Pleading a Tautology | Reckless Discharge of a Firearm

Can the State prove Reckless Discharge of a Firearm by simply proving discharge of a firearm in the city limits?

Reckless Discharge of a Firearm in TexasYesterday, the Court of Criminal Appeals handed down State v. Rodriguez, a case in which the State appealed the lower court decision setting aside the information (charging document) for failure to plead an offense.

The State charged Roman Rodriguez under section 42.12 of the Texas Penal Code for reckless discharge of a firearm inside city limits. The information alleged that the defendant

recklessly discharged a firearm by pulling the trigger on a firearm which contained ammunition and was operable.

Upholding the 4th District Court of Appeals (San Antonio), the CCA held that the charge was deficient because it failed to allege that the act was done recklessly. The CCA noted that,

The State’s information alleged that Mr. Rodriguez recklessly discharged a firearm inside [the city limits] “by pulling the trigger on an firearm which contained ammunition and was operable.” Well, of course he did. Everyone who discharges a firearm pulls the trigger, and every firearm that is discharged contains ammunition and is operable if it discharges.

The Court explained that, in essence, the State pled a tautology – “The defendant recklessly discharged a firearm because he discharged a firearm.” The Court further noted that there are many occasions where a person might discharge a firearm inside the city limits by pulling the trigger on an operable firearm containing ammunition, such as: “if a person shoots a robber or a rapist climbing into his bedroom window,” or “if he shoots a rattlesnake lying in the bushes.”

Accordingly, because the State only alleged “how” the defendant discharged the firearm and failed to alleged how he “recklessly” discharged the same, the information was deficient and should be set aside.

Judge Price concurred in the result and writes separately to express his opinion that the statute (section 42.12) is “hopelessly ambiguous” regarding the recklessness requirement.  Presiding Judge Keller joined in Judge Price’s concurrence. Judge Womack also concurs without opinion.

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