Here's the scenario---Defendant operating a vehicle on the highway at speeds approaching 100 mph in a 70 mph zone. Weaving in and out of traffic. Passing vehicles on the improved shoulder. One of the vehicles defendant passes on the shoulder is occupied by two children younger than 15. In fact, in the act of passing this vehicle defendant's vehicle throws a rock into the windshield of the vehicle occupied by the children causing it to crack. Anyone think this is endangering by recklessness or criminal negligence perhaps?

Although I have not personally prosecuted such conduct as such, and am uncertain anyone else has successfully done so either, to me driving that is very obviously dangerous to others constitutes a knowing assault under 22.01(a)(2) and the vehicle is likely a deadly weapon (making 22.02(a)(2) applicable). See e.g., Mann, 13 S.W.3d at 92. But, perhaps 22.041(c) more specifically describes the conduct in your case. Then, however, one has to deal with whether the defendant must have had some appreciation of the character (age) of the victim to be guilty of knowing or reckless conduct. Since criminal negligence will suffice for the same range of punishment, perhaps that would be the better mental state to allege. Though I guess it does not "sound" as bad, clearly there will be no requirement that you prove the defendant had subjective awareness of this circumstance surrounding his conduct. But, beware, the defendant may be guilty only of reckless driving (see Benge, 94 S.W.3d at 35-6).

We'd most likely take a fact situation like that to Grand Jury & have them decide whether to charge.

I am going to run it past the Grand Jury. We'll see what happens and I'll post an update later.

Lee, I understand your desire to prosecute this guy to the fullest. I tried a guy once to a jury on an endangering case when he ran from the cops with an infant in the car. Facts were a little different in that I did not have a problem with the defendant's knowledge element since the child was in the car with the defendant. My guy had a prior 3g conviction that allowed me to bump the punishment up for the endangering. However, in your case if the guy does not have an aggravated prior, endangering is a SJF. So is evading arrest in a vehicle. Are you biting off more than necessary? I understand you may want to make a statement about this act, etc. Just wanted to point out that it's the same level as evading. Good luck.

Tim, I'm afraid evading really won't work for me with my facts. The one thing I wonder about Endangering is this: the statute provides that "A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, ENGAGES IN CONDUCT that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment." Does the culpable mental state apply to the ENGAGING IN THE CONDUCT? Or is there some implicit requirement built into the statute that the defendant appreciates that his conduct is placing a child at risk?

In my situation, I would almost think the act of operating a vehicle at a speed of 100 mph on a public highway weaving in and out of cars, passing on the shoulder etc. would qualify as Class "A" Deadly Conduct, at a minimum. If the defendant collided with a car and the car was occupied by a child and the child was injured, I don't think there's any doubt that I'd have Injury to a Child (P.C. 22.04)--whether the defendant knew a child was in the car or not. With this in mind, I guess my argument would be that if the evidence were to show that a child was IN FACT endangered because the defendant ENGAGED IN THE CONDUCT, then the elements of the offense have been proven. Anyone aware of any law to the contrary? I'll keep y'all posted on this one.

Yeah, I misunderstood your facts. Take a look at 95 SW3d 516, Walker v. State. That's the case I mentioned in my earlier post in which I prosecuted the guy for endangering with the infant in the car. The Fort Worth Court of Appeals believes that endangering is a knowingly "engage in the conduct" offense rather than the result. However, the court acknowledges that there is a split in the courts of appeals on this point. Walker currently has a request for PDR pending so this could be finally decided by the high court soon. Anyway, their discussion in Walker might be instructive to you.

We had a vehicular accident which resulted in the death of a child. The child was crossing with a school crossing guard, but before posted school zone hours. Vehicle was speeding - 55 in a 40 (normal speed limit) when it hit the child.
We are looking to charge this motorist in as many ways as possible.

Manslaughter, criminally negligent homicide, was thinking of 22.041 also. Is it better to just leave it at the first two?

Just an update. My 18 year old defendant plead guilty the other day to a SJF deferred with a $2000 fine. I had some of the authority in my file discused above. Defense attorney never attempted to argue that this conduct didn't fall within the Endangering statute.