CCP 21.15

 Posted on August 29, 2011 in Uncategorized

One of my favorite statutes, Texas Code of Criminal Procedure Article 21.15:

Art. 21.15. MUST ALLEGE ACTS OF RECKLESSNESS OR CRIMINAL NEGLIGENCE. Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence.

So when the State charges you with assault by recklessly causing bodily injury, they can't just plead that you recklessly caused bodily injury; they have to plead the acts that were reckless-acts "from which," in the words of the Court of Criminal Appeals in Smith v. State (on which I sat second at trial), "a trier of fact could infer the culpable mental state of recklessness."

Of course, at trial they have to prove what they pled: they can't plead that you recklessly caused bodily injury by hitting the complainant with a baseball bat, and then convict you by proving that you hit him with a tire iron.

21.15's effect on the State's pleading and proof alone would make it one of my favorites: any time a statute makes it harder for the State to prove its case against my client, it goes on the list. As an added bonus, though, 21.15 is little-enough understood that most charging instruments in Harris County alleging recklessness or negligence don't comply with the statute, which gives me something to litigate and a chance to control the tempo of the conflict.

If being a law geek is wrong, I don't want to be right.

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