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(a) Except as provided in Subsection (b), a person does not commit an offense
unless he intentionally, knowingly, recklessly, or with criminal negligence
engages in conduct as the definition of the offense requires.
(b) If the definition of an offense does not prescribe a culpable mental state, a
culpable mental state is nevertheless required unless the definition plainly
dispenses with any mental element.
(c) If the definition of an offense does not prescribe a culpable mental state,
but one is nevertheless required under Subsection (b), intent, knowledge, or
recklessness suffices to establish criminal responsibility.
(d) Culpable mental states are classified according to relative degrees, from
highest to lowest, as follows:
(1) intentional;
(2) knowing;
(3) reckless;
(e) Proof of a higher degree of culpability than that charged constitutes proof of
the culpability charged.
CREDIT(S)
Acts 1973, 63rd Leg., p. 883, ch. 399, � 1, eff. Jan. 1, 1974. Amended by Acts
1993, 73rd Leg., ch. 900, � 1.01, eff. Sept. 1, 1994; Acts 2005, 79th Leg., ch.
1219, � 1, eff. Sept. 1, 2005.
"The change in law made by this Act applies only to an offense committed on or
after the effective date of this Act. An offense committed before the effective
date of this Act is covered by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose. For purposes of this
section, an offense is committed before the effective date of this Act if any
element of the offense occurs before the effective date."
Acts 1993, 73rd Leg., ch. 3, � 1, in subsecs. (a) and (c), following "Subsection
(b)", deleted "of this section".
Prior Laws:
CROSS REFERENCES
Intoxication and alcoholic beverage offenses, culpable mental state not required
for convictions, see V.T.C.A., Penal Code � 49.11.
Aggravated robbery--Texas style. Jim D. Bowmer, Bob Burleson and Luther E. Jones,
Jr., 33 Baylor L.Rev. 947 (1981).
Criminal law--Culpable mental state. Mike McColloch and David W. Coody, 37 Sw.L.J.
379 (1983).
Indictments and motions to quash: Problems of Thomas v. State and Ferguson v.
State. 34 Baylor L.Rev. 459 (1982).
Indictments under new Texas Penal Code. Percy Foreman and Luther E. Jones, Jr., 15
Hous.L.Rev. 1 (1977).
LIBRARY REFERENCES
RESEARCH REFERENCES
Encyclopedias
McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 1.2, Model Complaint,
Information and Indictment.
McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 25.3, Unlawful Possession
of Firearm.
McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 28.4, Driving While
Intoxicated -- First Offense.
McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 53.2, Motion to Quash --
General.
McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 99.2, Model Charge.
McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 109.1, Model for Dictating
Objections to the Court's Charge.
Dix and Dawson, 41 Tex. Prac. Series � 19.23, Showing that Accused Committed
Charged Offense -- in General.
Dix and Dawson, 41 Tex. Prac. Series � 20.141, Alleging the Necessary Mens Rea --
in General.
Dix and Dawson, 41 Tex. Prac. Series � 20.142, Culpable Mental State Requirements.
Dix and Dawson, 41 Tex. Prac. Series � 20.143, Penal Code s6.02's Requirements.
Dix and Dawson, 41 Tex. Prac. Series � 20.144, Alleging "Specific Intents" or
"Particular Culpable Mental States".
Dix and Dawson, 41 Tex. Prac. Series � 20.145, Alleging Other Required Culpable
Mental States.
Dix and Dawson, 41 Tex. Prac. Series � 20.146, Determining the Applicability of
Penal Code Section 6.02.
Dix and Dawson, 41 Tex. Prac. Series � 20.148, Defining a Required Culpable Mental
State.
Dix and Dawson, 41 Tex. Prac. Series � 20.149, Alleging a Required Culpable Mental
State -- in General.
Dix and Dawson, 41 Tex. Prac. Series � 20.153, Culpable Mental States Concerning
Aggravating Elements.
Dix and Dawson, 41 Tex. Prac. Series � 20.154, Offenses Requiring Multiple
Culpable Mental States.
Dix and Dawson, 41 Tex. Prac. Series � 20.146A, Section 6.02 as Applied to
Elements for Which No Culpable Mental State is Prescribed.
Civins, Hall & Sahs, 45 Tex. Prac. Series � 4.15, The Intent Element of
Environmental Crimes.
Civins, Hall & Sahs, 45 Tex. Prac. Series � 4.13, Initiation of Judicial
Enforcement Action.
NOTES OF DECISIONS
In general 1
Accidental homicide 5
Admissibility, evidence 20
Assaults 3
Burden of proof 19
Circumstantial evidence 21
Evidence 20-22
Evidence - Admissibility 20
Homicide 4-6, 14
Homicide - In general 4
Instructions 23-28
Instructions - In general 23
Miscellaneous offenses 11
Necessity of instructions 28
Ordinances 12
Rape 7
Robbery 8
Strict liability 2
Sufficiency of evidence 22
Sufficiency of instructions 25
Traffic offenses 9
1. In general
Criminal negligence, not simple negligence, is lowest degree of conduct for which
criminal responsibility may be imposed. Cole v. State (Cr.App. 1977) 556 S.W.2d
343. Criminal Law 23
Under this section, any violation of penal statute requires culpable mental state.
William Sommerville & Son, Inc. v. Carter (Civ.App. 1978) 571 S.W.2d 953, affirmed
584 S.W.2d 274. Criminal Law 21
The choice by the legislative and executive branches of the state government to
classify all offenses as crimes, and to subject offenders to procedural
consequences, supports the general presumption against strict liability. Aguirre
v. State (Cr.App. 1999) 22 S.W.3d 463, modified on denial of rehearing. Criminal
Law 307
2. Strict liability
Proof of offense of air pollution did not require establishment of culpable mental
state, since to require anything other than strict liability standard would be to
deny public the right to be protected from hazardous activities. Exxon Co., U.S.A.
v. State (App. 1 Dist. 1982) 646 S.W.2d 536, petition for discretionary review
refused. Environmental Law 744
If applicable, the following features would indicate that the legislature intended
to impose liability without fault, or intended to dispense with a culpable mental
state: (1) a risk of serious harm to the public is likely to result from a
violation of the statute; (2) the legislative history of the statute indicates an
intention to dispense with fault; (3) the statute imposes less severe punishment
for its violation; (4) the accused has some opportunity to ascertain the true
facts as to why he is being charged with a violation without proof of fault; (5)
prosecuting officials will have much more difficulty proving the accused committed
the offense if the statute requires proof of mental culpability; and (6) the fewer
the number of prosecutions that are expected to occur, the more likely the
legislature meant to require the prosecuting officials to go into the issue of
fault. State v. Abdallah (App. 2 Dist. 2001) 64 S.W.3d 175, petition for
discretionary review refused. Criminal Law 21
3. Assaults
4. Homicide--In general
Offense of murder, committed when a person intends to cause serious bodily injury
and commits an act clearly dangerous to human life that causes death of an
individual, is a result type of crime and requires a showing that a person, acting
with conscious objective or desire to create a substantial risk of death, serious
permanent disfigurement, or protracted loss or impairment of any bodily member or
organ, causes death of an individual, and also requires a showing that act
intended to cause serious bodily injury was objectively clearly dangerous to human
life. Lugo-Lugo v. State (Cr.App. 1983) 650 S.W.2d 72. Homicide 528
5. ---- Accidental homicide
Where a pistol accidentally dropped upon the floor is discharged and a person is
thereby killed, the defendant by whom the pistol was dropped is, under an
indictment for homicide, entitled to an acquittal. Hodge v. State (Cr.App. 1910)
60 Tex.Crim. 157, 131 S.W. 577. Homicide 762
To kill while playing with a gun believed to be unloaded, was no offense. McCray
v. State (Cr.App. 1911) 63 Tex.Crim. 522, 140 S.W. 442.
Where two persons were killed in one transaction, the fact that more than one shot
was fired does not, as a matter of law, render it unsusceptible of proof that both
were killed by one act, in one case intentional and in the other accidental, since
a series of shots may be fired with one volition. Spannell v. State (Cr.App. 1918)
83 Tex.Crim. 418, 203 S.W. 357. Criminal Law 739(4)
That accused was negligent or careless in discharging his pistol would not render
him guilty of "murder" for what otherwise would be an "accidental homicide." Burt
v. State (Cr.App. 1940) 140 Tex.Crim. 410, 145 S.W.2d 886. Homicide 762
An "accidental killing" arises when the act that causes the death is done
unintentionally. Harris v. State (Cr.App. 1946) 150 Tex.Crim. 38, 198 S.W.2d 264.
Homicide 762
The killing of another by accident and mistake by running into her with automobile
which defendant was operating while under the influence of intoxicating liquor was
not excusable homicide, since defendant was not prosecuting a lawful object in a
lawful manner. Flowers v. State (Cr.App. 1947) 150 Tex.Crim. 467, 202 S.W.2d 462,
supplemented 150 Tex.Crim. 467, 203 S.W.2d 539. Automobiles 346
7. Rape
Intent, knowledge or recklessness are the applicable mental states and suffice to
establish criminal responsibility for offense of rape. Braxton v. State (Cr.App.
1975) 528 S.W.2d 844. Rape 5
8. Robbery
Fact that lesser included offense of robbery may be committed by culpable mental
state of recklessness even though not alleged in the indictment for the greater
offense of aggravated robbery does not preclude a charge thereon since by
definition recklessness is a lower culpable mental state than "intentional" or
"knowing." Little v. State (Cr.App. 1983) 659 S.W.2d 425. Robbery 27(5)
9. Traffic offenses
Culpable mental state is not requisite for charging offense of driving automobile
while intoxicated, speeding, or for many other traffic type offenses. Honeycutt v.
State (Cr.App. 1981) 627 S.W.2d 417. Automobiles 351.1
Legislature, through enactment of this section and � 1.03 and providing that
provisions of certain titles of Penal Code apply to offenses defined by Civil
Statutes unless statute defining offense provides otherwise, did not intend to
require proof of culpable mental state for offense of driving while license
suspended. Clayton v. State (App. 7 Dist. 1983) 652 S.W.2d 810. Automobiles 352
Statutory language "by accident and mistake" for offense of intoxication assault
while operating vehicle dispenses with any mental element. Stidman v. State (App.
1 Dist. 1998) 981 S.W.2d 227. Automobiles 347
10. Failure to stop and render aid
The culpable mental state required for offense of failing to stop and render aid
is that accused had knowledge of circumstances surrounding his conduct, i.e., had
knowledge that an accident had occurred; such knowledge is an element of the
offense, and therefore must be alleged in the indictment. Goss v. State (Cr.App.
1979) 582 S.W.2d 782. Automobiles 336
This section applies to offense of failing to stop and render aid, even though
offense is located in civil statutes and not in Penal Code. Goss v. State (Cr.App.
1979) 582 S.W.2d 782. Automobiles 336
Although � 30.02 governing criminal trespass does not prescribe a culpable mental
state, a culpable mental state of intentionally, knowingly, or recklessly acting
is required under this section prescribing such a mental state if the definition
of an offense does not prescribe a culpable mental state. West v. State (Cr.App.
1978) 567 S.W.2d 515. Trespass 76
Section 38.05 making it an offense if, with intent to hinder the arrest of
another, a person aids in providing the other with any means of avoiding arrest or
effecting escape prescribes only one mental state, that being "with intent" to
hinder arrest, and does nor prescribe a lesser culpable mental state which use of
the terms "knowingly" or "with knowledge" would have prescribed. Garcia v. State
(Cr.App. 1982) 640 S.W.2d 939. Obstructing Justice 1
Under subsec. (b) of this section, a culpable mental state is a required element
of the offense of endless chain scheme. Crawford v. State (Cr.App. 1983) 646
S.W.2d 936. Consumer Protection 50
Since � 36.09 prohibiting the offering of a gift to a public servant does not
prescribe a culpable mental state, the required mental state for such offense, is
either intent, knowledge, or recklessness. Hubbard v. State (App. 5 Dist. 1984)
668 S.W.2d 419, petition for discretionary review granted, remanded 739 S.W.2d
341, on remand 770 S.W.2d 31, petition for discretionary review refused, rehearing
on petition for discretionary review denied. Bribery 1(1)
12. Ordinances
City ordinance's "no touch" provision, which prohibited touching between nude
performer and customer, did not burden more protected expression than was
essential to further city's interest in preventing prostitution, drug dealing, and
assault, and ordinance was thus not unconstitutionally overbroad, despite topless
bar's claim that, because ordinance did not specify requisite mental state, it
criminalized accidental or inadvertent touching; under Texas law, ordinance
required culpable mental state and, thus, did not criminalize inadvertent or
negligent touching. Hang On, Inc. v. City of Arlington, C.A.5 (Tex.)1995, 65 F.3d
1248. Constitutional Law 90.4(5)
"No touch" provision of city code regulating sexually oriented businesses and
conduct of their employees was unconstitutional and void restriction on free
expression; provision failed to restrict protected conduct narrowly to do only
what was necessary to prevent "secondary effects" of adult cabarets. State v.
Howard (App. 5 Dist. 2005) 172 S.W.3d 190, rehearing overruled. Constitutional Law
90.4(1); Constitutional Law 90.4(5)
Indictment which alleged that offense of credit card abuse was committed
"knowingly and intentionally" sufficiently alleged a culpable mental state.
Baldwin v. State (Cr.App. 1976) 538 S.W.2d 109. Larceny 29
Where indictment in forgery prosecution alleged that act was committed "with
intent to defraud or harm another," which is essential mental element, indictment
was not fundamentally defective for failing to allege culpable mental state. Jones
v. State (Cr.App. 1978) 571 S.W.2d 191. Forgery 27
Since culpable mental state was required by this section, complaint alleging
violation of municipal ordinance proscribing negligent collision, which did not
allege that defendant acted with intent, knowledge, recklessness or criminal
negligence, was fundamentally defective for failure to allege culpable mental
state. Honeycutt v. State (Cr.App. 1981) 627 S.W.2d 417. Municipal Corporations
639(1)
Omission of words "intent to promote or assist the commission of the offense" from
indictment under which defendant, a nonpublic official, was convicted of official
misconduct was not fundamental error as although defendant could not commit the
offense, as opposed to aiding the public official in committing the offense,
defendant could be charged as if he had directly committed the offense and
indictment facially complied with requirements of this section. Wooley v. State
(App. 3 Dist. 1982) 629 S.W.2d 867, review refused. Criminal Law 1032(5)
Indictment sufficiently charged a culpable mental state for the offense of theft
of an automobile, where the indictment charged that defendant unlawfully
appropriated the automobile with intent to deprive complainant of it. Miles v.
State (App. 12 Dist. 1982) 642 S.W.2d 827. Larceny 29
Indictment which alleged that defendant acted together with codefendant, when
codefendant committed aggravated robbery, was fundamentally defective because
indictment failed to allege that when defendant acted together with codefendant,
she did so "with intent," or that she acted with culpable mental state of either
"intentional" or "knowing." Thompson v. State (Cr.App. 1985) 697 S.W.2d 413.
Robbery 17(2)
Indictment for attempted rape was fundamentally defective for failure to allege
any culpable mental state as required by this section, requiring reversal of
conviction and dismissal of indictment. Zachery v. State (Cr.App. 1977) 552 S.W.2d
136. Criminal Law 1167(1); Rape 21
Indictment that alleged that defendant "knowingly and intentionally had sexual
intercourse" with the complainant and further alleged that he compelled her
submission to such intercourse sufficiently alleged a culpable mental state in the
aggravation portion of the indictment for aggravated rape of a child. Jason v.
State (Cr.App. 1979) 589 S.W.2d 447. Rape 21
Indictment, which alleged that petitioner carried on or about his person a handgun
on premises licensed for sale and consumption of alcoholic beverages, failed to
allege any culpable mental state as required by � 46.02 which provides that person
commits offense if he intentionally, knowingly or recklessly carries on or about
his person a handgun, and was therefore fundamentally defective. Ex parte Garcia
(Cr.App. 1976) 544 S.W.2d 432. Weapons 17(1)
17. ---- Failure to stop and render aid, indictments and complaints
Indictment, charging defendant with offense of failing to stop and render aid,
which failed to allege that defendant knew that accident had occurred, failed to
allege required culpable mental state of offense, even though indictment did
allege that defendant did intentionally and knowingly drive and operate his
automobile. Goss v. State (Cr.App. 1979) 582 S.W.2d 782. Automobiles 351.1
Indictment alleging failure to stop and render aid failed to allege a culpable
mental state, in that allegation that injuries made necessity of treatment
apparent did not satisfy requirement that indictment allege that actor knew an
accident involving victim occurred. Salazar v. State (Cr.App. 1979) 589 S.W.2d
412. Automobiles 351.1
Felony information charging failure to stop and render aid which did not allege
knowledge that an accident had occurred was not fatally defective since
information expressly alleged that defendant intentionally and knowingly failed to
stop and render assistance and he could not have knowingly failed to render
assistance without having had knowledge that an accident had occurred. Abrego v.
State (Cr.App. 1980) 596 S.W.2d 891. Automobiles 351.1
Indictment alleging that defendant did intentionally and knowingly drive and
operate an automobile, but failing to allege that defendant knew that accident had
occurred, failed to allege requisite culpable mental state of offense of failure
to stop and render aid. Brown v. State (Cr.App. 1980) 600 S.W.2d 834. Automobiles
351.1
Indictment stating that defendant, "did then and there unlawfully with intent to
arouse the sexual desire of the Defendant have sexual contact * * *" sufficiently
alleged culpable mental state of defendant to charge indecency with child. Clark
v. State (Cr.App. 1977) 558 S.W.2d 887. Infants 20
Indictment which alleged that defendant engaged in sexual abuse of child "with
intent to arouse and gratify the sexual desire of" defendant was not subject to
motion to quash for failure to allege more general culpable mental state. Tapley
v. State (App. 4 Dist. 1984) 673 S.W.2d 284, petition for discretionary review
refused. Sodomy 5
Proof of culpable mental state is not required in prosecutions for driving while
intoxicated; pleadings are not required to allege, and proof is not required to
show, that person who is charged with driving and operating a motor vehicle on a
public highway while intoxicated did so either intentionally, knowingly,
recklessly, or with criminal negligence. Owen v. State (Cr.App. 1975) 525 S.W.2d
164. Automobiles 352
Under this section and �� 21.02, 21.03, and 21.09, in order to establish criminal
responsibility for the offense of rape, aggravated rape, or rape of a child, State
must allege and prove that defendant acted intentionally, knowingly or recklessly.
Ex parte Smith (Cr.App. 1978) 571 S.W.2d 22. Rape 35(2)
20. Evidence--admissibility
Where there was a plea of accidental homicide and an issue as to whether the
shooting was intentional, any circumstance or declaration showing accused's state
of mind and which would throw light on such issue was admissible. Singleton v.
State (Cr.App. 1909) 57 Tex.Crim. 560, 124 S.W. 92. Homicide 986; Homicide 987
Ordinarily, the culpable mental state must be inferred from the acts of the
accused or the surrounding circumstances, which include not only acts, but words
and conduct. Lee v. State (App. 12 Dist. 2000) 21 S.W.3d 532, rehearing overruled,
habeas corpus granted in part 2005 WL 774882, petition for discretionary review
refused, rehearing on petition for discretionary review denied, habeas corpus
denied 2006 WL 1305169. Criminal Law 312
Jury specifically found that defendant, as party to crime, used deadly weapon to
commit robbery such that trial court was authorized to enter an affirmative
finding in the judgment of conviction; by finding defendant guilty "as alleged in
indictment," that a deadly weapon was used, jury found that defendant intended
that a deadly weapon would be used during course of aggravated robbery, thereby
necessarily finding that defendant knew a deadly weapon would be used. Harris v.
State (App. 1 Dist. 2003) 2003 WL 360264, Unreported, petition for discretionary
review refused. Sentencing And Punishment 370
Mere evidence that accused did not know that the substance she sold was
intoxicating was insufficient to raise the issue that she acted by accident.
Mollenkopf v. State (Cr.App. 1912) 68 Tex.Crim. 598, 151 S.W. 799. Intoxicating
Liquors 239(4)
On a trial for homicide, in which accused claimed that he was intoxicated and that
deceased was shot accidentally, evidence was sufficient to support a conviction
for murder. Gomez v. State (Cr.App. 1914) 75 Tex.Crim. 239, 170 S.W. 711. Homicide
1205
Mere statement of state's witness that "The gun went off", did not, under
circumstances, establish that shooting was accidental. Sloan v. State (Cr.App.
1966) 409 S.W.2d 412. Homicide 1205
Evidence was legally sufficient to support finding that juvenile recklessly caused
serious bodily injury to victim, for purpose of delinquency proceeding, when he
choked victim while playing "pass out"; juvenile admitted that choking someone was
dangerous, that he didn't think of the possibility the victim would hit the ground
if he passed out, and that he didn't plan on trying to catch the victim. In re
J.A.P. (App. 3 Dist. 2002) 2002 WL 31317256, Unreported. Infants 153
Evidence was legally sufficient to support finding that juvenile committed assault
on a public servant, in support of delinquency adjudication; teacher intervened in
an assault on an injured student, she informed the other students that she was a
teacher and commanded that they leave the injured student alone, and juvenile
continued to follow teacher and deliver blows, at least two of which struck
teacher. In re F.C. (App. 3 Dist. 2003) 2003 WL 21282766, Unreported. Infants 153
Where accused was charged with killing deceased by discharging a pistol while
struggling with her husband, an instruction on negligent homicide, making
accused's guilt depend on whether he knew deceased was in danger of being killed,
is erroneous where there is no evidence that accused knew deceased was in same
room when struggle took place. Merritt v. State (Cr.App. 1919) 85 Tex.Crim. 565,
213 S.W. 941. Homicide 1492
An instruction that, if jury found from evidence that defendant shot decedent by
accident and not while intending to commit robbery, jury should acquit defendant,
was not subject to objection that it was a comment on weight of evidence, that it
restricted defendant's rights with reference to an affirmative charge on
accidental killing, that it was an undue emphasis on state's theory of case and
prejudicial and did not make an application of the law to the facts as testified
by defendant. Cook v. State (Cr.App. 1948) 152 Tex.Crim. 51, 211 S.W.2d 224.
Criminal Law 763(1); Criminal Law 811(1); Criminal Law 814(8); Homicide 1492
In murder prosecution, where defendant testified that she was restrained of her
liberty by deceased, and drew pistol not with intent to kill him, but to induce
him to release her, and in the scuffle which ensued over the pistol it was
accidentally discharged, defendant was entitled to an instruction on accidental
discharge of pistol. Matterson v. State (Cr.App. 1941) 142 Tex.Crim. 250, 152
S.W.2d 352. Homicide 1492
Murder prosecution instruction that fact that defendant was armed would not
deprive him of defense of accident did not restrict defendant's rights under his
defense of accident. Sloan v. State (Cr.App. 1966) 409 S.W.2d 412. Homicide 1492
Where the issue was whether the killing a decedent was accidental or the result of
negligence, the court in its charge defined murder in the first and second
degrees, and negligent homicide in the first and second degrees, and stated that
if accused fired the pistol accidentally without intending to do so, and thereby
killed decedent, and if he did not intend to kill decedent, accused was not guilty
of negligence, sufficiently submitted the issue of accidental homicide.
Biggerstaff v. State (Cr.App. 1910) 59 Tex.Crim. 575, 129 S.W. 840. Homicide 1492
Charges that accused should be acquitted, if the jury had a reasonable doubt
whether he intended to kill or at the time he pointed his gun knew it was loaded
or cocked, affirmatively presented the issue of accidental homicide. Windham v.
State (Cr.App. 1915) 76 Tex.Crim. 209, 173 S.W. 661.
Failure to instruct that if accused did not know deceased was in vacant room and
pistol was fired without intent to injure or kill deceased, or jury had reasonable
doubt about matter, defendant should be acquitted, was error, though court
instructed generally on law of excusable homicide. Latta v. State (Cr.App. 1933)
124 Tex.Crim. 618, 64 S.W.2d 968. Homicide 1492
In murder prosecution, instruction that jury should acquit if they believed beyond
reasonable doubt that pistol was accidentally discharged in some unaccountable way
without intention on part of defendant, and that shot accidentally and without
intention struck deceased's body, was sufficient on question of intent, and
refusal to define word "voluntary" was not error. Beverly v. State (Cr.App. 1938)
134 Tex.Crim. 331, 115 S.W.2d 652. Criminal Law 800(7); Homicide 1492
Where the court correctly submitted the issue of excusable homicide by accident or
misfortune, there was no error in refusing the defendant's special charge thereon.
Cooper v. State (1914) 72 Tex.Crim. 250, 161 S.W. 1094; Posos v. State (1925) 100
Tex.Crim. 54, 271 S.W. 902.
In prosecution of schoolboy for shooting teacher, where issue of accidental
discharge of pistol was not in case, court properly refused special charge
presenting it. Wilson v. State (Cr.App. 1916) 80 Tex.Crim. 442, 190 S.W. 155.
Homicide 1492
Jury finding that defendant knowingly caused serious bodily injury to children
necessarily encompassed finding that she recklessly caused them serious bodily
injury, where trial court's charge permitted jury to convict on lesser included
offense of reckless injury. Patterson v. State (App. 2 Dist. 2001) 46 S.W.3d 294,
appeal after new sentencing hearing 101 S.W.3d 150, petition for discretionary
review refused. Infants 20
Where defendant does not object at trial to omission of culpable mental state in
application paragraph of jury charge, reversal is warranted only if defendant can
show the error caused him or her egregious harm, i.e., that he or she was denied
fair and impartial trial. Lane v. State (App. 5 Dist. 1997) 957 S.W.2d 584,
petition for discretionary review refused. Criminal Law 1038.1(4)
� 2006 Thomson/West
END OF DOCUMENT
(a) Except as provided in Subsection (b), a person does not commit an offense
unless he intentionally, knowingly, recklessly, or with criminal negligence
engages in conduct as the definition of the offense requires.
(b) If the definition of an offense does not prescribe a culpable mental state, a
culpable mental state is nevertheless required unless the definition plainly
dispenses with any mental element.
(c) If the definition of an offense does not prescribe a culpable mental state,
but one is nevertheless required under Subsection (b), intent, knowledge, or
recklessness suffices to establish criminal responsibility.
(d) Culpable mental states are classified according to relative degrees, from
highest to lowest, as follows:
(1) intentional;
(2) knowing;
(3) reckless;
(e) Proof of a higher degree of culpability than that charged constitutes proof of
the culpability charged.
CREDIT(S)
Acts 1973, 63rd Leg., p. 883, ch. 399, � 1, eff. Jan. 1, 1974. Amended by Acts
1993, 73rd Leg., ch. 900, � 1.01, eff. Sept. 1, 1994; Acts 2005, 79th Leg., ch.
1219, � 1, eff. Sept. 1, 2005.
"The change in law made by this Act applies only to an offense committed on or
after the effective date of this Act. An offense committed before the effective
date of this Act is covered by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose. For purposes of this
section, an offense is committed before the effective date of this Act if any
element of the offense occurs before the effective date."
Acts 1993, 73rd Leg., ch. 3, � 1, in subsecs. (a) and (c), following "Subsection
(b)", deleted "of this section".
Prior Laws:
CROSS REFERENCES
"Conduct" defined, see V.T.C.A., Penal Code � 1.07.
Intoxication and alcoholic beverage offenses, culpable mental state not required
for convictions, see V.T.C.A., Penal Code � 49.11.
Aggravated robbery--Texas style. Jim D. Bowmer, Bob Burleson and Luther E. Jones,
Jr., 33 Baylor L.Rev. 947 (1981).
Criminal law--Culpable mental state. Mike McColloch and David W. Coody, 37 Sw.L.J.
379 (1983).
Indictments under new Texas Penal Code. Percy Foreman and Luther E. Jones, Jr., 15
Hous.L.Rev. 1 (1977).
LIBRARY REFERENCES
RESEARCH REFERENCES
Encyclopedias
McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 1.2, Model Complaint,
Information and Indictment.
McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 25.3, Unlawful Possession
of Firearm.
McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 28.4, Driving While
Intoxicated -- First Offense.
McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 53.2, Motion to Quash --
General.
McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 99.2, Model Charge.
McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 109.1, Model for Dictating
Objections to the Court's Charge.
Dix and Dawson, 41 Tex. Prac. Series � 19.23, Showing that Accused Committed
Charged Offense -- in General.
Dix and Dawson, 41 Tex. Prac. Series � 20.141, Alleging the Necessary Mens Rea --
in General.
Dix and Dawson, 41 Tex. Prac. Series � 20.142, Culpable Mental State Requirements.
Dix and Dawson, 41 Tex. Prac. Series � 20.143, Penal Code s6.02's Requirements.
Dix and Dawson, 41 Tex. Prac. Series � 20.144, Alleging "Specific Intents" or
"Particular Culpable Mental States".
Dix and Dawson, 41 Tex. Prac. Series � 20.145, Alleging Other Required Culpable
Mental States.
Dix and Dawson, 41 Tex. Prac. Series � 20.146, Determining the Applicability of
Penal Code Section 6.02.
Dix and Dawson, 41 Tex. Prac. Series � 20.148, Defining a Required Culpable Mental
State.
Dix and Dawson, 41 Tex. Prac. Series � 20.149, Alleging a Required Culpable Mental
State -- in General.
Dix and Dawson, 41 Tex. Prac. Series � 20.153, Culpable Mental States Concerning
Aggravating Elements.
Dix and Dawson, 41 Tex. Prac. Series � 20.154, Offenses Requiring Multiple
Culpable Mental States.
Dix and Dawson, 41 Tex. Prac. Series � 20.146A, Section 6.02 as Applied to
Elements for Which No Culpable Mental State is Prescribed.
Civins, Hall & Sahs, 45 Tex. Prac. Series � 4.15, The Intent Element of
Environmental Crimes.
Civins, Hall & Sahs, 45 Tex. Prac. Series � 4.13, Initiation of Judicial
Enforcement Action.
NOTES OF DECISIONS
In general 1
Accidental homicide 5
Admissibility, evidence 20
Assaults 3
Burden of proof 19
Circumstantial evidence 21
Evidence 20-22
Evidence - Admissibility 20
Homicide 4-6, 14
Homicide - In general 4
Instructions 23-28
Instructions - In general 23
Miscellaneous offenses 11
Necessity of instructions 28
Ordinances 12
Rape 7
Requested instructions 26
Robbery 8
Strict liability 2
Sufficiency of evidence 22
Sufficiency of instructions 25
Traffic offenses 9
1. In general
Criminal negligence, not simple negligence, is lowest degree of conduct for which
criminal responsibility may be imposed. Cole v. State (Cr.App. 1977) 556 S.W.2d
343. Criminal Law 23
Under this section, any violation of penal statute requires culpable mental state.
William Sommerville & Son, Inc. v. Carter (Civ.App. 1978) 571 S.W.2d 953, affirmed
584 S.W.2d 274. Criminal Law 21
2. Strict liability
Proof of offense of air pollution did not require establishment of culpable mental
state, since to require anything other than strict liability standard would be to
deny public the right to be protected from hazardous activities. Exxon Co., U.S.A.
v. State (App. 1 Dist. 1982) 646 S.W.2d 536, petition for discretionary review
refused. Environmental Law 744
If applicable, the following features would indicate that the legislature intended
to impose liability without fault, or intended to dispense with a culpable mental
state: (1) a risk of serious harm to the public is likely to result from a
violation of the statute; (2) the legislative history of the statute indicates an
intention to dispense with fault; (3) the statute imposes less severe punishment
for its violation; (4) the accused has some opportunity to ascertain the true
facts as to why he is being charged with a violation without proof of fault; (5)
prosecuting officials will have much more difficulty proving the accused committed
the offense if the statute requires proof of mental culpability; and (6) the fewer
the number of prosecutions that are expected to occur, the more likely the
legislature meant to require the prosecuting officials to go into the issue of
fault. State v. Abdallah (App. 2 Dist. 2001) 64 S.W.3d 175, petition for
discretionary review refused. Criminal Law 21
3. Assaults
4. Homicide--In general
The killing of a human being by another, whether intentional or unintentional and
regardless of whether the killing was accidentally or purposely done, is a
"homicide." Great Southern Life Ins. Co. v. Akins (Civ.App. 1937) 105 S.W.2d 902,
error refused. Homicide 504
Offense of murder, committed when a person intends to cause serious bodily injury
and commits an act clearly dangerous to human life that causes death of an
individual, is a result type of crime and requires a showing that a person, acting
with conscious objective or desire to create a substantial risk of death, serious
permanent disfigurement, or protracted loss or impairment of any bodily member or
organ, causes death of an individual, and also requires a showing that act
intended to cause serious bodily injury was objectively clearly dangerous to human
life. Lugo-Lugo v. State (Cr.App. 1983) 650 S.W.2d 72. Homicide 528
Where a pistol accidentally dropped upon the floor is discharged and a person is
thereby killed, the defendant by whom the pistol was dropped is, under an
indictment for homicide, entitled to an acquittal. Hodge v. State (Cr.App. 1910)
60 Tex.Crim. 157, 131 S.W. 577. Homicide 762
To kill while playing with a gun believed to be unloaded, was no offense. McCray
v. State (Cr.App. 1911) 63 Tex.Crim. 522, 140 S.W. 442.
Where two persons were killed in one transaction, the fact that more than one shot
was fired does not, as a matter of law, render it unsusceptible of proof that both
were killed by one act, in one case intentional and in the other accidental, since
a series of shots may be fired with one volition. Spannell v. State (Cr.App. 1918)
83 Tex.Crim. 418, 203 S.W. 357. Criminal Law 739(4)
That accused was negligent or careless in discharging his pistol would not render
him guilty of "murder" for what otherwise would be an "accidental homicide." Burt
v. State (Cr.App. 1940) 140 Tex.Crim. 410, 145 S.W.2d 886. Homicide 762
An "accidental killing" arises when the act that causes the death is done
unintentionally. Harris v. State (Cr.App. 1946) 150 Tex.Crim. 38, 198 S.W.2d 264.
Homicide 762
The killing of another by accident and mistake by running into her with automobile
which defendant was operating while under the influence of intoxicating liquor was
not excusable homicide, since defendant was not prosecuting a lawful object in a
lawful manner. Flowers v. State (Cr.App. 1947) 150 Tex.Crim. 467, 202 S.W.2d 462,
supplemented 150 Tex.Crim. 467, 203 S.W.2d 539. Automobiles 346
7. Rape
Intent, knowledge or recklessness are the applicable mental states and suffice to
establish criminal responsibility for offense of rape. Braxton v. State (Cr.App.
1975) 528 S.W.2d 844. Rape 5
8. Robbery
Fact that lesser included offense of robbery may be committed by culpable mental
state of recklessness even though not alleged in the indictment for the greater
offense of aggravated robbery does not preclude a charge thereon since by
definition recklessness is a lower culpable mental state than "intentional" or
"knowing." Little v. State (Cr.App. 1983) 659 S.W.2d 425. Robbery 27(5)
9. Traffic offenses
Culpable mental state is not requisite for charging offense of driving automobile
while intoxicated, speeding, or for many other traffic type offenses. Honeycutt v.
State (Cr.App. 1981) 627 S.W.2d 417. Automobiles 351.1
Legislature, through enactment of this section and � 1.03 and providing that
provisions of certain titles of Penal Code apply to offenses defined by Civil
Statutes unless statute defining offense provides otherwise, did not intend to
require proof of culpable mental state for offense of driving while license
suspended. Clayton v. State (App. 7 Dist. 1983) 652 S.W.2d 810. Automobiles 352
Statutory language "by accident and mistake" for offense of intoxication assault
while operating vehicle dispenses with any mental element. Stidman v. State (App.
1 Dist. 1998) 981 S.W.2d 227. Automobiles 347
The culpable mental state required for offense of failing to stop and render aid
is that accused had knowledge of circumstances surrounding his conduct, i.e., had
knowledge that an accident had occurred; such knowledge is an element of the
offense, and therefore must be alleged in the indictment. Goss v. State (Cr.App.
1979) 582 S.W.2d 782. Automobiles 336
This section applies to offense of failing to stop and render aid, even though
offense is located in civil statutes and not in Penal Code. Goss v. State (Cr.App.
1979) 582 S.W.2d 782. Automobiles 336
Although � 30.02 governing criminal trespass does not prescribe a culpable mental
state, a culpable mental state of intentionally, knowingly, or recklessly acting
is required under this section prescribing such a mental state if the definition
of an offense does not prescribe a culpable mental state. West v. State (Cr.App.
1978) 567 S.W.2d 515. Trespass 76
Section 38.05 making it an offense if, with intent to hinder the arrest of
another, a person aids in providing the other with any means of avoiding arrest or
effecting escape prescribes only one mental state, that being "with intent" to
hinder arrest, and does nor prescribe a lesser culpable mental state which use of
the terms "knowingly" or "with knowledge" would have prescribed. Garcia v. State
(Cr.App. 1982) 640 S.W.2d 939. Obstructing Justice 1
Under subsec. (b) of this section, a culpable mental state is a required element
of the offense of endless chain scheme. Crawford v. State (Cr.App. 1983) 646
S.W.2d 936. Consumer Protection 50
Since � 36.09 prohibiting the offering of a gift to a public servant does not
prescribe a culpable mental state, the required mental state for such offense, is
either intent, knowledge, or recklessness. Hubbard v. State (App. 5 Dist. 1984)
668 S.W.2d 419, petition for discretionary review granted, remanded 739 S.W.2d
341, on remand 770 S.W.2d 31, petition for discretionary review refused, rehearing
on petition for discretionary review denied. Bribery 1(1)
12. Ordinances
City ordinance's "no touch" provision, which prohibited touching between nude
performer and customer, did not burden more protected expression than was
essential to further city's interest in preventing prostitution, drug dealing, and
assault, and ordinance was thus not unconstitutionally overbroad, despite topless
bar's claim that, because ordinance did not specify requisite mental state, it
criminalized accidental or inadvertent touching; under Texas law, ordinance
required culpable mental state and, thus, did not criminalize inadvertent or
negligent touching. Hang On, Inc. v. City of Arlington, C.A.5 (Tex.)1995, 65 F.3d
1248. Constitutional Law 90.4(5)
"No touch" provision of city code regulating sexually oriented businesses and
conduct of their employees was unconstitutional and void restriction on free
expression; provision failed to restrict protected conduct narrowly to do only
what was necessary to prevent "secondary effects" of adult cabarets. State v.
Howard (App. 5 Dist. 2005) 172 S.W.3d 190, rehearing overruled. Constitutional Law
90.4(1); Constitutional Law 90.4(5)
Indictment which alleged that offense of credit card abuse was committed
"knowingly and intentionally" sufficiently alleged a culpable mental state.
Baldwin v. State (Cr.App. 1976) 538 S.W.2d 109. Larceny 29
Where indictment in forgery prosecution alleged that act was committed "with
intent to defraud or harm another," which is essential mental element, indictment
was not fundamentally defective for failing to allege culpable mental state. Jones
v. State (Cr.App. 1978) 571 S.W.2d 191. Forgery 27
Since culpable mental state was required by this section, complaint alleging
violation of municipal ordinance proscribing negligent collision, which did not
allege that defendant acted with intent, knowledge, recklessness or criminal
negligence, was fundamentally defective for failure to allege culpable mental
state. Honeycutt v. State (Cr.App. 1981) 627 S.W.2d 417. Municipal Corporations
639(1)
Omission of words "intent to promote or assist the commission of the offense" from
indictment under which defendant, a nonpublic official, was convicted of official
misconduct was not fundamental error as although defendant could not commit the
offense, as opposed to aiding the public official in committing the offense,
defendant could be charged as if he had directly committed the offense and
indictment facially complied with requirements of this section. Wooley v. State
(App. 3 Dist. 1982) 629 S.W.2d 867, review refused. Criminal Law 1032(5)
Indictment sufficiently charged a culpable mental state for the offense of theft
of an automobile, where the indictment charged that defendant unlawfully
appropriated the automobile with intent to deprive complainant of it. Miles v.
State (App. 12 Dist. 1982) 642 S.W.2d 827. Larceny 29
Indictment which alleged that defendant acted together with codefendant, when
codefendant committed aggravated robbery, was fundamentally defective because
indictment failed to allege that when defendant acted together with codefendant,
she did so "with intent," or that she acted with culpable mental state of either
"intentional" or "knowing." Thompson v. State (Cr.App. 1985) 697 S.W.2d 413.
Robbery 17(2)
Indictment that alleged that defendant "knowingly and intentionally had sexual
intercourse" with the complainant and further alleged that he compelled her
submission to such intercourse sufficiently alleged a culpable mental state in the
aggravation portion of the indictment for aggravated rape of a child. Jason v.
State (Cr.App. 1979) 589 S.W.2d 447. Rape 21
Indictment, which alleged that petitioner carried on or about his person a handgun
on premises licensed for sale and consumption of alcoholic beverages, failed to
allege any culpable mental state as required by � 46.02 which provides that person
commits offense if he intentionally, knowingly or recklessly carries on or about
his person a handgun, and was therefore fundamentally defective. Ex parte Garcia
(Cr.App. 1976) 544 S.W.2d 432. Weapons 17(1)
17. ---- Failure to stop and render aid, indictments and complaints
Indictment, charging defendant with offense of failing to stop and render aid,
which failed to allege that defendant knew that accident had occurred, failed to
allege required culpable mental state of offense, even though indictment did
allege that defendant did intentionally and knowingly drive and operate his
automobile. Goss v. State (Cr.App. 1979) 582 S.W.2d 782. Automobiles 351.1
Indictment alleging failure to stop and render aid failed to allege a culpable
mental state, in that allegation that injuries made necessity of treatment
apparent did not satisfy requirement that indictment allege that actor knew an
accident involving victim occurred. Salazar v. State (Cr.App. 1979) 589 S.W.2d
412. Automobiles 351.1
Felony information charging failure to stop and render aid which did not allege
knowledge that an accident had occurred was not fatally defective since
information expressly alleged that defendant intentionally and knowingly failed to
stop and render assistance and he could not have knowingly failed to render
assistance without having had knowledge that an accident had occurred. Abrego v.
State (Cr.App. 1980) 596 S.W.2d 891. Automobiles 351.1
Indictment alleging that defendant did intentionally and knowingly drive and
operate an automobile, but failing to allege that defendant knew that accident had
occurred, failed to allege requisite culpable mental state of offense of failure
to stop and render aid. Brown v. State (Cr.App. 1980) 600 S.W.2d 834. Automobiles
351.1
Indictment which alleged that defendant engaged in sexual abuse of child "with
intent to arouse and gratify the sexual desire of" defendant was not subject to
motion to quash for failure to allege more general culpable mental state. Tapley
v. State (App. 4 Dist. 1984) 673 S.W.2d 284, petition for discretionary review
refused. Sodomy 5
Proof of culpable mental state is not required in prosecutions for driving while
intoxicated; pleadings are not required to allege, and proof is not required to
show, that person who is charged with driving and operating a motor vehicle on a
public highway while intoxicated did so either intentionally, knowingly,
recklessly, or with criminal negligence. Owen v. State (Cr.App. 1975) 525 S.W.2d
164. Automobiles 352
Under this section and �� 21.02, 21.03, and 21.09, in order to establish criminal
responsibility for the offense of rape, aggravated rape, or rape of a child, State
must allege and prove that defendant acted intentionally, knowingly or recklessly.
Ex parte Smith (Cr.App. 1978) 571 S.W.2d 22. Rape 35(2)
20. Evidence--admissibility
Where there was a plea of accidental homicide and an issue as to whether the
shooting was intentional, any circumstance or declaration showing accused's state
of mind and which would throw light on such issue was admissible. Singleton v.
State (Cr.App. 1909) 57 Tex.Crim. 560, 124 S.W. 92. Homicide 986; Homicide 987
Ordinarily, the culpable mental state must be inferred from the acts of the
accused or the surrounding circumstances, which include not only acts, but words
and conduct. Lee v. State (App. 12 Dist. 2000) 21 S.W.3d 532, rehearing overruled,
habeas corpus granted in part 2005 WL 774882, petition for discretionary review
refused, rehearing on petition for discretionary review denied, habeas corpus
denied 2006 WL 1305169. Criminal Law 312
Jury specifically found that defendant, as party to crime, used deadly weapon to
commit robbery such that trial court was authorized to enter an affirmative
finding in the judgment of conviction; by finding defendant guilty "as alleged in
indictment," that a deadly weapon was used, jury found that defendant intended
that a deadly weapon would be used during course of aggravated robbery, thereby
necessarily finding that defendant knew a deadly weapon would be used. Harris v.
State (App. 1 Dist. 2003) 2003 WL 360264, Unreported, petition for discretionary
review refused. Sentencing And Punishment 370
Mere evidence that accused did not know that the substance she sold was
intoxicating was insufficient to raise the issue that she acted by accident.
Mollenkopf v. State (Cr.App. 1912) 68 Tex.Crim. 598, 151 S.W. 799. Intoxicating
Liquors 239(4)
On a trial for homicide, in which accused claimed that he was intoxicated and that
deceased was shot accidentally, evidence was sufficient to support a conviction
for murder. Gomez v. State (Cr.App. 1914) 75 Tex.Crim. 239, 170 S.W. 711. Homicide
1205
Mere statement of state's witness that "The gun went off", did not, under
circumstances, establish that shooting was accidental. Sloan v. State (Cr.App.
1966) 409 S.W.2d 412. Homicide 1205
Evidence was legally sufficient to support finding that juvenile recklessly caused
serious bodily injury to victim, for purpose of delinquency proceeding, when he
choked victim while playing "pass out"; juvenile admitted that choking someone was
dangerous, that he didn't think of the possibility the victim would hit the ground
if he passed out, and that he didn't plan on trying to catch the victim. In re
J.A.P. (App. 3 Dist. 2002) 2002 WL 31317256, Unreported. Infants 153
Evidence was legally sufficient to support finding that juvenile committed assault
on a public servant, in support of delinquency adjudication; teacher intervened in
an assault on an injured student, she informed the other students that she was a
teacher and commanded that they leave the injured student alone, and juvenile
continued to follow teacher and deliver blows, at least two of which struck
teacher. In re F.C. (App. 3 Dist. 2003) 2003 WL 21282766, Unreported. Infants 153
Where accused was charged with killing deceased by discharging a pistol while
struggling with her husband, an instruction on negligent homicide, making
accused's guilt depend on whether he knew deceased was in danger of being killed,
is erroneous where there is no evidence that accused knew deceased was in same
room when struggle took place. Merritt v. State (Cr.App. 1919) 85 Tex.Crim. 565,
213 S.W. 941. Homicide 1492
An instruction that, if jury found from evidence that defendant shot decedent by
accident and not while intending to commit robbery, jury should acquit defendant,
was not subject to objection that it was a comment on weight of evidence, that it
restricted defendant's rights with reference to an affirmative charge on
accidental killing, that it was an undue emphasis on state's theory of case and
prejudicial and did not make an application of the law to the facts as testified
by defendant. Cook v. State (Cr.App. 1948) 152 Tex.Crim. 51, 211 S.W.2d 224.
Criminal Law 763(1); Criminal Law 811(1); Criminal Law 814(8); Homicide 1492
In murder prosecution, where defendant testified that she was restrained of her
liberty by deceased, and drew pistol not with intent to kill him, but to induce
him to release her, and in the scuffle which ensued over the pistol it was
accidentally discharged, defendant was entitled to an instruction on accidental
discharge of pistol. Matterson v. State (Cr.App. 1941) 142 Tex.Crim. 250, 152
S.W.2d 352. Homicide 1492
Murder prosecution instruction that fact that defendant was armed would not
deprive him of defense of accident did not restrict defendant's rights under his
defense of accident. Sloan v. State (Cr.App. 1966) 409 S.W.2d 412. Homicide 1492
An instruction that if the jury believed from the evidence, or had a reasonable
doubt, that defendant drew his pistol, not to assault prosecutrix, but to protect
himself from danger taken from his standpoint at the time, and while endeavoring
to make prosecutrix and her companions talk to him relative to getting his wife
back, prosecutrix took hold of the barrel of the pistol, which, in the scuffle,
was accidentally discharged and prosecutrix was wounded, defendant should be found
not guilty, sufficiently presented the theory of accidental shooting.
Groszoehmigen v. State (Cr.App. 1909) 57 Tex.Crim. 241, 121 S.W. 1113. Homicide
1492
Where the issue was whether the killing a decedent was accidental or the result of
negligence, the court in its charge defined murder in the first and second
degrees, and negligent homicide in the first and second degrees, and stated that
if accused fired the pistol accidentally without intending to do so, and thereby
killed decedent, and if he did not intend to kill decedent, accused was not guilty
of negligence, sufficiently submitted the issue of accidental homicide.
Biggerstaff v. State (Cr.App. 1910) 59 Tex.Crim. 575, 129 S.W. 840. Homicide 1492
Charges that accused should be acquitted, if the jury had a reasonable doubt
whether he intended to kill or at the time he pointed his gun knew it was loaded
or cocked, affirmatively presented the issue of accidental homicide. Windham v.
State (Cr.App. 1915) 76 Tex.Crim. 209, 173 S.W. 661.
Failure to instruct that if accused did not know deceased was in vacant room and
pistol was fired without intent to injure or kill deceased, or jury had reasonable
doubt about matter, defendant should be acquitted, was error, though court
instructed generally on law of excusable homicide. Latta v. State (Cr.App. 1933)
124 Tex.Crim. 618, 64 S.W.2d 968. Homicide 1492
In murder prosecution, instruction that jury should acquit if they believed beyond
reasonable doubt that pistol was accidentally discharged in some unaccountable way
without intention on part of defendant, and that shot accidentally and without
intention struck deceased's body, was sufficient on question of intent, and
refusal to define word "voluntary" was not error. Beverly v. State (Cr.App. 1938)
134 Tex.Crim. 331, 115 S.W.2d 652. Criminal Law 800(7); Homicide 1492
Where the court correctly submitted the issue of excusable homicide by accident or
misfortune, there was no error in refusing the defendant's special charge thereon.
Cooper v. State (1914) 72 Tex.Crim. 250, 161 S.W. 1094; Posos v. State (1925) 100
Tex.Crim. 54, 271 S.W. 902.
Jury finding that defendant knowingly caused serious bodily injury to children
necessarily encompassed finding that she recklessly caused them serious bodily
injury, where trial court's charge permitted jury to convict on lesser included
offense of reckless injury. Patterson v. State (App. 2 Dist. 2001) 46 S.W.3d 294,
appeal after new sentencing hearing 101 S.W.3d 150, petition for discretionary
review refused. Infants 20
Where defendant does not object at trial to omission of culpable mental state in
application paragraph of jury charge, reversal is warranted only if defendant can
show the error caused him or her egregious harm, i.e., that he or she was denied
fair and impartial trial. Lane v. State (App. 5 Dist. 1997) 957 S.W.2d 584,
petition for discretionary review refused. Criminal Law 1038.1(4)
� 2006 Thomson/West
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