In the Name and by the authority of the State of Texas

Before me, the undersigned Assistant/County Attorney of Brazos County, this day appeared the undersigned affiant, who under oath says that he has good reason to believe and does believe that in Brazos County, Texas,

DEFENDANT'S NAME

hereafter styled the defendant, heretofore on or about February 2_, 20__, did

then and there intentionally expose his genitals with intent to arouse and gratify the sexual desires of DEFENDANT'S NAME and said defendant was reckless about whether another was present who would be offended and alarmed by his act, to-wit: exposing his penis and making lewd comments to VICTIM NAME while attempting to lure her into his vehicle and VICTIM NAME was present and was offended and alarmed by said defendant's acts of exposure.

Against the Peace and dignity of the State

Signed Assistant County Attorney of brazos county.



Anyone see anything that I could either get rid of to make this easier to prove or anything wrong really?

Too much detail. You don't have to allege that he was trying to lure her into the vehicle. You also don't have to state that a specific person was actually offended or alarmed, just that the defendant was reckless about whether another was present who might be offended or alarmed. The "lewd comments" are also evidentiary to prove his mens rea.

Ours always read something to this effect:

...that on or about (date), the defendant (name) did then and there intentionally or knowingly expose his genitals with intent to arouse or gratify the sexual desire of any person, to wit: the defendant, and the defendant was reckless about whether there was another present who might be offended or alarmed by the defendant's act of exposure.

I'm not even really sure whether you have to say who was the object of the arousal or gratification or the victim's name at the end (which I left off here), but we always did. It seems like those would be evidentiary. Practices may have changed since I was drafting these, though.

It's possible that keeping the lewd comment stuff in there will allow it to comply with art. 21.15 (you gotta allege facts that demonstrate recklessness). If you strip all that evidentiary stuff out, it'll be subject to a motion to quash. See Smith v. State, 309 S.W.3d 10, 15 (Tex. Crim. App. 2010).

Thanks for that, Jimbeaux. I believe you are right (interesting that the challenge to recklessness was not successfully raised sooner - it admittedly has been the law for a long time that you have to allege the facts that make something reckless). Recklessness in this case relates to whether another was present who would be offended or alarmed, and certainly making lewd comments toward another person tends to prove that. I stand corrected.

Thanks y'all.

This thread serves as a timely reminder that whenever "recklessness" OR "criminal negligence" are alleged in an accusation, the accusation must allege the acts "relied upon to constitute recklessness or criminal negligence." In addition to Smith cited by Jimbeaux, take a look at two other cases: S. v. Rodriguez, 339 sw3d 680 (CCA 2011)(discharge of a firearm); and Gengnagel v. S., 748 sw2d 227 (CCA 1998) (indecent exposure).

It can be a difficult balance to allege sufficient facts for notice of the acts constituting the culpable mental states but, at the same time, avoiding alleging facts that you do not need to prove. There really is no litmus test, so drafting these accusations requires special care and, in the face of a motion to quash, particular consideration to revision.