Chapter 31
Theft
31.11 Instruction—Defense of Mistake of Fact
[Insert instructions for underlying offense.]
If you all agree the state has proved, beyond a reasonable doubt, each of the [number] elements listed above, you must next consider whether the defendant is not guilty because of the defense of mistake of fact.
Mistake of Fact
It is a defense to theft that the person through mistake formed a reasonable belief about a matter of fact and the mistaken belief negated the kind of culpability required for commission of the offense.
Burden of Proof
The defendant is not required to prove that he made a mistake of fact. Rather, the state must prove, beyond a reasonable doubt, that the defendant did not make a mistake of fact constituting a defense.
Definitions
Reasonable Belief
“Reasonable belief” means a belief that an ordinary and prudent person would have held in the same circumstances as the defendant.
Application of Law to Facts
To decide the issue of mistake of fact, you must determine whether the state has proved, beyond a reasonable doubt, that either—
- the defendant did not believe he was the owner of the property; or
- the defendant’s belief that he was the owner of the property was not reasonable.
You must all agree that the state has proved, beyond a reasonable doubt, either element 1 or 2 listed above. You need not agree on which of these elements the state has proved.
If you find that the state has failed to prove, beyond a reasonable doubt, either element 1 or 2 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the elements of the offense of theft, and you all agree the state has proved, beyond a reasonable doubt, either element 1 or 2 listed above, you must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Comment
The defense of mistake of fact is provided for in Tex. Penal Code § 8.02(a). The definition of “reasonable belief” is based on Tex. Penal Code § 1.07(a)(42).
Theft cases sometimes raise claims by defendants that they are entitled to exoneration because they believed the property at issue belonged to them. The Committee concluded that, under existing theft law, such claims if they are specifically reflected in the jury instructions would be addressed by the addition of a section on mistake of fact based on Tex. Penal Code § 8.02(a). Cf. Willis v. State, 802 S.W.2d 337, 339 (Tex. App.—Dallas 1990, pet. ref’d) (defendant’s request for good-faith purchase instruction put trial judge on notice of need to charge jury on mistake of fact in theft prosecution).
Theft does not explicitly require that the property be owned by another or that the defendant be proved to have been aware of ownership by another. It does, however, explicitly require proof of intent to deprive “the owner,” obviously someone other than the accused, of the property. This implicitly requires proof the defendant believed someone else was the owner. Evidence that the defendant mistakenly believed he owned the property, then, may negate the necessary proof of this intent to deprive. See Reyes v. State, 422 S.W.3d 18, 30–31 (Tex. App.—Waco 2013, pet. ref’d) (defendant was entitled to mistake-of-fact instruction based on evidence that he believed that stolen property was in fact lawfully in possession of third party for whom he pawned property); Durden v. State, 290 S.W.3d 413, 419 (Tex. App.—Texarkana 2009, no pet.) (defendant was entitled to mistake-of-fact instruction based on his testimony that he found stolen wire abandoned inside wheelbarrow).
Mistake of fact can arise in other situations in theft cases. See Green v. State, 899 S.W.2d 245, 248 (Tex. App.—San Antonio 1995, no pet.) (defendant was entitled to mistake-of-fact instruction when he claimed that he actually thought he had money in bank to cover check).