concurring.
If Texas was a dartboard, and Waco was the bull’s-eye, the Court’s opinion on the third issue hits Ardmore, Oklahoma. The Court has raised, briefed, and resolved an issue entirely different than what Ester presented. The Court discusses “whether Ester knew a police officer was pursuing her.” While knowledge that the person in pursuit is a police officer is an element of evading arrest, Ester’s issue is not so limited. Ester’s contention is that she did not have knowledge that she was evading anyone, much less arrest or detention.
Ester’s objection was not about knowledge of a circumstance but about the conduct in which she was engaged. This is evident upon examination of her argument on appeal. As stated in her brief, Ester “objected to the charge for the reason that the charge failed to contain the following language; ⅛ person acts knowingly or with knowledge, with respect to the nature of his conduct when he is aware of the nature of his conduct. A person acts knowingly, comma, or with knowledge, comma, with respect to the result of his conduct when he is aware that his conduct is reasonably certain to cause a result, period.’ That language was requested and denied and overruled (RR, Vol. 5, Page 67 fines 11-21).” (Appellant’s brief, pg 17).
Ester does not argue that the word, “knew,” in reference to whether the State proved she knew the person was a police officer, as used in the charge, had to be defined. Her complaint is that “knowingly” was not used in the charge in reference to the conduct in which she had engaged. And if “knowingly” had been used, it needed a definition.
Ester’s theory of the case is that she was so high from smoking crack cocaine that she did not know she was evading anyone, much less police officers. This is readily apparent from Ester’s brief. She states, “The Appellant stated that she was not really aware that the police was trying to stop her (RR, Vol. 6, Page 42 fines 12-23).” And then, “[u]pon cross-examination, the Appellant stated that she was not really aware that the police were trying to stop her (RR, Vol. 6, Page 43 fines 1-6).” Note, she never testified she did not know they were police officers.
Ester’s entire appellate argument is as follows:
This was error, as the evidence introduced at the trial at that point showed that the Appellant did not know what *666she was doing and the Appellant’s position is that the State had the burden of proving knowledge in this particular offense. Evading by its very nature requires a conscious decision in an act or series of acts. Since this element is necessary and since it was not included as an element to be considered by the jury, Appellant was in fact not fairly convicted. She was convicted of driving recklessly with police officers behind her, as that was all the State proved. The jury was not instructed to consider the element of knowledge of intent. Said ruling was error.
The Appellant would show the court that the State had not proven beyond a reasonable doubt that the Appellant was aware of her actions. The State had the burden of proving that at the time the Appellant knew that she was in fact evading arrest. The due process clause of the United States Constitution protect the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which she is charged, In Re Winship, 397 U.S., 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. In this case the District Attorney’s Office failed to prove, and the jury was not told to consider, whether beyond a reasonable doubt that Appellant had knowledge. Factual insufficiency of the evidence is clear in this case. The due process clause protects the Appellant against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime of which she has been charged, Lowry v. State, 671 S.W.2d 601.
Section 6.03 of the Penal Code states that a person acts intentionally or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause a result. The State had to prove knowledge or intent in this case and they had to prove it beyond a reasonable doubt. The jury should have been so instructed.
The State’s response is also informative. It provides the proper rationale as to why the word “knowingly” was not used in the charge, and therefore, why the trial court properly refused to define it. The State’s response to Ester’s argument is that the Court had to charge her under the language of the indictment, that she intentionally evaded arrest, rather than the lesser culpable mental state of only knowingly evading arrest. The State alleged intentional conduct. As such, the charge did not, and could not, include criminal liability for conduct done knowingly. See Reed v. State, 117 S.W.3d 260, 265 (Tex.Crim.App.2003). Because the term “knowingly” was not used in the charge, there was no need to define it. Thus, the trial court did not err in failing to include the definition in the charge.
This proper analysis also reveals another flaw in the Court’s opinion. The objection was about the exclusion of the definition of a term not used in the charge. The complaint on appeal is about the failure to charge on knowingly, as opposed to intentionally, engaging in the conduct which constitutes evading arrest. The complaint on appeal does not comport with the objection made at trial, and thus presents nothing for our review. Tex.R.App. P. 33.1; see Jenkins v. State, 912 S.W.2d 793, 814-15 (Tex.Crim.App.1993).
The closing sentence of Ester’s argument brings home both problems with the Court’s analysis when she asserts, “The State had to prove knowledge or intent in this case and they had to prove it beyond a reasonable doubt.” (Appellant’s brief, pg 18). The State proved intent; intentional conduct is all that was alleged. And the *667State proved intent beyond a reasonable doubt.
I would hold the trial court did not err in refusing to define “knowingly.” Because the Court determines the error was harmless, we reach the same conclusion to affirm the trial court’s judgment. Accordingly, I concur in the result but not the rationale of the Court’s judgment.