Comment

The Committee considered a proposal that Texas law may now distinguish two related defensive positions, both of which might be labeled mistake of fact. Only one, however, would implicate Texas Penal Code section 8.02(a). The first is a defendant’s reliance on evidence of mistake to negate a culpable mental state explicitly required by the definition of the charged offense. This is what case law sometimes calls a failure-of-proof defense and would not implicate section 8.02(a). The other is a statutory defense of mistake of fact based on and defined by section 8.02(a).

Mistake of Fact as Failure-of-Proof Defense: Negating Culpable Mental State Required by Elements of Charged Offense. A defendant who relies on evidence of a mistake that logically tends to show the defendant did not have a required culpable mental state, under the proposed approach, is entitled to introduce that evidence. He is also entitled to argue to the jury that the evidence raises at least a reasonable doubt about whether he acted with the required culpable mental state. Whether any mistake shown by the evidence was reasonable or not would be irrelevant, except insofar as unreasonableness might affect the jury’s willingness to believe the defendant actually harbored the mistaken belief.

This defense would not implicate Texas Penal Code section 8.02(a). As a failure-of-proof contention that triggers no explicit statutory provision, under Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998), a jury instruction on it would be a prohibited comment on the evidence.

Application of this approach would be illustrated by a prosecution for unauthorized use of a vehicle under Penal Code section 31.07. This crime requires proof that the defendant at least knew the owner had not consented. See McQueen v. State, 781 S.W.2d 600 (Tex. Crim. App. 1989).

A defendant tried for unauthorized use would be entitled to introduce evidence that he mistakenly believed he had permission from the owner to operate the vehicle. He could also argue to the jury that this evidence at least raised a reasonable doubt whether he acted with knowledge that the owner had not consented. Even obvious unreasonableness of any mistake the evidence showed would be irrelevant to the defendant’s ability—as a “matter of law”—to pursue this defensive approach. (Such unreasonableness might, of course, impair his ability to prevail, that is, to persuade the jury that he in fact actually made the unreasonable mistake.) The defendant would not, however, get any jury instruction on the defensive theory. Specifically, he would get no instruction telling the jurors that if they credited his evidence, they would or should consider this evidence on whether the state had proved, beyond a reasonable doubt, that the defendant knew the owner had not effectively consented.

Mistake of Fact as “Statutory” Defense. A defendant unable to rely on the approach above because his mistake, even if proved, would not negate a required culpable mental state would nevertheless—under the proposed approach—sometimes be able to rely on Texas Penal Code section 8.02. If the defendant raised this, he would be entitled to a jury instruction. That instruction would tell the jury the mistake must have been a reasonable one.

Whether a defendant is able to invoke this statutory defense depends on the construction of the charged offense. Essentially, the courts would have to determine on a crime-by-crime basis whether particular crimes contain implicit mental state requirements that are put into play if—but only if—defendants raise the statutory mistake-of-fact defense.

This approach would arguably be consistent with pre-1974 Texas law. Green v. State, 221 S.W.2d 612 (Tex. Crim. App. 1949), appeared to recognize a nonstatutory defense consisting of any mistake of fact—reasonable or not—that logically suggested a required culpable mental state was lacking.

Committee’s Position. Committee members were divided concerning whether a “failure-of-proof” defense in addition to a statutory mistake-of-fact defense is available. Some members of the Committee believed that there is a real likelihood the court of criminal appeals would adopt this approach. They believed it has support in Texas law and provides a reasonable way to reconcile the Penal Code provision with logical and possible constitutional requirements.

Some Committee members believed that nothing in Texas case law supports the proposition that there might be two mistake-of-fact defenses, one based on Texas Penal Code section 8.02 and a second based on a “failure-of-proof” defense. The words of section 8.02 provide that this defense does apply when a mistake negates the culpability of the defendant (what some Committee members called “failure of proof”). The court of criminal appeals implicitly rejected this two-defense proposal in McQueen, the case some Committee members cited for support of the two-defense approach.

McQueen held that section 8.02 does apply where the defendant made a mistake that negates mens rea. The defendant was charged under section 31.07, unauthorized use of a motor vehicle. Because that offense requires that the state prove that the defendant was aware that he did not have the consent of the owner, he was entitled to a reasonable mistake-of-fact instruction if he erroneously and reasonably believed that he had the motorcycle owner’s consent. McQueen, 781 S.W.2d at 602 n.1. This defendant was tried before a judge, so no jury instructions were given. Moreover, there was no evidence that he believed he had the consent of the owner. Nonetheless, the court specifically noted that had a jury been present and an instruction been necessary, the trial court should have offered a section 8.02 instruction.

More recently, in Mays v. State, 318 S.W.3d 368 (Tex. Crim. App. 2010), the court again held that a defendant’s mistake that negated a required culpability for an offense must be treated under section 8.02. In Mays, the defendant argued that his belief that the people he shot were rogue police officers negated the required culpability for capital murder (that the defendant know he is killing a police officer in the lawful discharge of the officer’s official duties) and thus should have triggered an instruction under section 8.02. Instead, the court held that the defendant’s mistake was so unreasonable (it was due to his paranoia and psychotic thinking) that it didn’t even raise a question for the jury. See Mays, 318 S.W.3d at 383. The court again reiterated that a mistake that negates mens rea must be considered under section 8.02; there was no mention of mistake of fact as an alternative failure-of-proof defense that would have allowed evidence of mistake to rebut existence of mens rea if the mistake were unreasonable.