6 03 Definitions of Culpable Mental States

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 "nature-
oriented"; 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 nature-
of-conduct element, that defendant placed his sexual organ in the female sexual
organ of the victim, required a culpable mental state; result element and nature-
of-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
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
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
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
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
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
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
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-of-
conduct 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.
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 lesser-

included 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
"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
"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
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.
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
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
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
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
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
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
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
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,
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
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
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
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,
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
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
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
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
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
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,
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
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
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.
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.
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
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
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.
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
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
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
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
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.
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
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
Before jury charge on criminally negligent homicide is required, record must

contain evidence showing defendant's unawareness of risk of death. Ybarra v. State
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 lesser-

included 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
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
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
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 self-
defense 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 lesser-

included 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.
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.

6 03 Definitions of Culpable Mental States

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6 03 Definitions of Culpable Mental States

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V.T.C.A., Penal Code � 6.

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

(c) A person acts recklessly, or is reckless, with respect to circumstances

(d) A person acts with criminal negligence, or is criminally negligent, with

HISTORICAL AND STATUTORY NOTES

2003 Main Volume

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.

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

Indictment alleging acts of recklessness or criminal negligence, see Vernon's

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

LAW REVIEW COMMENTARIES

Negligence: Reappraisal or its validity as basis for criminal liability and

Particularity and precision in Texas indictments and informations: What is

Probability theory and constructive possession of narcotics. 17 Hous.L.Rev. 541

Unconstitutionality of criminal liability without fault: An argument for a

2003 Main Volume

Criminal Law 19.

Westlaw Topic No. 110.

C.J.S. Criminal Law � 31.

26 ALR 5th 1, Necessity and Sufficiency of Showing, in Criminal Prosecution Under

65 ALR 4th 838, Sufficiency of Evidence, for Purposes of Death Penalty, to

94 ALR 2nd 1353, Criminal Offense Predicated Upon Indecent Exposure.

169 ALR 315, Comment Note.--Duty in Instructing Jury in Criminal Prosecution to

161 ALR 10, Test or Criterion of Term "Culpable Negligence," "Criminal

131 ALR 1322, Criminal Responsibility of One Co-Operating in Offense Which He is

115 ALR 357, Sufficiency of Indictment or Information Charging in Words of Statute

116 ALR 1459, Duty of Court to Instruct Regarding Exculpatory or Mitigating

110 ALR 1233, Validity, Construction, and Application of Statutes or Ordinances

7 ALR 135, Necessity of Repeating Definition of Legal or Technical Term in

3 ALR 784, Admissibility in Criminal Prosecution of Evidence to Prove Other Crime

13 Am. Jur. Trials 295, Vehicular Homicide.

14 Am. Jur. Trials 619, Juvenile Court Proceedings.

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

TX Jur. 3d Criminal Law � 307, Lesser Included Offenses -- Negligent Homicide as

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 � 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.