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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
A defendant may have the right to have the trial court not instruct the jury on what may seem to be a defensive matter. In that case, the giving of an instruction may be error. The court of criminal appeals explained:
A defendant cannot waive submission of an element of the prosecution’s case to the finder of fact. But submission of a defensive issue is a strategic decision to be made by the defendant and his attorney. Not only is a defendant permitted to forego submission of a defensive issue, but he is also entitled to insist that a defensive issue not be submitted.
Williams v. State, 273 S.W.3d 200, 221 (Tex. Crim. App. 2008) (citing Posey v. State, 966 S.W.2d 57 (Tex. Crim. App. 1998), and Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007)).
Some of what are generally regarded as defensive matters may, at least as applied to some situations, favor the state. A proper instruction on voluntary intoxication, for example, is really an instruction that there is no defense of this sort.
A mistake-of-fact instruction might be construed as telling the jury to give less significance to evidence of an unreasonable mistake of fact than the defendant would like. Failure of the instructions to address the matter may permit the defendant to explicitly or implicitly argue to the jury a more favorable version of the legal standard than the law provides. A mistake-of-fact instruction, then, may at least sometimes favor the state.
Consequently, and despite the Williams discussion, the state may sometimes have a right to a jury charge on some defensive matters over the defendant’s objection. Clearly, whether a voluntary intoxication instruction is given cannot depend on the defendant’s preference. Perhaps the same is the case regarding mistake of fact.