Moore v. State

ON MOTION FOR REHEARING

On motion for rehearing, Moore continues to urge that the trial court erred in not submitting a charge on the lesser included offense of reckless damage or destruction.

Moore correctly contends that if evidence from any source raises the issue of a lesser included offense, a charge on that offense must be included in the court’s charge. The credibility of the evidence and whether it conflicts with other evidence must not be considered in deciding whether the charge on the lesser offense should be given. Saunders v. State, No. 069-90, — S.W.2d - (Tex.Crim.App. May 13, 1992); Gibbs v. State, 819 S.W.2d 821 (Tex.Crim.App.1991). A defendant’s testimony alone can raise the issue. Mitchell v. State, 807 S.W.2d 740 (Tex.Crim.App.1991).

Moore’s testimony varied as to the extent of his awareness of his conduct. He testified that he had been knocked unconscious in a fight shortly before the arrest and that he was dazed and confused when placed in the squad car. Moore points to his testimony which states that he did not intend to damage the vehicle but wanted the window out so that he could breathe. An intentional act includes conduct when a person intends the result or intends the conduct. Moore’s purpose or motive does not preclude the evidence that he intended the specific act.

Moore also points to his testimony that he was dazed and confused. If Moore did not have the capability of forming an intent, then this would negate an element of the offense charged, but it would not authorize the charge on a lesser included offense. Even the charge of the lesser included mental state of recklessness requires an awareness of an unreasonable risk.

Moore has not pointed to any evidence that would any way raise or suggest a reckless mental state requiring the submission of a charge on reckless damage or destruction.

The defendant’s motion for rehearing is overruled.