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My AccountChapter 8
- 8.1 Categorizing Defenses
- 8.2 Burdens of Proof and Production under Texas Penal Code Chapter 2
- 8.3 Explaining to Jury State’s Burden of Proof on Defenses
- 8.4 Nonstatutory Defensive Positions and Jury Instructions
- 8.5 Instructions on Inconsistent Defenses
- 8.6 “Confession and Avoidance”: Need to Admit Offense
- 8.7 Failure to Instruct on Defense Cannot Be “Fundamental” Error
- 8.8 Defendant’s Right to Have No Instruction on Defense
- 8.9 Relationship of Necessity to Other Defensive Positions
- 8.10 Insanity Generally
- 8.11 Consequences of Insanity Acquittal
- 8.12 Defining “Wrong”
- 8.13 Defining “Severe Mental Disease or Defect”
- 8.14 Instruction—Insanity
- 8.15 Diminished Capacity Generally
- 8.16 Basic Framework for Mistake of Fact under Texas Law
- 8.17 Pre-1974 Texas Mistake-of-Fact Law
- 8.18 Other Jurisdictions and Potential Constitutional Problem
- 8.19 Possible Alternative Approach—Two Mistake-of-Fact Defenses
- 8.20 Reasonableness of Mistake as Matter for Court Rather Than Jury
- 8.21 Committee’s Approach
- 8.22 Instruction—Mistake of Fact
- 8.23 Texas Penal Code Distinction between Mistakes of “Fact” and Mistakes of “Law”
- 8.24 Instruction—Mistake of Law
- 8.25 Voluntary Intoxication Generally
- 8.26 Instruction—Voluntary Intoxication
- 8.27 Involuntary Intoxication Generally
- 8.28 The Committee’s Approach to Involuntary Intoxication
- 8.29 Instruction—Involuntary Intoxication
- 8.30 General Law of Duress
- 8.31 Instruction—Duress (Felony)
- 8.32 Instruction—Duress (Misdemeanor)
- 8.33 Entrapment Generally
- 8.34 Status of “Informers”
- 8.35 Instruction—Entrapment
Comment
The Committee found mistake of fact deceptively difficult to address. The basic law is set out in Texas Penal Code section 8.02(a):
It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.
Tex. Penal Code § 8.02(a). The “kind of culpability” means “culpable mental state,” and consequently, an instruction on mistake of fact is required only when the mistake negates the culpable mental state required for the offense. Celis v. State, 416 S.W.3d 419, 430 (Tex. Crim. App. 2013) (plurality op.); Beggs v. State, 597 S.W.2d 375, 378 (Tex. Crim. App. [Panel Op.] 1980). For example, the defendant’s reasonable belief that his bar-room-brawl-type assault on the victim would not result in serious bodily injury does not warrant a mistake-of-fact instruction in a prosecution for aggravated assault because that offense does not require a culpable mental state as to serious bodily injury, only bodily injury. Rodriguez v. State, 538 S.W.3d 623, 630 (Tex. Crim. App. 2018). In contrast, the defendant would be entitled to a mistake-of-fact instruction on similar facts in an injury-to-a-child prosecution, which requires the state to prove culpable mental state with respect to causing serious bodily injury. Rodriguez, 538 S.W.3d at 626–27.
The court of criminal appeals has repeatedly indicated that where the evidence raises transferred intent under Tex. Penal Code § 6.04(b)(1) and the jury is instructed under that provision, giving a mistake-of-fact instruction (if requested) should be automatic. Rodriguez, 538 S.W.3d at 626–27 (citing Louis v. State, 393 S.W.3d 246, 253 (Tex. Crim. App. 2012); Thompson v. State, 236 S.W.3d 787 (Tex. Crim. App. 2007)). This pairing of transferred intent and mistake of fact (and more fundamentally, the court’s interpretation of section 6.04(b)(1)) has been the subject of repeated criticism. For additional discussion, see chapter 4.
The defense is a failure-of-proof defense. A jury instruction is required despite Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998), however, because mistake of fact is a failure-of-proof defense specifically provided for by statute.
Some members of the Committee believed that a literal application of the statutory provision is logically inconsistent with the subjective culpable mental states required by many crimes. Thus jury instructions including both mistake of fact as defined by statute and the culpable mental states as defined by statute would be internally inconsistent. Such instructions might also be unconstitutional, at least as applied to some situations.
The essence of the problem, these members of the Committee believed, is that section 8.02(a) appears to direct that an honest but objectively unreasonable mistake of fact be given no effect by juries. This seems to be required even if, as a matter of logical analysis of the evidence, that mistake makes clear that the state has failed to prove the culpable mental state the instructions tell the jury must be proved.