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Texas Court of Criminal Appeals Criminal Law No. 1410-01, 5/14/2003. Click here for the full text of this decision FACTS: The appellant was convicted of aggravated assault. Texas Penal Code �22.02(a)(2). The jury assessed punishment at 20 years confinement and a $10,000 fine. The appellant appealed the conviction, stating that the trial court improperly charged the jury by including the mental state of recklessness when the indictment alleged only the mental states of intentionally and knowingly. The court of appeals affirmed the trial court’s judgment. HOLDING: Reversed and remanded. The inclusion in the jury instructions of a lower culpable mental state than that charged in the indictment can lead to the possibility that the defendant was convicted of an offense that is allowed under the statute but was not alleged in the indictment. This issue arose in Wilson v. State, 625 S.W.2d 331 (Tex. Crim. App. 1981), where the defendant was indicted for aggravated robbery with the culpable mental states of intentionally and knowingly. The court found error because the application paragraph of the jury charge allowed him to be convicted of aggravated robbery if the jury found that he acted intentionally, knowingly or recklessly. The statute allows conviction of aggravated assault if the person recklessly caused bodily injury to another and used or exhibited a deadly weapon during the assault. However, this was not charged in the indictment. The indictment charged appellant only with intentionally and knowingly causing bodily injury to another and using or exhibiting a deadly weapon during the assault. Thus, while the jury instructions authorized conviction of an offense that is allowed under the statute, it was not an offense for which appellant was indicted. The state argued that the court of appeals did not err by relying on Rocha v. State, 648 S.W.2d 298 (Tex. Crim. App. 1982), and Zuliani v. State, 903 S.W.2d 812 (Tex. App.-Austin 1995, pet. ref’d), because the current case could also be treated as a lesser included offense. However, because neither party requested a lesser included offense jury instruction and the lesser included offense issue was not raised at trial, the court will not decide this case based on an issue that was not presented to the trial court or preserved for appeal. The failure to request a lesser included offense instruction in the jury charge precludes the state’s use of Texas Code of Criminal Procedure articles 37.08 and 37.09(3) to now bring in the culpable mental state of recklessness that was not alleged in the indictment. Article 37.09 determines whether an offense is a lesser included offense. It states in part that an offense is a lesser included offense if it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission. This must be read in conjunction with article 37.08 which says: “In a prosecution for an offense with lesser included offenses, the jury may find the defendant not guilty of the greater offense, but guilty of any lesser included offense.” Thus, a conviction for a lesser included offense requires not only a lesser included offense instruction to the jury, but also an acquittal for the charged offense, neither of which are present in this case. Because this issue was not presented to the trial court as a lesser included offense, Rochawas incorrectly relied upon by the court of appeals. Instead, the reasoning in Wilsonapplies to this case. Similarly, the state’s failure to allege recklessness in the indictment and subsequent failure to allege the act or acts relied upon to constitute recklessness preclude the inclusion of recklessness in the jury charge. Under article 21.15, whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence. Article 21.15 does not keep the parties from submitting a lesser included offense with a reckless culpable mental state to the jury. However, when recklessness is left out of the indictment for the charged offense, and no lesser included offense is submitted to the jury (as in this case and in Wilson) then article 21.15 precludes the inclusion of recklessness or criminal negligence in the jury instructions for the charged offense. Texas Penal Code �6.03 separately defines the culpable mental states and the conduct described by each is different. Reckless conduct is different from knowing conduct and from intentional conduct, as indicated by �6.03 and as defined in the instructions to the jury. Although the appellant was charged with intentionally and knowingly shooting Anita Gaitlin, the jury instructions allowed him to be convicted for recklessly disregarding the risk that one of the shots he fired at Robinson may have hit someone else. Therefore, the jury instructions expanded the indictment. It is possible that the jury found the appellant guilty of recklessly causing the bodily injury, which is conduct that was not alleged in the indictment. The court is not holding that appellant was charged with a different or separate offense than that which he was possibly convicted of; rather the court is saying that either the indictment should have accurately listed the applicable mental states or the charge should have limited the jury instructions to the mental states alleged in the indictment. The court holds that the trial court improperly broadened the indictment by including “recklessly” in the jury instructions when the indictment alleged “intentionally” and “knowingly.” OPINION: Meyers, J.; Price, Johnson, Keasler and Holcomb, JJ., join. Keller, P.J., Womack and Hervey, JJ., concur in the judgment. Cochran, J., dissents. CONCURRENCE: Johnson, J.; “The prescribed punishment ranges appear to be based on harm to another, rather than on mental state. An offense under � 22.01(a)(1) requires physical injury and is punishable as a Class A misdemeanor, while (a)(2) and (a)(3) do not involve physical injury and are punishable by fine only. Clearly, (a)(2) and (a)(3) are lesser-included offenses of (a)(1), because they are proved by less than all the facts required to prove (a)(1), specifically, physical injury. Subsection (a)(1) however, prescribes the same punishment for all three included mental states, indicating that the gravamen of assault under (a)(1) is injury, not the manner in which it was inflicted, whether intentionally, knowingly, or recklessly. Notice requirements mandate that manner and means be plead in the indictment so that the defendant has an adequate opportunity to prepare and present a defense. The state cannot allege murder by knife, prove murder by slow poison, and still obtain a valid conviction. Here, the state gave notice that the manner of commission was knowingly and intentionally. It may not now rely on recklessly. Indeed, that reliance is foreclosed by the state’s failure to comply with the specific notice requirements of Code of Crim. Proc. Art. 21.15.”

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