"(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct . . . when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist[.]" Thus in White v. State, 647 S.W.2d 751 (Tex.App. — Fort Worth 1983) PDR refused, the late Justice Wm. A. Hughes, Jr., wrote for the court: "'Willful and wanton disregard' means the deliberate conscious indifference to the safety of others[.] Proof of evil or malicious intent is not an element of reckless driving."
We hold, in accord with the overwhelming body of authority elsewhere concerning similar laws, that 23 V.S.A. § 1091(b) is clear and definite and does not transgress the constitutional ban against vague enactments. See Byrd v. State, 390 So.2d 697, 697 (Fla. 1980); State v. Earlenbaugh, 18 Ohio St. 3d at 22-23, 479 N.E.2d at 849; White v. State, 647 S.W.2d 751, 753 (Tex.Crim. App. 1983). See generally Annot., Statute Prohibiting Reckless Driving: Definiteness and Certainty, 52 A.L.R.4th 1161, 1170-72 (1987).
However, "proof of evil or malicious intent" is not required. City of San Antonio v. Schneider, 787 S.W.2d 459, 465 (Tex. App.—San Antonio 1990, writ denied) (quoting White v. State, 647 S.W.2d 751, 753 (Tex. App.—Fort Worth 1983, pet. ref’d)). The plaintiff must prove instead that the driver "knew the relevant facts but did not care about the result."
Proof of an evil or malicious intent is not an element of reckless driving. Id. (citing White v. State, 647 S.W.2d 751, 753 (Tex. App.—Fort Worth 1983, pet. ref'd)). In Fernandez, the Fort Worth Court of Appeals determined that the reckless driving statute does not require actions "that caused a wreck or nearly caused a wreck" in order for a violation to occur.
Obviously, "[p]roof of an evil or malicious intent is not an element of reckless driving." White v. State, 647 S.W.2d 751, 753 (Tex. App.—Fort Worth 1983, pet. ref'd). Appellant likens the testimony of the officers here to that of the officer in United States v. Raney, 633 F.3d 385 (5th Cir. 2011), in which the Fifth Circuit overturned the denial of a motion to suppress evidence obtained during a stop based on a violation of section 545.401(a).
C. Reckless Driving Appellant contends the trial court erred when it denied his requested jury charge on the lesser-included misdemeanor offense of reckless driving. See Tex. Transp. Code Ann. § 545.401(a) (Vernon Supp. 2009). A person commits reckless driving if the "person drives a vehicle in wilful or wanton disregard for the safety of persons or property." Id. "Wilful and wanton" in this context means "the deliberate conscious indifference to the safety of others." See Bartholomew v. State, 871 S.W.2d 210, 215 (Tex. Crim. App. 1994) (White, J., concurring) (citing White v. State, 647 S.W.2d 751, 753 (Tex. App.-Fort Worth 1983, pet. ref'd). The indictment in this case charged appellant with aggravated assault by intentionally and knowingly threatening Officer Llanes with imminent bodily injury and using and exhibiting a deadly weapon, a motor vehicle, during the commission of the assault. See Tex. Pen. Code Ann. § 22.02. Because the indictment charged conduct that included the driving of a vehicle in "wilful and wanton" disregard for the safety of others, the State concedes that misdemeanor reckless driving is a lesser-included offense of aggravated assault by threat with a motor vehicle as charged in the indictment. Therefore, we conclude that reckless driving is included within the proof necessary to establish aggravated assault, and the first prong of Rousseau test is met. See Tex. Code Crim. Proc. Ann. art. 37.09(1); see Rice v. State, 305 S.W.3d 900, 907 (Tex. App.-Dallas 2010, pet. filed). With regard to the second prong, appellant argues the jury could have rationally found him guilty of the lesser-included off
Obviously, "[p]roof of an evil or malicious intent is not an element of reckless driving." White v. State, 647 S.W.2d 751, 753 (Tex.App.-Fort Worth 1983, pet. ref'd). The trial court adopted the following findings of fact that support its reckless driving conclusion:
"Willful and wanton" in this context means "the deliberate conscious indifference to the safety of others." White v. State, 647 S.W.2d 751, 753 (Tex.App.-Fort Worth 1983, pet. ref'd). The "driving" element of reckless driving is included within the facts required to establish aggravated assault in this case because the indictment alleged that appellant used the vehicle as a deadly weapon by the manner in which he drove it.
In the context of reckless driving, "willful and wanton disregard" means the "deliberate and conscious indifference to the safety of others." Harris v. State, 152 S.W.3d 786, 796 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd) (citing Benge, 94 S.W.3d at 36); White v. State, 647 S.W.2d 751, 753 (Tex.App.-Fort Worth 1983, writ ref'd). We agree with Benge that "one who intentionally and knowingly threatens another with imminent bodily injury has a deliberate, conscious indifference for that person's safety."
Specifically, appellant contends that there was no evidence of conscious indifference, no evidence to show that the prescription drugs that she had ingested caused the accident, and no evidence to prove that she was driving while intoxicated. Relying on White v. State, 647 S.W.2d 751, 753 (Tex.App.-Fort Worth 1983, pet. ref'd), appellant contends that "willful and wanton disregard" in the context of reckless driving means "the deliberate conscious indifference to the safety of others." Appellant asserts that because she testified that she never saw the complainant before she struck him, she could not have acted with conscious indifference.