Comment

The defense of mistake of law is provided for in Tex. Penal Code § 8.03(b). The definition of “reasonable belief” is based on Tex. Penal Code § 1.07(a)(42).

Defining “Preponderance of the Evidence.” The Penal Code does not define “preponderance of the evidence.” While terms left undefined by the legislature should generally remain so in the charge, there is an exception for terms that have a known and established legal meaning. See Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. App. 2000) (inappropriate for jurors to apply own definitions of “arrest”). The court of criminal appeals has not determined whether “preponderance of the evidence” qualifies under this exception, but it long ago upheld an insanity instruction defining preponderance as “the greater weight of credible testimony.” McGee v. State, 238 S.W.2d 707, 716 (Tex. Crim. App. 1950) (op. on reh’g). Unlike the more common “reasonable doubt” standard—which it is better not to attempt to define, Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000)—further explanation of the term “preponderance” may be of appreciable help to jurors. See Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008) (per curiam) (finding no error in judge’s explanations to counter venire’s confusion between clear-and-convincing and preponderance standards). The “greater weight” or “greater weight and degree” definitions have long been used in both civil and criminal jury charges. See, e.g., Harrell v. State, 65 S.W.3d 768, 772 n.2 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (voluntary release in safe place of kidnapping victim); Watts v. State, 680 S.W.2d 667, 672 (Tex. App.—Fort Worth 1984, pet. ref’d) (defense of insanity); Benton v. State, 107 S.W. 837, 838 (Tex. Crim. App. 1908) (jury charge on former jeopardy). That definition is part of the instruction on preponderance of the evidence required in civil cases. Tex. R. Civ. P. 226a (defining preponderance as “the greater weight of credible evidence presented in this case” and explaining that a fact must be “more likely true than not true” to be proved by a preponderance). The Committee thus concluded it would not be error to define the term for jurors and may frequently be helpful.

Format of Instruction.

Statement of “Rule.” There is a question about how to state the basic “rule.” Although the affirmative defense is titled “Mistake of Law,” the actual statement of the defense does not use that terminology. Instead, it mandates a decision whether the actor “reasonably believed the conduct charged did not constitute a crime.” Tex. Penal Code § 8.03(b). The instruction assumes that communication of the substance of this to juries would be furthered if the instruction makes explicit that this belief must be based on a mistaken perception of the law.

Several alternative formulations of the basic rule are also set out.

Further Specification of Defense “Theory.” The instruction might specifically set out the defense theory and perhaps identify the offered source for the defendant’s mistaken belief—as, for example, the official statement of the law in a written order by an administrative agency or the written interpretation of the law contained in an opinion of a court of record. Doing this might focus the jury’s attention on the need for the defendant to establish that this source is within Penal Code section 8.03(c).

Thus the instruction might specify, for example, that the defendant introduced testimony that he relied on what he regarded as an official statement of the law contained in a hypothetical written opinion of the United States Supreme Court in Jones v. Arkansas.

However, article 36.14 of the Code of Criminal Procedure prohibits the charge from summing up the testimony or discussing the facts.

Ignorance. The final paragraph of the statement of the defense unit is based on the explicit statement in Penal Code section 8.03(a) that ignorance of the provisions of any law is not a defense.

Additional Definitions. A number of additional terms might be defined:

1. “a court of record”
2. “a public official charged by law with responsibility for interpreting the law in question”
3. “an official statement of the law”
4. “an administrative agency charged by law with responsibility for interpreting [a specific] law”

No definitions of these terms or phrases are readily available.

Guilt of Lesser Included Offense. The instruction does not provide for implementation of Penal Code section 8.03(c). Under that section, a defendant who prevails on a mistake-of-fact contention to the charged offense is nevertheless potentially convictable of a lesser included offense of which he would be guilty if the law were as the evidence shows he believed it was.

Certainly a jury should not be instructed on section 8.03(c) unless a lesser included offense is submitted on the basis of this provision. Arguably the instruction on the lesser included offense should incorporate the substance of section 8.03(c).

Problem of Mistaken Belief in Constitutional Protection. A special problem is presented if a defendant does not claim that he misconstrued the substantive criminal law but instead argues that he erroneously believed that constitutional law made his conviction under that substantive law impermissible.

Whether Texas law provides an affirmative defense in these situations is not clear. The critical question seems to be what is meant in Penal Code section 8.03(b) by “believ[ing] the conduct charged did not constitute a crime.”

Arguably, the statutory defense covers a person who at the time of the conduct acknowledged a penal statute purported to cover his conduct but believed a constitution bars his conviction under that statute. Such a person arguably believes his conduct does not constitute an enforceable crime and thus, for all practical purposes, a crime at all. If this is the case, the literal words of the mistake-of-law statute may not convey this to juries.

If it is desirable to provide for this, a special version of the defense of mistake of law might be drafted perhaps by substituting the following for the first part of the statement of the defense:

The court might provide this for use only in an unusual situation in which the evidence raised this specific kind of mistake regarding law.

Problem of Mistake-of-Law Evidence Offered to “Negate” Required Culpable Mental State. In some unusual situations, a criminal offense requires some awareness of the law. When this is the case, a defendant is almost certainly entitled to rely on evidence that because of his mistake about—or ignorance of—that law, he lacked the required culpable mental state.

Section 39.03(a)(1) of the Penal Code, for example, provides: “A public servant acting under color of his office or employment commits an offense if he . . . intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful . . . .”

Suppose a police officer is charged with this offense based on evidence that he arrested the victim. The officer would certainly be entitled to introduce evidence that he mistakenly believed Texas law authorized an arrest of the sort involved. He would even be entitled to introduce evidence that he was simply unaware that Texas law made this sort of arrest unlawful.

If this scenario is correct, should the jury ever be instructed on this? See CPJC 8.23 for discussion regarding the failure of the Texas Penal Code to address this question.

As an initial matter, this would seem to be a nonstatutory defensive matter no different from alibi. It would follow that a jury instruction is not only unnecessary but if given would also constitute a prohibited comment on the evidence.

On the other hand, it is arguable that unlike the alibi situation, the mistake-of-law area includes multiple rules that a jury might well confuse. An instruction on this permissible defensive use of evidence of mistake of law, then, might be justified to assure that the jury understands two things. First, this use of evidence is not barred by Penal Code section 8.03(a)’s statement that ignorance of the law “is no defense.” Second, this use of evidence is completely independent of the very limited defensive use of such evidence permitted under section 8.03(b).

Conceptually, these arguments are really those of mistake of “fact” in which “law” becomes a “fact.” Arguably, defendants’ interests are adequately protected by a plain mistake-of-fact instruction. Or, if special accommodation is to be made, it might be best made in connection with the instruction on mistake of fact.

Accommodation might be made for situations in which the defendant claims a mistake about such law with an instruction along the following lines:

Confession and Avoidance. In Jenkins v. State, 468 S.W.3d 656, 676 (Tex. App.—Houston [14th Dist.] 2015, pet. dism’d), the court held that “the affirmative defense of mistake of law is not subject to the confession and avoidance doctrine.” The court’s reason for this was its recognition that while the affirmative defense is called “mistake of law,” it is more accurately understood as a limited exception to the rule that ignorance of the law is no excuse. Jenkins, 468 S.W.3d at 676 (quoting 43 George Dix and John Schmolesky, Texas Practice Series: Criminal Practice and Procedure § 43:42 (3d ed. 2011)).

Alternate Language for Affirmative Defenses. The Committee concluded that when an affirmative defense is the only defense raised in a trial, jurors are not usually aided by use of the technical term. It typically only has meaning to jurors when used in comparison to a non-affirmative defense. As a result, trial judges have the option of dropping the word affirmative from the instruction. Where any party prefers the technical term, or when both a defense and an affirmative defense are submitted in the same trial (such as with necessity and duress), the bracketed “affirmative defense” language should be used, as well as the first selection under the burden of proof unit of the instruction.