The opinion
*628 DOUGLAS, Judge
(concurring).
One of the main contentions of Roady is that he had inadequate representation of counsel. To further show that there was no inadequate representation, some of the contentions will be discussed more fully.
Appellants argue that the charge as submitted to the jury allowed him to be convicted on the basis of a lesser culpable mental state than charged in the indictment and presents a lengthy dissertation on the definitions of culpable mental states as set out in V.T.C.A. Penal Code Section 6.03. They assert that “ . . . since the grand jury alleged both, the highest culpable mental state (intentional) must be proved by the state.”
In effect they argue that it is fundamental error to plead conjunctively and charge in the disjunctive. They recognize that under Articles 1183 and 1389, V.A.P.C., the rape and burglary statutes respectively under the former code, the indictment could allege the commission of the offense by force, threats and fraud, and proof of any would be sufficient and in so doing the State would not have to elect. Their attempt to distinguish those cases from the present case is novel. They contend that cases under those statutes dealt with the mode of commission of the offense, and in the case at bar it is culpable mental state which is in issue.
The convictions were under the provisions of V.T.C.A. Penal Code Section 22.01, which provides:
“A person commits an offense if he:
“(1) intentionally, knowingly, or recklessly causes bodily injury to another; or . . . ”
V.T.C.A. Penal Code Section 22.02 provides:
“A person commits an offense if he commits assault as defined in Section 22.-01 of this code and he:
“(1) causes serious bodily injury to another; . . . ”
V.T.C.A. Penal Code Section 6.02 provides in part as follows:
“(d) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:
(1) intentional;
(2) knowing;
(3) reckless;
(4) criminal negligence.
“(e) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.”
The proof that appellants knowingly did the act or acts is sufficient. If the indictment had alleged the culpable mental state of knowingly only then under Sec. 6.02(e), supra, proof that they acted intentionally would be sufficient. If the indictment had alleged intentionally only then the proof of knowingly would have been sufficient under Sec. 22.01. In other words, when the highest culpable mental state of intentionally is alleged, it includes knowingly, a lesser culpable mental state.
Under Article 1256, former penal code, an indictment for murder could allege different means of killing in the same count and the State was not required to elect on which means the alleged conviction would be sought and proof that death was caused by any or all of the means alleged was sufficient. 4 Branch’s P.C.2d, Section 2185, page 530. There is no logical difference between this and alleging and proving culpable mental states to the charge. No error would be shown even if there had been an objection.
Both contend that the trial court committed fundamental error in giving an abstract charge on the law of the parties without applying the law to the facts. No objections to the court’s charge, as required by Article 36.14, V.A.C.C.P., appear in the record. The same contention was raised and answered adversely to appellants in Louden v. State, 491 S.W.2d 168 (Tex.Cr.App.1973), where this Court wrote:
“We observe that under the facts a charge on principals was authorized as the evidence raised the participation of both the appellant and his son in the shooting of the deceased. Odell v. State, 95 Tex.Cr.R. 360 , 254 S.W. 977 . Further, *629 no objection was made to the charge given by the court on principals on the ground that it failed to apply the law to the facts. In the absence of a request or exception, the failure to charge is not reviewable. Kemp v. State, 96 Tex.Cr.R. 152 , 256 S.W. 264 . Had an objection been made, such failure would not call for a reversal of the conviction as it would not be calculated to injure the rights of the appellant. Art. 36.19, V.A.C.C.P.; Lowe v. State, Tex.Cr.App., 377 S.W.2d 193 .”
Another situation where an indictment alleged in the conjunctive and the charge could be submitted in the disjunctive was in a receiving or concealing stolen property case under the former code. An indictment that alleged receiving and concealing stolen property would warrant a conviction for either receiving or concealing. Cuilla v. State, 80 Tex.Cr.R. 41 , 187 S.W. 210 .
In Meek v. State, 71 Tex.Cr.R. 433 , 160 S.W. 698 , the court instructed the jury that it must find that Meek received and concealed stolen property. This Court held that requiring a finding of both receiving and concealing was error in favor of the defendant.