Brown v. State
| Decision Date | 16 November 1977 |
| Docket Number | No. 54390,54390 |
| Citation | 558 S.W.2d 471 |
| Parties | Rodney Malcom BROWN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
DALLY, Commissioner.
This is an appeal from a conviction for the offense of public lewdness, V.T.C.A. Penal Code, Sec. 21.07; 1 the punishment is confinement in the county jail for 365 days.
The appellant asserts, in the only ground of error which we need discuss and for which we must reverse the judgment, that the information is fundamentally defective. Even though the pleading was not attacked by a motion to quash, the appellant argues that the pleading is fundamentally defective. The information, which alleges explicitly the act of deviate sexual intercourse, only alleges the appellant was reckless about whether others were present who would be offended by the alleged act without alleging the act or acts relied upon to constitute recklessness. The information does not allege that the act was committed in a public place, and therefore whether the appellant was reckless about whether another was present who would be offended or alarmed by his act is a necessary element of the offense.
Art. 21.15, V.A.C.C.P., provides:
"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."
Since the information fails to allege one necessary element of the offense in the manner required by Art. 21.15, V.A.C.C.P., the information is fundamentally defective. American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974); and see Cole v. State, 556 S.W.2d 343 (1977). Also see the opinions interpreting Art. 408a, V.A.C.C.P., 1925, which is the statute from which Art. 21.15, V.A.C.C.P., 1965, was derived. Scott v. State, 344 S.W.2d 457 (Tex.Cr.App.1961); Jones v. State, 388...
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