Can a jury charge applying an unalleged reckless culpable mental state for aggravated assault in a unitary application instruction cause egregious harm when applying that same reckless culpable mental state as a lesser-included offense would not even be error?
Gonzalez stole merchandise from a bait car, and when police tried to pull him over, he sped off. When he came to a locked gate, several patrol cars partially blocked him in, and an officer started getting out of his car. Gonzalez accelerated in reverse and pinned the officer against his patrol car. Gonzalez was indicted for aggravated assault on a public servant. The indictment alleged only intentional and knowing aggravated assault. In the jury charge, however, recklessness was added alongside intent and knowledge as a theory of conviction. It was not submitted as a lesser. No one objected, and the jury convicted.
On appeal, Gonzalez argued that the charge erroneously authorized the jury to convict him on a lesser culpable mental state than he was charged with. The court of appeals agreed. It found egregious harm because the State had argued that recklessness could support a conviction.
The State notes that while including an unalleged reckless mental state in the jury charge impermissibly expands on the theory alleged in the indictment, Reed v. State, 117 S.W.3d 260 (Tex. Crim. App. 2003), no error occurs if the trial court submits the unalleged reckless allegation as a lesser-included offense. Hicks v. State, 372 S.W.3d 649 (Tex. Crim. App. 2012). The State argues that if re-configuring the jury charge would have avoided error altogether and the punishment range stays the same regardless, submitting recklessness as the trial court did could not have caused Gonzalez actual harm or deprived him of a vital defensive right.