Comment

The Texas Penal Code provides separately and differently for what it calls “Mistake of Fact” (covered in section 8.02) and “Mistake of Law” (covered in section 8.03).

Many modern criminal codes, following the lead of the Model Penal Code, do not distinguish between these types of mistake, that is, between mistakes of fact and those of law. Any evidence of mistake or ignorance “as to a matter of fact or law” requires acquittal of a defendant if it raises a reasonable doubt about whether the prosecution has proved the required culpable mental state. Model Penal Code § 2.04(1) (titled “Ignorance or Mistake”) (Proposed Official Draft 1962). These are what the Texas case law would call failure-of-proof defenses.

The Model Penal Code distinguishes these matters from a third, which consists of proof that the defendant believed the conduct involved did not legally constitute a defense. See Model Penal Code § 2.04(3). In such cases, the defendant has the burden of proof by a preponderance of the evidence. Model Penal Code § 2.04(4). The Model Penal Code did not explicitly call this mistake of law.

The drafters of the Texas Penal Code took the defense defined in section 2.04(3) of the Model Penal Code, labeled it “Mistake of Law,” and embodied it in section 8.03 of the Texas Penal Code. They took the general doctrine of mistake from section 2.04(1) of the Model Penal Code, deleted the language that made it applicable to matters of law as well as to matters of fact, labeled it “Mistake of Fact,” and—with other modifications—embodied it in section 8.02 of the Texas Penal Code.

A general question raised by this is what the legislative intent was regarding what the Model Penal Code would call simple mistakes of fact, that as a logical matter suggest the defendant lacked the culpable mental state required for the charged offense. Did the legislature intend to deny defendants the ability to rely on evidence of mistake showing the lack of the required culpable mental state? Did it intend to limit defendants to section 8.03?

Perhaps mistake of (or ignorance about) law that logically tends to show the defendant lacked the required culpable mental state is a viable failure-of-proof defense. But since the Texas Penal Code makes no explicit reference to it, the jury instructions need not address it and, perhaps, must avoid any reference to it.

A mistake-of-law instruction should be submitted only if a defendant establishes that he (1) reasonably believed that his conduct did not constitute a crime and (2) reasonably relied on either an administrative order or a written interpretation of the law contained in an opinion of a court of record. Green v. State, 829 S.W.2d 222, 223 (Tex. Crim. App. 1992); see also Celis v. State, 416 S.W.3d 419 (Tex. Crim. App. 2013) (discussing mistake-of-fact defense, mistake-of-law defense, and required culpable mental states). Moreover, the defense must be based on controlling law, because it was “not created to allow a criminal defendant to rely upon old ‘interpretive opinions, opinions that conflict with others, or on overruled opinions.’ ” Green, 829 S.W.2d at 223 (rejecting reliance on 1873 U.S. Supreme Court case applying Connecticut common law); Stauder v. State, No. 07-10-0221-CR, 2011 WL 1643689 (Tex. App.—Amarillo May 2, 2011, pet. ref’d) (mem. op., not designated for publication) (rejecting reliance on vacated Texas case).