NO. 1410-01






Johnson, J., filed a concurring opinion.


In the Penal Code, there are a number of offenses that differ only in the required mental state, and because of the required mental state, have different ranges of punishment. E.g., murder under section 19.02(b)(1) (intentionally and knowingly causes the death of an individual; 1st degree felony) and manslaughter under section 19.04 (recklessly causes the death of an individual; 2nd degree felony); criminal mischief under section 28.03 (intentionally and knowingly damages or destroys property of another without consent; Class A, B, or C misdemeanor, depending on amount of damage) and reckless damage or destruction under section 28.04 (recklessly damages or destroys property of another without consent; Class C misdemeanor regardless of amount of damage). Other offenses have no required mental state, such as intoxication offenses (section 49.11). For other offenses, such as sexual assault under sections 22.011 or 22.021, "reckless" commission borders on the absurd. For other offenses, such as the one here, mental state is more similar to "manner and means" than to "lesser-included offense."

By the very use of the word "lesser," the term connotes an act that is less blame-worthy and, therefore, subject to lesser censure and a lesser punishment. If this were not so, we would use the term "included offense" instead. Texas statutes bear this out: misdemeanor theft involves a smaller loss than the higher felony charge; misdemeanor assault involves lesser injury than the felony, aggravated assault. While the statute says that "lesser-included offense" includes an offense that "differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission . . .," to say that a less culpable mental state is sufficient, in and of itself, leads to absurd results.

The offense alleged by the indictment in this case, aggravated assault, Penal Code 22.02(a),defines the elements of that offense as:

1) an assault as defined in 22.01 ("intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse"); and

2) "causes serious bodily injury to another, including the person's spouse . . .."

In this case, the indictment alleged only intentionally and knowingly, thereby restricting the elements of the offense to "intentionally and knowingly causes serious bodily injury to another." It cannot be denied that bodily injuries which cause death are serious. If we are to determine whether an offense is a lesser-included one based solely on whether it requires a less culpable mental state, then, under this indictment, manslaughter, Penal Code 19.04 ("A person commits an offense if he recklessly causes the death of an individual.") is a lesser-included offense of aggravated assault. It is at least arguable that, under the indictment at issue here, murder under 19.02(b)(2)("intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual") is also a lesser-included offense of aggravated assault.

The Legislature has shown itself able to explicitly delineate what behavior shall constitute an offense and what shall not. In the statute at issue here, the legislature decreed that recklessly causing injury is an offense, while recklessly threatening injury is not.

Section 22.01 Assault.

(a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another . . .

(2) intentionally or knowingly threatens another with imminent bodily injury . . . or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

Section 22.02. Aggravated Assault

(a) A person commits an offense if the person commits assault as defined in Section 22.01 and . . ..

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.

I join the judgment of the Court.

Johnson, J.

Filed: May 14, 2003