Comment

Some members of the Committee concluded that instructions simply embodying the traditional construction of Texas Penal Code section 8.02(a) contain what the Texas courts will eventually acknowledge is a fatal federal and perhaps state constitutional defect. These members believed that the Committee should recommend that trial judges instruct juries in a manner making no reference to a requirement of reasonableness, because constitutional considerations bar application of the statutory requirement.

The Committee as a whole, however, offered and recommended an instruction embodying the section 8.02(a) requirement of reasonableness, based on several considerations.

First, the Committee remained unconvinced that application of the current provision would violate constitutional requirements. Apparently no court has found an actual constitutional violation. Despite the language in Cheek v. United States, 498 U.S. 192 (1991), the Supreme Court has shown considerable flexibility in this area, as illustrated by Montana v. Egelhoff, 518 U.S. 37 (1996), and Clark v. Arizona, 548 U.S. 735 (2006). A requirement of reasonableness has traditionally been accepted and remains the law in a number of American jurisdictions. See discussion of these issues at CPJC 8.18.

Second, the Committee believed that any possible constitutional concerns are of minimal practical significance. Whatever the theory, juries—as a practical matter—will seldom or never credit defendants’ arguments that they honestly entertained unreasonable but honest mistakes of fact. Few if any defendants are likely to be harmed by continuing to instruct juries in the manner apparently explicitly directed by the legislature.

Third, any questionable impact of a theoretical requirement that a mistake of fact be reasonable is minimized by the case law limiting trial judges’ power to refuse jury submission because defense evidence does not raise a reasonable mistake of fact.