noting that the State must prove not only that an offense was committed, but that the party charged was the person who committed it or was a participant in its commission
How later courts described this case
- noting that the State must prove not only that an offense was committed, but that the party charged was the person who committed it or was a participant in its commission
- holding that the State must prove the identity of the perpetrator
- holding “jury, sitting as the trier of facts, may accept or reject any or all of the testimony adduced”
- State must prove its allegations in the indictment beyond a reasonable doubt
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Geesa v. State, 1991 Tex. Crim. App. LEXIS 240 (1991)
673 S.W.2d 190, 196 (Tex. Crim. App. 1984); overruled on other grounds by Geesa v. State, 820 S.W.2d 154
The opinion
W.C. DAVIS, Judge,
concurring.
Although I believe it should be noted that fabrication, although hardly sufficient to support a conviction, is probative of an accused’s knowledge of wrongdoing in the same way as is flight, I agree that the State has failed to show that the victim’s death was the result of an intentional act, and a fortiori that it was the result of an intentional act by appellant.
I write to point out that appellant’s own evidence in this case would appear to support a conviction for criminally negligent, or perhaps even reckless, injury to a child, both of which are condemned by the same statute under which appellant was charged. 1
The indictment in the instant case alleged only intentional injury, however, and the charge to the jury of course authorized conviction only upon that theory. 2
In light of the failure of the State to plead in the alternative a mode of committing the offense which was supported by proof, I join the majority in finding the evidence insufficient.
CAMPBELL, J., joins.
. At the time of the alleged offense, V.T.C.A., Penal Code, Sec. 22.04 provided:
(a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct that causes serious bodily injury, serious physical or mental deficiency or impairment, or deformity to a child who is 14 years of age or younger.
(b) An offense under this section is a felony of the second degree.
The legislature replaced that statute, effective September 1, 1981, with a new scheme which, inter alia, provides that the offense of reckless injury to a child is now a third degree felony, rather than second degree, and criminally negligent injury is now a class A misdemeanor, but the changed statute explicitly provides for the use of the old scheme for offenses committed prior to the effective date of the new statute. Acts 1981, 67th Leg., p. 472, ch. 202, 35.
. Unlike those included offenses which provide a lesser punishment, the offense alleged in the instant case would have been in no way mitigated by proof of the lesser culpability, see fn. 1, ante, and the State was thus bound by its charging instrument. The court would not have been authorized in charging upon the included offense, because it is not a lesser offense. Cf. Art. 37.09, V.A.C.C.P. In the instant case, the offense charged and the offense requiring lesser culpability were the same offense.