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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 court of criminal appeals appears to have held—as a general rule—that when the reasonableness of a defendant’s mistake about fact is at issue, that is always a jury question.
A trial judge may not refuse to instruct the jury on mistake of fact simply because the judge believes no reasonable jury could or would find that if the defendant entertained the mistake he claims to have entertained, that mistaken belief was unreasonable. This, of course, somewhat mitigates what some Committee members regarded as the offensiveness of the reasonableness requirement.
The controlling case is Granger v. State, 3 S.W.3d 36 (Tex. Crim. App. 1999), holding that the trial judge erred in failing to give a mistake-of-fact instruction. The court reasoned in part:
The State argues, and the Court of Appeals held, that the reasonableness of an accused’s mistaken belief may be evaluated by the trial judge in determining whether the statutory defense is raised. But the appellate court’s holding is contrary to this Court’s previous decision in Hayes v. State, 728 S.W.2d 804, 808 (Tex. Crim. App. 1987) (opinion on rehearing). . . .
. . . .
. . . [A] holding in accordance with the State’s position would tend to undermine the general rule that the jury should be responsible for gauging the credibility and veracity of the defensive evidence. Trial court judges charged with evaluating the “reasonableness” of an accused’s beliefs, no matter how well intentioned, would inevitably be placed in a position in which they were required to make their own decisions about the weight and believability of the defensive evidence.
Granger, 3 S.W.3d at 39–40 (citations omitted). One of the two members of the court not joining the opinion confirmed the significance of the court’s opinion:
I think that there could be extreme situations in which a defendant’s mistaken belief was unreasonable as a matter of law. But such situations would appear to be so rare that trial judges should routinely leave that determination to the jury. This case does not present one of those extreme situations.
Granger, 3 S.W.3d at 41 (Keller, J., concurring in the judgment with note).
One court of appeals has explained Granger as follows:
When an accused creates an issue of mistaken belief as to a culpable mental element of the offense, he is entitled to a defensive instruction on mistake of fact. The court of criminal appeals has made clear that whether a defendant’s belief was reasonable is a fact issue for the jury to decide, not a preliminary consideration for the trial court.
Ingram v. State, 261 S.W.3d 749, 752 (Tex. App.—Tyler 2008, no pet.) (citing Granger, 3 S.W.3d at 39, 41).
Application of Granger is illustrated by Sands v. State, 64 S.W.3d 488 (Tex. App.—Texarkana 2001, no pet.), a prosecution for possession of methamphetamine. The state contended the methamphetamine was contained in a syringe. Sands testified that he received the syringe from one Julie Mason and believed it contained only vitamin B12. The trial court refused a mistake-of-fact instruction, and on appeal the state defended this by emphasizing, “[T]here was no evidence concerning what Mason told Sands about the syringe and no evidence showing conduct by Mason on which Sands could have relied to form his mistaken belief.” Sands, 64 S.W.3d at 493. Under Granger, however, these considerations did not support failure to submit mistake of fact to the jury. “[T]hese are matters that go to prove the reasonableness of Sands’s belief. Reasonableness is a question for the jury.” Sands, 64 S.W.3d at 493.
An exception to Granger’s rule was recognized in Mays v. State, 318 S.W.3d 368 (Tex. Crim. App. 2010), in which defendant Mays sought a mistake-of-fact instruction on the basis of a mistaken belief that he maintained was caused by his mental illness. Rejecting this, the court of criminal appeals explained—
Although the “reasonableness” of a mistaken belief is generally a question for the jury, appellant cannot rely upon evidence of his paranoia and psychotic thinking to raise a “reasonable” mistaken belief concerning the officers’ intentions. The law examines “reasonableness” from the perspective of an ordinary and prudent person, not from that of a paranoid psychotic who is, by psychiatric definition, “unreasonable” in his imagined suspicions, delusions, and fears. Mental disease is not an attribute of the reasonable, ordinary and prudent person. Thus, although the general rule is that the jury must determine the relative credibility of the evidence raising a “reasonable belief” about a fact, reliance upon paranoid beliefs and delusions negates the type of reasonableness that an ordinary and prudent person would have under the circumstances.
Mays, 318 S.W.3d at 383 (footnotes omitted).
Insofar as Texas Penal Code section 8.02 limits mistakes of fact to ones reasonably entertained, Granger somewhat mitigates the impact of this position. Unreasonableness can never be the basis for a trial judge’s refusal to let a defendant make a claim of mistake of fact to the jury.