I suppose it will not cause any great problems for those preparing accusatory pleadings, but I find the holding in this case strange. It says that although we still have a hierarchy of culpable mental states, they are not subsets of each other. In other words, it is possible to commit an act knowingly but not also recklessly. The more troubling aspect of the opinion, however, is that the court refuses to uphold the decision of the trial court on any theory applicable to the case. Instead, it says the State cannot argue the charge was proper under art. 37.09 because it failed to suggest that assault by reckless conduct was a lesser included offense of assault by knowing conduct in the trial court.

I'm still trying to get a handle on this one. Are they tagging us because we did not formally request it and the judge's statements on the record were vague as to the reason he gave it, i.e. he did not say I'm submitting a lesser included? We've been doing this alot . . .

I think they are just saying that the Penal Statute for aggravated assault (when it incorporates the statute for assault) is simply requiring actual notice of recklessness, along with intentional or knowing, to sustain a subsequent jury charge on recklessness. That is because proof of recklessness for assault does not make for a lesser included offense: it is one form of assault and, therefore, aggravated assault.

So, just alter your aggravated assault indictment wording to always include recklessness, and you are OK. The case is not a global warning that the reckless commission of an offense is not a lesser included offense.

Caveat: the court makes clear that anytime you allege recklessness you must also comply with art. 21.15 (even if you are also alleging a mental state that carries higher culpability).

Does the court not also essentially say that the mental state may change the manner and means of commission of the offense? That seems a little weird too.

I just cannot see how the Defendant was surprised (or harmed) when a lesser mental state was also used as a theory of liability. After all, we are talking about the degree of certainty that firing a gun at someone will cause bodily injury. Maybe it makes sense to say that if the State chooses allege (to try to prove) a greater degree of certainty it should be held to the chosen degree and cannot be given a break. But why can't the court just come out and say that? Of course, the danger with that logic is it always applies to the submission of a lesser included offense.