Scenario: Hunter is indicted for deadly conduct, "knowingly shooting at or in direction" of X." During bench trial, defendant testifies he shot at rocks above X's head, but denies shooting at or in direction; Judge finds def. guilty of "reckless" deadly conduct, rather than "knowingly."

Question: Is reckless a lesser included of knowingly when the indictment only alleges knowingly?

All cases I can find discuss whether deadly conduct is lesser included of agg. assault, etc but I find nothing concerning the question at hand.

Any thoughts???

I found one case that says it's a lesser of felony deadly conduct. Wimberley v. State, 2002 WL 32344904 at *3 (Tex.App.-Eastland Nov 21, 2002, no pet.) (not published) ("Moreover, appellant has not shown that he would have been entitled to an instruction on the lesser included offense"). I'm not sure how 22.05(a) & (b) fit under CCP 37.09.

I guess you're trying to deal with Reed v. State, 117 S.W.3d 260, 265 (Tex. Crim. App. 2003) ("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.").

Under Penal Code 6.02(e), one could argue that all the lesser mental states are included in the allegation of a higher mental state. Anytime you allege a mental state, I think your defendant will be entitled to a lesser included charge on anything which differs from the charged offense only in the lesser mental state.

If the evidence shows a greater offense (more culpable mental state) and the defendant is convicted of only a lower (less culpable) mental state, who is harmed? Since apparently no jury is involved in your case, Reed has no relevance. If the real issue is whether the shot was fired at or in the direction, then the issue of the mental state is never reached. You can't say the direction (trajectory) of the shot depends on the mental state of the actor.