Chapter 22
Assaultive Offenses
22.21 Instruction—Deadly Conduct—Recklessness
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of deadly conduct.
Relevant Statutes
A person commits the offense of deadly conduct if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.
Definitions
Bodily Injury
“Bodily injury” means physical pain, illness, or any impairment of physical condition.
Recklessly Engages in Conduct that Places Another in Imminent Danger of Serious Bodily Injury
A person recklessly engages in conduct that places another in imminent danger of serious bodily injury if—
- there is a substantial and unjustifiable risk that his conduct will place another person in imminent danger of serious bodily injury;
- this risk is of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the person’s standpoint; and
- the person is aware of but consciously disregards that risk.
Serious Bodily Injury
“Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
[Include presumption of danger and recklessness if raised by the evidence; see CPJC 22.25.]
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, three elements. The elements are that—
- the defendant, in [county] County, Texas, on or about [date], engaged in certain conduct, specifically [describe conduct];
- this conduct placed [name] in imminent danger of serious bodily injury; and
- the defendant was reckless about whether his conduct placed [name] in imminent danger of serious bodily injury.
You must all agree on elements 1, 2, and 3 listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, and 3 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the three elements listed above, you must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Acts Constituting Recklessness. Article 21.15 of the Texas Code of Criminal Procedure requires that if recklessness “enters into or is a part or element of any offense” or when a charging instrument alleges the accused acted recklessly, the complaint, information, or indictment to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied on to constitute recklessness, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly.
The case law does not make clear what precisely is required by this provision, either generally or in deadly conduct cases in particular.
If details are alleged in an effort to comply with this requirement, Texas tradition suggests that those detailed allegations must be incorporated into the application of law to facts unit of the jury instructions.
Comment
Deadly conduct is prohibited by and defined in Tex. Penal Code § 22.05. The definitions of culpable mental states are derived from Tex. Penal Code § 6.03. The definition of “bodily injury” is from Tex. Penal Code § 1.07(a)(8). The definition of “serious bodily injury” is from Tex. Penal Code § 1.07(a)(46).
Definition of Offense. The definition of the offense of deadly conduct presents a problem that affects the definitions of many offenses in the Texas Penal Code. The statute requires that the defendant act “recklessly” but does not make clear whether that culpable mental state applies to (1) the conduct, (2) the result of placing another in imminent danger of serious bodily injury, or (3) both.
The above instruction assumes that recklessness applies only to the result of placing another in imminent danger of serious bodily injury.