             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,087



                   EX PARTE CYNTHIA JANE SIMPLER, Applicant



          ON APPLICATION FOR A WRIT OF HABEAS CORPUS
    CAUSE NO. W98-02963-S(A) IN THE 282 ND JUDICIAL DISTRICT COURT
                       FROM DALLAS COUNTY



       Per curiam.

                                           OPINION

       Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated

assault of a public servant and sentenced to thirty-five years’ imprisonment. The Fifth Court of

Appeals affirmed her conviction. Simpler v. State, No. 05-99-00478-CR (Tex. App. – Dallas,

December 12, 2000).

       Applicant contends, inter alia, that her trial counsel rendered ineffective assistance because

counsel failed to object to the inclusion of a culpable mental state in the jury charge which was not
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alleged in the indictment. The indictment charged that Applicant “knowingly and intentionally”

caused bodily injury to a public servant. The jury charge allowed conviction if the jury found that

Applicant acted “knowingly or intentionally or recklessly” in causing the bodily injury. During

closing arguments, the prosecutor emphasized the reckless mens rea, asking the jury, “How on earth

was what she did not - - not a gross deviation from the standard of conduct of an ordinary person?”

       Trial counsel has submitted an affidavit, in which he defends his failure to object as a

strategic decision:

       I did not object to the inclusion of the culpable mental state of “reckless” because of
       strategic reasons. I believed that if the jury had an option other than “knowingly or
       intentionally” to consider, there would be a strong possibility that the jury would
       hang.

       But, the inclusion of a culpable mental state in the jury charge in addition to those alleged

in the indictment increased the likelihood that the jury would find Applicant guilty, because there

is no requirement that the jurors agree unanimously on which mental state Applicant had in order

to find her guilty. The trial court has adopted the State’s proposed findings, including the finding

that counsel’s failure to object to the jury charge “is irrelevant because the Applicant was not harmed

by the inclusion of reckless in the charge.” This finding is not supported by the record, which

indicates that the prosecutor relied on the inclusion of recklessness in the charge during closing

arguments.

       Because counsel failed to object to the inclusion of a culpable mental state in the jury charge

which was not alleged in the indictment, we find that counsel’s performance was deficient. We also

find that such ineffective representation prejudiced Applicant, because it allowed the prosecutor to

argue that the jury should find Applicant guilty if her actions were reckless. We find, therefore, that
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Applicant is entitled to a new trial. The judgment of conviction in Case No. W98-02963-S(A) from

the 282nd Judicial District Court of Dallas County is set aside, and Applicant is remanded to the

custody of the Dallas County Sheriff’s Department to answer the indictment.



Delivered: February 4, 2009
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