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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
Before enactment of the 1974 Penal Code, former article 41 stated:
If a person laboring under a mistake as to a particular fact shall do an act which would otherwise be criminal he is guilty of no offense, but the mistake of fact which will excuse must be such that the person so acting under a mistake would have been excusable had his conjecture as to the fact been correct, and it must also be such mistake as does not arise from a want of proper care on the part of the person so acting.
Tex. Penal Code art. 41 (1925), repealed by Acts 1973, 63d Leg., R.S., ch. 399, § 1 (S.B. 34), eff. Jan. 1, 1974. Article 41 demanded that a mistake of fact not arise from a want of proper care. This is, of course, the equivalent of a requirement that the mistake be a reasonable one.
This provision—and its requirement of reasonableness—was often enforced. See Brown v. State, 28 S.W.2d 143, 144 (Tex. Crim. App. 1930) (“[T]he charge sought by appellant was defective in failing to embrace an instruction to the effect that the mistake of fact under which appellant was laboring must not be the result of want of proper care on the part of appellant.”).
The court of criminal appeals, however, held that the statutory bar to defensive reliance on a mistake of fact arising from a “want of proper care” did not apply to “those crimes where the unlawful intent is an essential element without which the offense does not arise.” Green v. State, 221 S.W.2d 612, 616 (Tex. Crim. App. 1949) (opinion on motion for rehearing).
Green was a prosecution for theft of hogs in which the defendant introduced evidence that he mistakenly believed he owned the hogs at issue. The trial court was found to have erred in giving a mistake instruction permitting acquittal on this ground only if the mistake did not arise from a want of proper care. Case law going back to Bray v. State, 41 Tex. 203 (1874), the court of criminal appeals reasoned, established that a claim of right, even if based on want of proper care, is inconsistent with the requirements of theft. Consequently—
[A]ppellant has brought himself within the rule of law [stated in the case law] and . . . he was entitled to have the jury instructed in accordance therewith, to the effect that if he acted under a mistaken claim of right, in good faith believing that the hogs belonged to him, he would not be guilty—and this, without reference to whether that belief “did not arise from want of proper care” on his part.
Green, 221 S.W.2d at 616. Generalizing, the court continued:
In order that no confusion may arise, it should be again pointed out that the rule of law here announced and the interpretation placed upon Art. 41, P.C., apply only to those crimes where the unlawful intent is an essential element without which the offense does not arise.
Green, 221 S.W.2d at 616.
In 2007, the court of criminal appeals—discussing transferred intent and mistake of fact—summarized Green in a manner confirming its treatment of the then-statutory requirement of want of due care. Thompson v. State, 236 S.W.3d 787, 794–95 (Tex. Crim. App. 2007).
Green, then, arguably recognized in pre-1974 Texas law a nonstatutory failure-of-proof defense of mistake of fact that did not embody the statutory requirement that a mistake have been reasonable. Since former article 41 provided for this two-part approach, current Penal Code section 8.02(a) might have been intended to preserve that approach. Green’s insistence on a jury instruction concerning the failure-of-proof defense was consistent with jury instruction law in effect at that time. Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998), changed the law on jury instructions concerning nonstatutory failure-of-proof defenses. It did not affect the substantive mistake-of-law doctrine recognized and reaffirmed in Green.
Some Committee members did not believe that the Green case presents a problem for current interpretation of section 8.02. As the court of criminal appeals later explained in Thompson, the statute applicable in 1948, article 41, did not apply to Green because, pursuant to article 41, mistake did not have to negate the culpable mental state required for the offense. Since article 41 did not apply, neither did its provision that the mistake not arise from a want of proper care. Since the statutory law was amended in 1973, the new reasonable mistake-of-fact provision does require that the mistake negate the culpable mental state required for the offense (and does require that the mistake be a reasonable one). When the legislature was considering the 1970 amendments, the State Bar committee proposed a “claim of right” defense to theft that would have codified the Green case. Under proposed section 31.10, a mistake of fact about ownership would have to have been only honest, not reasonable. The legislature rejected this proposal and adopted current section 8.02 in 1973.
In Louis v. State, 393 S.W.3d 246 (Tex. Crim. App. 2012), the court of criminal appeals discussed Thompson and provided additional guidance on instructions for transferred intent and mistake of fact. see Thompson, 236 S.W.3d 787. The court of criminal appeals held that the trial court harmfully erred in denying a mistake-of-fact instruction in a capital murder case that also alleged lesser included offenses. The trial court had submitted instructions on transferred intent, but those instructions did not apply to the capital murder allegations because capital murder is a result-of-conduct offense and intent cannot be transferred from a lesser included offense to a capital offense. Nevertheless, the transferred-intent instructions were applicable to lesser included offenses (for example causing bodily injury to a child and causing serious bodily injury to a child), and, thus, a mistake-of-fact instruction should also have been given. The court explained:
Because the transferred-intent instruction was applied to all of the offenses in the jury charge and authorized conviction of each specific offense, if causation were transferred pursuant to § 6.04, the mistake-of-fact instruction was needed to permit the jury to negate the transferred intent if the jury believed that appellant had a reasonable mistaken belief about the type of injury he was inflicting.
Louis, 393 S.W.3d at 253–54.