Rehearing En Banc Denied July 11, 1979.
This is an appeal from a conviction for failure to stop and render aid. After appellant entered a plea of nolo contendere, the court assessed punishment at five years and granted probation.
In his first ground of error appellant attacks the indictment for its failure to include a proper allegation of the culpable mental state. In relevant part the indictment alleged that appellant did:
Appellant does not deny that the indictment alleges he intentionally and knowingly drove an automobile, but responds to that allegation with the assertion that driving an automobile is not an offense under Texas law. Appellant's attack focuses on the failure of the indictment to allege his state of mind as to the collision and as to his leaving the scene of the accident.
The prosecution was brought under Article 6701d, Secs. 38 and 40, V.A.C.S., which provide:
It can be seen from the statutory language that no culpable mental state is expressly provided for this offense. Appellant relies on V.T.C.A., Penal Code Sec. 6.02. Sec. 6.02(b) provides:
In Bocanegra v. State, Tex.Cr.App., 552 S.W.2d 130, a conviction for welfare fraud under Article 695c, Section 34, V.A.C.S., was set aside because the information failed to allege a culpable mental state. Section 34(1) and (2) of the statute defining the offense were found not to prescribe culpable mental states, but it was held that one was nevertheless required by Secs. 6.02(b) and 1.03(b), supra, because the statute did not plainly dispense with any mental element.
In Broyles v. State, Tex.Cr.App., 552 S.W.2d 144, it was held that Sec. 6.02, supra, applied to the offense defined in Article 9012, Sec. 2(2), V.A.C.S., by virtue of Sec. 1.03(b), supra.
We hold that the Sec. 6.02 requirement of a culpable mental state applies to the offense of failing to stop and render aid as defined in the above quoted civil statute.
We must now decide what culpable mental state is required.
Sec. 6.02(c), supra, provides:
Despite this statutory language, it has been stated that even though burglary under V.T.C.A., Penal Code Sec. 30.02(a)(3) does not expressly require a culpable mental state, under Sec. 6.02(b) and (c), supra, a culpable mental state of intentionally or knowingly, and not recklessly, is required. Day v. State, 532 S.W.2d 302, 305, n. 1, and accompanying text. Early cases under the first statute creating an offense of failing to stop and render aid indicate that this offense, like burglary under Sec. 30.02(a)(3), supra, requires knowledge rather than recklessness.
At the time of Scott v. State, 90 Tex.Cr.R. 100, 233 S.W. 1097, the statute on failure to stop and render aid provided in part:
At that time the requirement of knowledge that a collision occurred was regarded as a defensive matter that was not essential to the indictment. The Court in Scott said:
Although the Court at that time held that an indictment for failure to stop and render aid did not have to allege that the defendant knew a collision had occurred, it did recognize that such knowledge must be proven by the State beyond a reasonable doubt and the jury must be charged on the matter, if evidence raised the issue. Stalling v. State, 90 Tex.Cr.R. 310, 234 S.W. 914; Goforth v. State, 92 Tex.Cr.R. 200, 241 S.W. 1027; Blakeley v. State, 127 Tex.Cr.R. 339, 77 S.W.2d 688. In Goforth v. State, supra, the Court wrote:
Although today's statute on failure to stop and render aid is not the same as the one in effect at the time of these earlier cases, the essential point that the accused must know an accident has occurred before the duty to stop and render aid arises, and before he may be held culpable for failure to stop and render aid, is as sound today as then. A construction of Article 6701d, Secs. 39 and 40, supra, that imposes strict liability upon the driver who had no knowledge that an accident had occurred would be unreasonable, and we find such a construction untenable.
These early cases, however, also characterized the issue of lack of knowledge as a defensive matter and accorded it the procedural consequences that under the present code attach to a defense under V.T.C.A., Penal Code Sec. 2.03. That is to say, the Court in prior cases held that such knowledge need not be alleged in the indictment, but if lack of knowledge were raised by the evidence, the jury must be charged to acquit if there were a reasonable doubt on the matter. Scott, Stalling, Goforth, Blakeley, supra.
Under the new penal code, in contrast, the culpable mental state is expressly made, not a defense, but an element of the offense, V.T.C.A., Penal Code Sec. 1.07(a)(13)(B), and this is so even where the culpable mental state is not expressly stated in the statutory definition of the offense. Sec. 6.02(b), supra. In numerous cases this Court has so held, and has set aside indictments as fundamentally defective for failure to allege a culpable mental state even though the definition of the offense did not prescribe a culpable mental state. Tew v. State, Tex.Cr.App., 551 S.W.2d 375 (possession of firearm by a felon, V.T.C.A., Penal Code Sec. 46.05); Ex parte Winton, Tex.Cr. App., 549 S.W.2d 751 (burglary under V.T. C.A., Penal Code Sec. 30.02(a)(3)); Zachery v. State, Tex.Cr.App., 552 S.W.2d 136 (attempted rape). See also, West v. State, Tex.Cr.App., 567 S.W.2d 515; Braxton v. State, Tex.Cr.App., 528 S.W.2d 844. And this rule has also been applied to offenses not defined in the penal code and not expressly prescribing a culpable mental state even though the offense pre-dated the new requirements of the penal code. Bocanegra v. State, supra.
We hold that pursuant to Sec. 1.03(b), supra, the requirements of Sec. 6.02, supra, apply to Art. 6701d, Secs. 38 and 40, supra, and that the culpable mental state thereby required for the offense of failing to stop and render aid is that the accused had knowledge of the circumstances surrounding his conduct (V.T.C.A., Penal Code Sec. 6.03(b)), i. e., had knowledge that an accident had occurred. We further hold that under Sec. 1.07(a)(13), supra, such knowledge is an element of the offense, and therefore must be alleged in the indictment. "For offenses that require a culpable mental state, it is an element of the offense and must be alleged in the indictment. V.T. C.A., Penal Code Sec. 1.07(a)(13); Ex parte Garcia, Tex.Cr.App., 544 S.W.2d 432; Tew v. State, Tex.Cr.App., 551 S.W.2d 375; Zachery, Winton, supra." West v. State, Tex.Cr.App., 567 S.W.2d 515. Finally, we hold that the indictment in this case did not allege that culpable mental state. Although it does allege that appellant did intentionally and knowingly drive and operate his automobile, as pointed out by appellant, it is not an offense to drive a car, and the indictment utterly fails to allege appellant knew that the accident had occurred. It therefore fails to allege the culpable mental state of the offense.
The judgment is reversed and the prosecution is ordered dismissed.