Motion to Quash Information for 
Failure to Allege a Culpable Mental State
by Jason D. Cassel
CAUSE NO. _______

STATE OF TEXAS	§	IN THE COUNTY COURT
	§
V.	§	AT LAW		§
_______________	§	___________ COUNTY, TEXAS

TO THE HONORABLE JUDGE OF SAID COURT:

	INTO COURT comes the Defendant, by and through his undersigned counsel, and respectfully moves this Honorable Court to hold a hearing on this Motion prior to trial and outside the presence of the jury and thereafter quash the Information. In support thereof the Accused would show:

I.
	The requested hearing is required by the Texas Code of Criminal Procedure Article 28.04.

II.
	The defendant is charged with a violation of Texas Transportation Code §545.157, Passing Authorized Emergency Vehicle Causing Bodily Injury, a Class B Misdemeanor. The Information alleges in pertinent part that the defendant did then and there:

fail to vacate the lane closest to the Hazard Police vehicle when driving on a highway with two or more lanes traveling in the direction of the Hazard Police vehicle, fail to slow to a speed 20 miles per hour less than the posted speed limit when approaching a stationary Hazard Police vehicle using visual signals and caused bodily injury to Roscoe P. Coltrane by striking him with his vehicle and injury to Roscoe P. Coltrane’s foot.

III.
	Texas Penal Code §6.02 (b) provides:

If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.

Furthermore, Texas Penal Code §1.03 (b) states that the provisions of Titles 1, 2, and 3 of the Penal Code apply to offenses defined by other laws unless the statute defining the offense provides otherwise. Texas Transportation Code §545.157 neither prescribes a mental state nor does it dispense with one. For example, Texas Penal Code §49.11 dispenses with such a requirement by stating that proof of a mental state is not required for conviction of any violations of Chapter 49 except for possession of an alcoholic beverage in a motor vehicle. There is no such provision in the Texas Transportation Code for a violation of §545.157. 

IV.
	In Aguirre v. State, 22 S.W.3d 463 (Tex.Crim.App. 1999), the Court of Criminal Appeals held that the State must allege a mental element in the prosecution of a city ordinance in El Paso regarding the operation of adult businesses where the ordinance did not plainly dispense with one. In so doing, the Court of Criminal Appeals held that if the statute is silent as to the mental element of the offense, Texas Penal Code §6.02 (b) presumes that a mental state is required to be pled as an element of the offense. This logic applies not only to city ordinances but also Transportation Code offenses via Texas Penal Code §1.03 (b). See Goss v. State, 582 S.W.2d 782, 785 (Tex.Crim.App. 1979), and McCown v. State, 192 S.W.3d 158 (Tex.App.—Ft.Worth 2006), both applying Tex. Penal Code §6.02 to Failure to Stop and Render Aid, a Transportation Code offense. Here, the State has not alleged a culpable mental element nor does the statute dispense with this requirement. Thus, the Information in this cause violates Texas Penal Code §§1.03 and 6.02 (b) and should be quashed. 

PRAYER
	WHEREFORE, PREMISES CONSIDERED, the Accused prays that this Motion be granted and that the Court quash the Information in this cause

	Respectfully submitted,
	THE CASSEL LAW FIRM, PC

	By:	_____________________________
 		JASON D. CASSEL
		SBN 24006970
		P.O. Box 2361
		Longview, Texas 75601
		Tel: 903.758.5200
		Fax: 1.866.421.3860

		Attorney for Defendant

CERTIFICATE OF SERVICE

	I hereby certify that a true and correct copy of the above and foregoing instrument has been hand delivered to the District Attorney presently assigned to this case, on this the ____ day of ________________, 2010.

	______________________________
	JASON D. CASSEL
CAUSE NO. _______

STATE OF TEXAS	§	IN THE COUNTY COURT
	§
V.	§	AT LAW
	§
_______________	§	___________ COUNTY, TEXAS

ORDER

	On this day came on to be heard the Accused’s Motion to Quash for Failure to Allege a Culpable Mental State. The Court having considered the motion is of the opinion that said motion should be: 

	_________ GRANTED and the Information in this cause should be quashed.

	_________ DENIED and the prosecution may proceed as alleged in the information.

	Signed and entered this _____ day of ____________, 2010.

	______________________________
	JUDGE PRESIDING