL 56920, Unreported, petition for discretionary review granted, judgment vacated 2003 WL 22097263, on remand 136 S.W.3d 262, petition for discretionary review refused. Criminal Law 1172.1(3) 32. ---- Intentional conduct, generally, instructions Failure to instruct jury on law of mistake of fact, based on contention that evidence raised issue of defendant's belief that police officers knew and approved of his selling narcotics, was not error in that a belief by defendant that he had an understanding with police did nothing to negate his intent to engage in conduct, delivery of controlled substances, which was basis of charge of engaging in organized criminal activity. Kennard v. State (App. 2 Dist. 1983) 649 S.W.2d 752, petition for discretionary review refused. Criminal Law 772(6)

Definition of "intentional" which allowed jury to infer from evidence of capital murder defendant's conduct that conduct was intentional did not shift burden of proof on essential element of offense onto defendant where trial court properly charged jury that burden of proof rested upon State throughout trial and never shifted to defendant and that defendant was presumed to be innocent until guilt was established beyond reasonable doubt. Dowden v. State (Cr.App. 1988) 758 S.W.2d 264. Criminal Law 312; Criminal Law 778(6) When offense is not clearly categorized as either a "result" or a "nature of the conduct" type offense, with respect to intent and knowledge required, trial court may submit definitions of "intentionally" and "knowingly" found in this section because both definitions allow jury to consider nature of offender's conduct or results of his conduct. Saldivar v. State (App. 13 Dist. 1989) 783 S.W.2d 265. Criminal Law 772(5) Where no defense is presented which would directly affect assessment of mental culpability, there is no harm in substituting erroneous definitions of "intentionally" and "knowingly." Saldivar v. State (App. 13 Dist. 1989) 783 S.W.2d 265. Criminal Law 1172.1(3) Jury instruction defining term "intentionally," in prosecution of defendant charged with injury to child, improperly included terms relating to nature of defendant's conduct, rather than focusing only on result of conduct, warranting reversal in light of evidence that defendant could have hit child in stomach without intending or knowing that serious bodily injury would result. Tissier v. State (App. 1 Dist. 1990) 792 S.W.2d 120, petition for discretionary review refused. Criminal Law 1172.1(3); Infants 20 When offense is both "result" and "nature of the conduct" type offense, with respect to intent and knowledge required, trial court should submit complete definitions of "intentional" and "knowingly" so that jury can consider both result of offender's conduct and nature of his conduct. Saldivar v. State (App. 13 Dist.1989) 783 S.W.2d 265; Murray v. State (App. 2 Dist. 1991) 804 S.W.2d 279, petition for discretionary review refused. Criminal Law 800(6) Charge in prosecution for assault with bodily injury, which limited definitions of "intentionally" and "knowingly" by applying them to factual context, required finding that defendant intended to cause bodily injury or knew that his conduct was reasonably certain to cause bodily injury and thus did not mislead jury; court charged that jury had to find defendant "intentionally and knowingly" caused bodily injury to the victim by jumping on her back and knocking her against the ground. Schumacher v. State (App. 3 Dist. 1991) 814 S.W.2d 871. Assault And Battery 96(1) Definition of "intentionally" in trial court's charge to jury on guilt or innocence did not shift burden of proof to defendant; charge's definition of "intentionally" tracked statutory definition, and nothing in language of that definition allocated any burden of proof on culpable mental state. Bethune v. State (App. 14 Dist. 1991) 821 S.W.2d 222, petition for discretionary review granted, affirmed 828 S.W.2d 14. Criminal Law 778(6) In order for defendant to be entitled to jury charge on involuntary manslaughter or criminally negligent homicide, record must contain some evidence that defendant did not intend resulting death or know that it was reasonably certain to occur; if such evidence is present, record must then be examined to see if it dictates whether defendant was aware or unaware of risk that his conduct could result in unintentional killing of deceased. Ybarra v. State (App. 4 Dist. 1994) 890 S.W.2d

98, rehearing denied, petition for discretionary review refused. Homicide

1455

Where thrust of indictment was that defendant intentionally and knowingly appropriated property by acquiring and exercising control over United State currency with intent to deprive owners without their effective consent, the consent being induced by deception, and where application paragraph of instructions tracked the language of the indictment, court did not err in submitting full statutory definitions of both "intentionally" and "knowingly." Skillern v. State (App. 3 Dist. 1994) 890 S.W.2d 849, rehearing overruled, petition for discretionary review refused. Criminal Law 808.5; Larceny 71(1) When defendant is charged with result oriented crime, he is entitled on request to have abstract definitions of "intentionally and knowingly" limited to "result only" language. Barcenes v. State (App. 4 Dist. 1997) 940 S.W.2d 739, petition for discretionary review refused. Criminal Law 814(6) Evidence showed that defendant voluntarily shot rifle at victim, and thus trial court properly refused defendant's request for jury instruction on absence of voluntary conduct in attempted murder trial, even though there was testimony that at some point victim's boyfriend pushed rifle, where there was no testimony that boyfriend's pushing of rifle caused defendant to involuntarily shoot victim, and evidence reflected that defendant, after threatening to shoot victim, began shooting rifle in air when victim emerged from apartment, defendant lowered rifle in victim's direction when she was about to turn corner, defendant fired at least 15 bullets in victim's direction, and defendant struck her in back with one bullet. Stevenson v. State (App. 2 Dist. 1998) 963 S.W.2d 801, petition for discretionary review refused. Homicide 1470 Jury instruction which tracked language of Penal Code section defining intent did not unconstitutionally shift burden of proof onto defendant. Garza v. State (App. 4 Dist. 1998) 974 S.W.2d 251, petition for discretionary review refused. Criminal Law 808.5 Jury charge in a capital murder prosecution which defines "intentionally" as it relates to the nature of conduct as well as the result of conduct is incorrect. Weatherred v. State (App. 9 Dist. 2001) 35 S.W.3d 304, petition for discretionary review refused. Homicide 1387 Defendant was not entitled to a definition of "intentionally" in jury charge that limited its application to the result of conduct, in capital murder trial; definition of "intentionally" that included the result of conduct and the nature of conduct elements was required since all three conduct elements were implicated by the underlying offenses of robbery and aggravated sexual assault. Barnes v. State (App. 2 Dist. 2001) 56 S.W.3d 221, petition for discretionary review refused. Homicide 1387 33. ---- Transferred intent, instructions In cases where defendant intends to shoot one person, but misses and strikes another, state must request that jury be instructed on law of transferred intent or else it must sustain higher burden of proving the defendant actually intended to shoot victim, rather than person at whom he aimed. Martinez v. State (App. 4 Dist. 1992) 844 S.W.2d 279, petition for discretionary review refused. Homicide 931; Homicide 1389 In murder prosecution in which charge authorized jury to find that defendant did

"intentionally or knowingly cause the death" of the victim in order to convict him of murder, but in which there was no mention of the law of transferred intent, jury was not required to find that defendant intentionally killed the victim, as opposed to someone else in the car in which victim was riding. Hull v. State (App. 14 Dist. 1994) 871 S.W.2d 786, petition for discretionary review refused. Homicide 1387 Evidence in murder prosecution was sufficient to find that defendant knowingly caused death of victim where defendant testified that he intentionally shot at car in which victim was riding, though he was not aiming gun at any particular person, and he admitted that he was aware of possibility that someone could be killed, and there was evidence that defendant knew that victim was in the car. Hull v. State (App. 14 Dist. 1994) 871 S.W.2d 786, petition for discretionary review refused. Homicide 1135 34. ---- Criminal negligence, instructions Charge given to jury on definition of criminal negligence tracked statutory definition and was substantially similar to that requested by defendant, and therefore any error in failing to give requested instruction was harmless. Todd v. State (App. 8 Dist. 1995) 911 S.W.2d 807. Criminal Law 829(3) Every case in which defendant points a loaded gun at another does not necessarily require trial court to give charge on criminal negligence. Kimbrough v. State (App. 1 Dist. 1995) 959 S.W.2d 634, petition for discretionary review refused. Homicide 1372 Every case in which a defendant alleges accidental discharge of loaded gun does not necessarily require trial court to give a charge on criminal negligence. Kimbrough v. State (App. 1 Dist. 1995) 959 S.W.2d 634, petition for discretionary review refused. Homicide 1372 Defendant involved in automobile accident was not entitled to jury instruction on criminal negligence as a lesser included offense of manslaughter, where there was no evidence that defendant was unaware of the risk involved in driving at high speed, and instead, evidence showed only conscious disregard of risk. Cooks v. State (App. 14 Dist. 1999) 5 S.W.3d 292. Criminal Law 795(2.55) 35. ---- Criminally negligent homicide, instructions In homicide prosecution, involving the issue of negligent homicide, instruction defining negligence as the failure to exercise that degree of care and caution which a man of ordinary prudence would use under like circumstances was proper. Haynes v. State (Cr.App. 1920) 88 Tex.Crim. 42, 224 S.W. 1100. Homicide 708 Instruction on negligent homicide requiring jury, in order to convict defendant of such crime, to believe that there was apparent danger of causing death was proper. Haynes v. State (Cr.App. 1920) 88 Tex.Crim. 42, 224 S.W. 1100. Homicide 708 Evidence raised issue of negligent homicide with a pistol, and failure to charge thereon was error. Simmons v. State (Cr.App. 1927) 109 Tex.Crim. 157, 3 S.W.2d 449. Homicide 1372 Where defendant testified that he was playing a joke on poker players by

pretending to rob them and went to window of room where they were playing and cut the screen over window with a knife and attempted to kick window in and was in the act of doing so when his foot slipped and gun barrel broke the window and was discharged, accidentally killing one of the players, failure to instruct on negligent homicide of either the first or second degree was proper. Cook v. State (Cr.App. 1948) 152 Tex.Crim. 51, 211 S.W.2d 224. Homicide 1373 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) Whether defendant, by pointing a loaded gun at victim, was unaware of requisite risk that he ought to have been aware of, and so was guilty of criminal negligence when gun discharged and killed person, or whether defendant was in fact aware of the risk and consciously disregarded it, and so was guilty of recklessness, was a matter to be drawn from circumstances by jury; it was, therefore, error in murder prosecution to refuse to charge jury on lesser included offense of involuntary manslaughter so that jury could decide whether to infer recklessness or intent to kill. Giles v. State (Cr.App. 1981) 617 S.W.2d 690. Homicide 1458 Defendant was not entitled to instruction on criminally negligent homicide where, by his own testimony, any risk to victim was justified by her threatened attack on him and testimony of other witness indicated defendant intentionally shot and killed victim. Coleman v. State (App. 13 Dist. 1986) 716 S.W.2d 612. Homicide 1457 Testimony of defendant's sister that victim's shooting death was accidental did not require jury instruction on criminally negligent homicide in murder prosecution; even if defendant had not foreseen ultimate consequences of hitting victim with a loaded, cocked gun, he was aware of risk that his conduct might cause harm or death and chose deliberately to pursue that conduct. Henderson v. State (App. 14 Dist. 1992) 825 S.W.2d 746, petition for discretionary review refused. Homicide 1492 Defendant was not entitled to instruction on criminally negligent homicide as lesser included offense of murder as there was no evidence showing unawareness of risk of unintentional killing of victim; defendant purchased gun after burglaries occurred at his home, test-fired gun and knew how shells were ejected, and kept loaded gun under his pillow with safety off and hammer pulled back, when defendant heard and saw victim coming into house, he pointed gun, which he agreed was deadly weapon, straight at victim and fired, defendant testified that he "blowed" victim "back out the door", and, while he denied that he intended to kill victim, he testified that he wanted to wound victim when he fired. Burnett v. State (App. 4 Dist. 1993) 865 S.W.2d 223, petition for discretionary review refused. Homicide 1457 Defendant who testified that she did not "intend" to stab victim, but testified that she knew knife was dangerous weapon which could cause harm, that victim was "about an inch" directly behind her when she swung her hand back to push the victim away, that she knew that the knife was in the hand which she was using, and that the reason for pushing off with the hand which held the knife was that she was trying to get the victim out of the way because she was still trying to get at another person was not entitled to an instruction on criminal negligence as a lesser included offense of murder. Lewis v. State (App. 1 Dist. 1993) 866 S.W.2d 272, petition for discretionary review refused. Homicide 1456

Existence of some evidence that homicide defendant did not intend resulting death and was not aware that it was reasonably certain to occur does not determine whether defendant perceived risk that unintended death might occur, for purposes of determining whether evidence supports requested jury instruction on criminally negligent homicide; if reasonable inference may be drawn from evidence that defendant was aware of that risk, charge on involuntary manslaughter should be submitted, while charge on criminal negligence should be submitted if reasonable inference may be drawn that defendant was not aware of that risk. Ybarra v. State (App. 4 Dist. 1994) 890 S.W.2d 98, rehearing denied, petition for discretionary review refused. Homicide 1457 Before jury charge on criminally negligent homicide is required, record must contain evidence showing defendant's unawareness of risk of death. Ybarra v. State (App. 4 Dist. 1994) 890 S.W.2d 98, rehearing denied, petition for discretionary review refused. Homicide 1372 Evidence in murder prosecution did not support requested jury instruction on criminally negligent homicide as lesser included offense; although defendant testified that he did not intend to kill victim and shot to scare victim, defendant also testified that he knew it was dangerous to have gun and dangerous to shoot at someone, that he knew that he was shooting loaded gun in direction of victim, and that when you point gun at someone's head and squeeze trigger, it is likely to kill that individual. Ybarra v. State (App. 4 Dist. 1994) 890 S.W.2d 98, rehearing denied, petition for discretionary review refused. Homicide 1457 Capital murder defendant was aware of risk of injury or death involving use of gun such that criminally negligent homicide was inapplicable and, thus, defendant was not entitled to instruction on criminally negligent homicide as lesser included offense; a juror would not infer that defendant was unaware of risk his conduct created when defendant armed himself with loaded gun, entered apartment with intent to "rob a dope house," threatened occupants with loaded gun, and engaged in struggle with victim while holding loaded gun in his hand. Gadsden v. State (App. 8 Dist. 1996) 915 S.W.2d 620. Homicide 1457 Before charge on criminally negligent homicide is required, record must contain evidence showing that defendant was unaware of substantial and unjustifiable risk created by his conduct. Gadsden v. State (App. 8 Dist. 1996) 915 S.W.2d 620. Homicide 1372 For purposes of determining whether defendant is entitled to instruction on criminally negligent homicide as lesser included offense, evidence that defendant knows gun is loaded, that he is familiar with guns and their potential for injury, and that he points gun at another, indicates person who is aware of risk of injury or death involving use of gun. Gadsden v. State (App. 8 Dist. 1996) 915 S.W.2d 620. Homicide 1457 Penal Code does not recognize "accident" as separate defense requiring instruction, and request for such instruction is not sufficient to preserve error in failure to instruct on voluntariness. Kimbrough v. State (App. 1 Dist. 1995) 959 S.W.2d 634, petition for discretionary review refused. Criminal Law 31; Criminal Law 772(6); Criminal Law 1038.3 In murder prosecution, defendant's actions of shooting firearm in the direction of other people with the intention of only scaring them involved a perceived risk that was disregarded, and thus, instruction on lesser included offense of criminally negligent homicide was not warranted. Licon v. State (App. 8 Dist. 2003) 99 S.W.3d 918. Homicide 1456

Before a charge on criminally negligent homicide is required, the record must contain evidence showing an unawareness of the risk. Licon v. State (App. 8 Dist. 2003) 99 S.W.3d 918. Homicide 1456 Evidence supported instruction on criminally negligent homicide as a lesserincluded offense of manslaughter, even if there was no declarative statement during trial that defendant truck driver did not know that his behavior was risky, in prosecution arising from accident on bridge in construction zone; witnesses testified that defendant was driving faster than conditions warranted, that defendant ignored signs that he was losing control of his rig, and that defendant took his eyes off road at the most critical stage of the bridge-crossing, and evidence also indicated that defendant was ordinarily a safety-conscious person who would have modified his behavior had he realized the danger of his actions. Stadt v. State (App. 14 Dist. 2003) 120 S.W.3d 428, petition for discretionary review granted, affirmed 182 S.W.3d 360, rehearing denied. Homicide 1458 Defendant was not entitled to a jury instruction on the lesser included offense of criminally negligent murder, in prosecution for homicide; defendant took a gun and waived it at a group of people, even though he did not know if the gun was loaded or not, defendant's testimony that the gun was a semi-automatic and would that just touching the trigger would make it go off established that defendant was aware of the risk involved, and the jury was authorized to convict defendant of manslaughter. Littles v. State (App. 11 Dist. 2003) 2003 WL 203146, Unreported. Homicide 1457 36. ---- Murder, instructions Capital murder defendant's alleged mental illness and emotional disturbance during time surrounding murder was insufficient to entitle him to jury instruction, pursuant to Penry v. Lynaugh, concerning his mental state before and during murder. Hughes v. Johnson, S.D.Tex.1998, 991 F.Supp. 621, on subsequent appeal 191 F.3d 607, certiorari denied 120 S.Ct. 1003, 528 U.S. 1145, 145 L.Ed.2d 945. Sentencing And Punishment 1780(3) For jury instruction concerning defendant's mental state before and during murder to be warranted pursuant to Penry v. Lynaugh, mitigating evidence at issue must demonstrate uniquely severe permanent handicap, or mental impairment of such severity and permanence to render it impossible for defendant to ever learn from his or her mistakes. Hughes v. Johnson, S.D.Tex.1998, 991 F.Supp. 621, on subsequent appeal 191 F.3d 607, certiorari denied 120 S.Ct. 1003, 528 U.S. 1145, 145 L.Ed.2d 945. Criminal Law 796 Defendant was not prejudiced by any error that occurred when trial court included "nature of conduct" element of statutory definitions of "intentionally" and "knowingly" in instructing jury in Texas capital murder prosecution in which proof was required that defendant knowingly caused death of decedent and that defendant knew decedent was peace officer, and in which defendant could not properly be convicted on nature of conduct alone; there was no reasonable likelihood that jury applied instruction in constitutionally impermissible manner. Hughes v. Johnson, S.D.Tex.1998, 991 F.Supp. 621, on subsequent appeal 191 F.3d 607, certiorari denied 120 S.Ct. 1003, 528 U.S. 1145, 145 L.Ed.2d 945. Homicide 1387; Homicide 1403 In prosecution which resulted in murder conviction, trial court did not err in failing to give defendant's specially requested charge on "shooting to scare," a

defensive theory, where charge given adequately protected defendant's rights, and defendant was not entitled to an acquittal simply because he did not have intent to kill as his charge would have authorized. Womble v. State (Cr.App. 1981) 618 S.W.2d 59. Homicide 1470 Variation between definition of "intentional" in court's charge to jury in murder prosecution and definition of "intentional" under this section was not fundamental error, where charge as a whole did not include any theories additional to those alleged in indictment, and did not lessen burden of the State. Houston v. State (App. 14 Dist. 1982) 667 S.W.2d 157. Criminal Law 822(7) Because both finding of culpable mental state to engage in conduct and culpable mental state to cause result were required by wording of indictment and charge in capital murder prosecution, court did not err in instructing on both. Hernandez v. State (Cr.App. 1991) 819 S.W.2d 806, rehearing denied, certiorari denied 112 S.Ct. 2944, 504 U.S. 974, 119 L.Ed.2d 568, denial of habeas corpus affirmed 108 F.3d 554, certiorari denied 118 S.Ct. 447, 522 U.S. 984, 139 L.Ed.2d 383. Homicide 1387 Trial court acted appropriately in submitting to jury penal code definition of "intentional" due to wording of indictment and wording of application portion of charge in capital murder prosecution; indictment required finding of culpable mental state to both cause result and engage in conduct so that, in order to secure conviction under charge, State had to prove both intentional or knowing conduct of accused and intentional or knowing result. Hernandez v. State (Cr.App. 1991) 819 S.W.2d 806, rehearing denied, certiorari denied 112 S.Ct. 2944, 504 U.S. 974, 119 L.Ed.2d 568, denial of habeas corpus affirmed 108 F.3d 554, certiorari denied 118 S.Ct. 447, 522 U.S. 984, 139 L.Ed.2d 383. Homicide 1387 Trial court did not submit improper definition of "knowingly" in definitional portion of charge in prosecution for capital murder where definition of knowingly given would satisfy required culpable mental state for conviction of capital murder. Hernandez v. State (Cr.App. 1991) 819 S.W.2d 806, rehearing denied, certiorari denied 112 S.Ct. 2944, 504 U.S. 974, 119 L.Ed.2d 568, denial of habeas corpus affirmed 108 F.3d 554, certiorari denied 118 S.Ct. 447, 522 U.S. 984, 139 L.Ed.2d 383. Homicide 1387 Since the murder indictment and charge required finding of culpable mental state to engage in the conduct and cause the result, trial court did not err in instructing on both in murder prosecution. Alvarado v. State (App. 13 Dist. 1991) 821 S.W.2d 369. Homicide 1387 Instruction that required jury to find that defendant "intentionally or knowingly cause[d] the death" of victim in order to convict defendant of murder or voluntary manslaughter and that "before a person can be guilty of murder or voluntary manslaughter under the indictment, he must have intentionally or knowingly caused the death of the deceased," properly attached required mental states of intentionally or knowingly to result of causing death. Cook v. State (App. 5 Dist. 1992) 827 S.W.2d 426, petition for discretionary review granted, reversed 884 S.W.2d 485, rehearing denied, on remand. Homicide 1387 Any error resulting from jury charge on murder which failed to limit definitions of terms "knowingly" and "intentionally" to result of conduct was harmless; application paragraph of charge required jury to find that defendant intentionally and knowingly caused death of victim by shooting her, and prosecutor's jury argument, that shooting was not rendered involuntary merely because defendant did not intend result, was correct statement of law in that he did not suggest that jury could properly convict defendant if it found he intended act but not result.

Navarro v. State (App. 3 Dist. 1993) 863 S.W.2d 191, rehearing overruled, petition for discretionary review refused 891 S.W.2d 648, rehearing on petition for discretionary review denied. Criminal Law 1172.1(3) Murder defendant was not entitled to jury instructions on lesser included offenses of manslaughter and criminally negligent homicide, since there was no evidence that defendant acted negligently or recklessly; evidence showed that defendant without warning produced pistol, asked bartender if he was afraid, and then shot bartender, who had made no threatening move, had not quarreled with defendant, and was looking down when shot. Munoz v. State (App. 6 Dist. 1996) 932 S.W.2d 242. Homicide 1457 Jury instructions on definitions of "knowing" and "intentional" mental states had to be limited to each conduct element of underlying offense of aggravated robbery, even though offense implicated all three possible conduct elements for nature of conduct, result of conduct, and circumstances surrounding conduct. Fields v. State (App. 4 Dist. 1998) 966 S.W.2d 736, petition for discretionary review granted, remanded 1 S.W.3d 687, on remand 135 S.W.3d 686. Robbery 27(1) Instructions for involuntary manslaughter and criminally negligent homicide as lesser-included offenses of murder were not warranted, in that there was no evidence showing that defendant, who hit his brother twice in head with hammer after threatening to hurt him, did not intend to cause his brother's death or to inflict serious injury by committing act clearly dangerous to human life that caused brother's death. Jackson v. State (App. 5 Dist. 2003) 115 S.W.3d 326, petition for discretionary review granted, affirmed 160 S.W.3d 568. Criminal Law 814(20) Defendant was not entitled to instruction on manslaughter as lesser-included offense of capital murder, given that, while manslaughter was included within proof necessary to establish capital murder, there was no evidence that if defendant was guilty, he was guilty only of manslaughter; defendant went to victims' residence, unannounced and armed, shot adult victims, and then opened back door of car, put half of his body inside, and fatally shot child twice. Yanez v. State (App. 13 Dist. 2006) 187 S.W.3d 724. Homicide 1458 Record contained insufficient evidence to support defendant's requested jury instruction on lesser-included offense of manslaughter, though it did support instruction on murder; while defendant's testimony, that he "blanked out almost," "didn't remember anything at all," was "swinging wildly" with his "eyes closed," and that he did not intend to cause victim any physical harm by attacking him with an aluminum baseball bat, may have arguably been calculated to rebut evidence that his conduct was intentional, it did not support his contention on appeal that he merely acted recklessly. Marsh v. State (App. 3 Dist. 2003) 2003 WL 159459, Unreported, petition for discretionary review refused. Homicide 1457 36.5. ---- Lesser-included offenses, instructions Defendant was entitled to instruction on lesser included offense of manslaughter in murder prosecution; evidence presented showed that defendant did not intend to kill victim, but rather, defendant shot in direction of group to scatter group of men who were hitting his friend. Shanklin v. State (App. 1 Dist. 2005) 190 S.W.3d 154, petition for discretionary review granted. Homicide 1457 Defendant was not entitled in murder trial to jury instruction on lesser-included offense of manslaughter, even though defendant testified that he did not intend to

kill victim; defendant also testified that he stabbed victim because he knew that victim was trying to hurt him and he wanted victim to let him go, defendant admitted that he stabbed victim in highly vulnerable parts of body, and defendant's statement that he did not intend to kill victim, in context of entire record, went to self-defense and not manslaughter and, thus, did not amount to evidence from which a jury could rationally find that defendant only acted recklessly with respect to killing victim. Kennedy v. State (App. 2 Dist. 2006) 2006 WL 820015. Homicide 1458 One cannot accidentally or recklessly act in self-defense, and thus a defendant's testimony that he acted in self-defense precludes a jury instruction on an accidental or reckless murder. Perez v. State (App. 1 Dist. 2006) 2006 WL 1428909. Homicide 1380 Defendant's testimony that he acted in self-defense when he shot victim precluded a jury instruction on manslaughter as lesser-included offense of murder; defendant could not act recklessly in self-defense. Perez v. State (App. 1 Dist. 2006) 2006 WL 1428909. Homicide 1457 In determining whether there is evidence in a murder trial to support a jury instruction on recklessness, the proof of which is required for manslaughter, a statement that the defendant did not intend to kill the victim cannot be plucked out of the record and examined in a vacuum. Perez v. State (App. 1 Dist. 2006) 2006 WL 1428909. Homicide 1457 37. ---- Forgery, instructions Failing to define terms "knowingly" or "with knowledge" in application paragraph of jury charge in forgery prosecution was not egregious error requiring reversal of conviction where jury was instructed to find that defendant passed check with intent to defraud or harm another and that defendant knew check was forged writing at time it was passed; definitions of knowingly or with knowledge under forgery statute were substantially the same as common usage. Mathis v. State (App. 2 Dist. 1993) 858 S.W.2d 621, rehearing denied, petition for discretionary review refused. Criminal Law 1038.1(6) 38. ---- Involuntary manslaughter, instructions Jury was not required to be instructed in homicide trial on lesser included offense of involuntary manslaughter; defendant's claim that he did not mean to kill victim raised issue as to culpable mental state only if taken out of context, defendant was shown to have been violent, defendant made no effort to summon help for victim, defendant showed no remorse, and evidence as whole did not support rational inference that defendant consciously disregarded danger of death that his conduct created. Navarro v. State (App. 3 Dist. 1993) 863 S.W.2d 191, rehearing overruled, petition for discretionary review refused 891 S.W.2d 648, rehearing on petition for discretionary review denied. Homicide 1458 Defendant was not entitled to instruction on involuntary manslaughter as lesser included offense of murder, notwithstanding his testimony that he did not intend to kill victim as defendant intended to shoot victim and was engaged in voluntary conduct; defendant purchased gun after burglaries occurred at his home, test-fired gun and knew how shells were ejected, and kept loaded gun under his pillow with safety off and hammer pulled back, when defendant heard and saw victim coming into

house, he pointed gun, which he agreed was deadly weapon, straight at victim and fired, defendant testified that he "blowed" victim "back out the door", and he testified that he wanted to wound victim when he fired. Burnett v. State (App. 4 Dist. 1993) 865 S.W.2d 223, petition for discretionary review refused. Homicide 1458 Despite contention of defendant accused of murder that he thought victim had been pulled out from under car before defendant backed up over him, defendant was not entitled to have jury instructed on lesser included offense of involuntary manslaughter, since, if defendant believed that victim was no longer under car, he could not have consciously disregarded substantial and unjustifiable risk to victim, as required for manslaughter conviction. Barrera v. State (App. 8 Dist. 1996) 914 S.W.2d 211, rehearing overruled, petition for discretionary review refused. Homicide 1458 Defendant charged with murder was not entitled to jury instruction on lesser included offense of involuntary manslaughter, as record did not reflect that defendant was guilty only of disregarding known substantial and unjustifiable risk that serious bodily injury would result; defendant's claim that he did not intend to kill victim would have raised issue as to his culpable mental state only if taken alone and out of context, defendant's actions allegedly taken in selfdefense were deliberate, and defendant fled scene rather than attempt to get help for victim or help victim himself. Johnson v. State (App. 14 Dist. 1996) 915 S.W.2d 653, petition for discretionary review refused. Homicide 1458 Evidence showed only focused, purposeful action without a hint of recklessness when defendant shot his wife at close range after argument that took place one hour earlier, and thus, evidence did not warrant instruction on involuntary manslaughter as lesser-included offense of murder; defendant conceded he knew how gun worked, including safety, and danger gun posed, and defendant's hand did not act alone but, rather, rest of his body got him out of house and into truck, drove across town to church, and walked into fellowship hall where defendant shot his wife. Gaston v. State (App. 3 Dist. 1996) 930 S.W.2d 222. Homicide 1150; Homicide 1458 Defendant was not entitled to charge on lesser-included offense of manslaughter in murder prosecution; although defendant testified that he did not intend to shoot victim, testimony was presented in context of gun going off accidentally due to being bumped, thus failing to establish that he was reckless in having shot gun, defendant did not testify that he voluntarily discharged his gun, and fact that defendant may have recklessly created circumstances leading up to complainant's having been shot failed to raise issue of manslaughter. Gilbert v. State (App. 1 Dist. 2005) 2005 WL 2470794. Homicide 1457 Defendant, convicted of murder, was not entitled to an instruction on lesserincluded offense of criminally negligent homicide for knowingly starting a fire in her apartment which caused the death of two victims, although defendant contended that she was unaware that setting a chair on fire created a substantial and unjustifiable risk of death; evidence that defendant left her insurance papers, her eyeglasses, her purse, her identification and several valuable guns while running out of apartment, along with other evidence, including that she was distraught, did not support her contention that she was unaware of risk of death. Proffitt v. State (App. 1 Dist. 2003) 2003 WL 22512074, Unreported, petition for discretionary review dismissed as untimely filed. Homicide 1457 Evidence did not warrant jury instruction on lesser-included offense of manslaughter at defendant's murder trial; defendant testified at trial that he did not hit victim, and that he had no recollection of burning or kicking victim, when

questioned by State about bruises and cuts on victim's body, defendant responded by stating, "I didn't do it," and defendant testified that he was intoxicated on night of offense and that victim had hit him on previous occasions, which combined testimony did not permit jury to find that defendant was only guilty of manslaughter. Calhoun v. State (App. 11 Dist. 2003) 2003 WL 360056, Unreported, rehearing overruled, petition for discretionary review refused. Homicide 1457 39. ---- Aggravated assault, instructions Defendant was not entitled to instruction on aggravated assault as lesser-included offense in murder prosecution where only defense defendant employed was alibi; state's evidence tended to show that defendant shot point blank into car in which murder victim was situated, thus engaging in conduct reasonably certain to cause death, suggesting that defendant acted intentionally and knowingly. Murray v. State (App. 6 Dist. 1993) 861 S.W.2d 47, petition for discretionary review refused. Assault And Battery 96(1) State's failure to allege recklessness in indictment and subsequent failure to allege act or acts relied upon to constitute recklessness precluded inclusion of recklessness in jury instruction on aggravated assault; although defendant was charged with intentionally and knowingly shooting victim, jury instructions impermissibly allowed him to be convicted for recklessly disregarding risk that one of the shots he fired at another victim might have hit someone else. Reed v. State (Cr.App. 2003) 117 S.W.3d 260, on remand 2004 WL 225547. Criminal Law 795(2.30) V. T. C. A., Penal Code � 6.03, TX PENAL � 6.03 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.