CCP 21.15">CCP 21.15
One of my favorite statutes, Texas Code of Criminal Procedure Article 21.15:
Art. 21.15. MUST ALLEGE ACTS OF RECKLESSNESS OR CRIMINAL NEGLIGENCE. 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 in order 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.
So when the State charges you with assault by recklessly causing bodily injury, they can’t just plead that you recklessly caused bodily injury; they have to plead the acts that were reckless—acts “from which,” in the words of the Court of Criminal Appeals in Smith v. State (on which I sat second at trial), “a trier of fact could infer the culpable mental state of recklessness.”
Of course, at trial they have to prove what they pled: they can’t plead that you recklessly caused bodily injury by hitting the complainant with a baseball bat, and then convict you by proving that you hit him with a tire iron.
21.15’s effect on the State’s pleading and proof alone would make it one of my favorites: any time a statute makes it harder for the State to prove its case against my client, it goes on the list. As an added bonus, though, 21.15 is little-enough understood that most charging instruments in Harris County alleging recklessness or negligence don’t comply with the statute, which gives me something to litigate and a chance to control the tempo of the conflict.
If being a law geek is wrong, I don’t want to be right.
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Case law has eviscerated the usefulness of this provision for ABI cases:
Where the information charging the defendant with assault of a family member alleged that the defendant “intentionally, knowingly, and recklessly caused bodily injury to the complainant by hitting her in the face,” the information complied with Tex. Code Crim. Proc. Ann. art. 21.15 by informing the defendant of the act upon which the State intended to rely. State v. Leavitt, 2006 Tex. App. LEXIS 6468 (Tex. App. Dallas July 25 2006).
Where the information charging the defendant with assault of a family member alleged that the defendant “intentionally, knowingly, and recklessly caused bodily injury to the complainant by hitting her in the face,” the information complied with Tex. Code Crim. Proc. Ann. art. 21.15 by informing the defendant of the act upon which the State intended to rely. State v. Leavitt, 2006 Tex. App. LEXIS 6468 (Tex. App. Dallas July 25 2006).
On a charge of assautl, the State was not required under Tex. Code Crim. Proc. Ann. art. 21.15 to set forth specific facts supporting the allegation of recklessness in the charging instrument because the State alleged other culpable mental states along with recklessness. Long Xuan Thai v. State, 2007 Tex. App. LEXIS 6056 (Tex. App. Dallas Aug. 1 2007).
Two unpublished Dallas cases do not an evisceration make.
Crawford, on which Thai’s assertion that the State need not allege reckless facts if it also pleads knowledge or intent is based, is interesting in what it lacks: any discussion of the jury charge. If the State alleges multiple mens reas but no facts constituting recklessness, and the charge survives a motion to quash, the next battle is over the jury charge: since the State didn’t allege facts constituting recklessness, the jury should not be charged on that mens rea.
You’re right about the jury charge:
…when recklessness is left out of the indictment for the charged offense, and no lesser included offense is submitted to the jury… then Article 21.15 precludes the inclusion of recklessness or criminal negligence in the jury instructions for the charged offense. Reed v. State, 117 S.W.3d 26, 265 (Tex. Crim. App. 2003).
I didn’t know that before. Thank you for pointing it out.