Affirmative Defenses in Criminal Cases in Texas: Part II of VII

Originally published by Benson Varghese.

Affirmative Defenses in Criminal Cases in Texas: Mistake of Fact

Part II of VII

Continuing in our series of affirmative defenses in Texas, “mistake of fact” is the second affirmative defense set out by the Texas Penal Code. As with all affirmative defenses, with mistake of fact, the accused is first affirming that the offense did take place, while also providing a legal basis to prevent the accused from being held criminally responsible for the offense.

A mistake of fact is a defense that can be raised if the defendant made a mistake, the mistake was one that  could be reasonably made, and if the facts were as the defendant thought they were, the defendant would not have had the requisite mental state to be convicted of a crime. That’s a complicated definition, and a defense that can be complex in practice.

Example of a Mistake of Fact Defense in Texas

An oversimplified example may be this: the defendant picks up a cellphone with the mistaken belief that it is his. He later charged with theft of the cell phone. His mistake negates the “intentionally or knowingly” mental state requirement that the prosecution must prove in order to secure a conviction.

So why is this not a commonly raised defense? For one very important reason: It is up to a jury (or fact-finder) to determine if the mistaken belief was reasonable. See Granger v. State, 3 S.W.3d 36 (Tex. Crim. App. 1999)

Notice that a mistake of fact can only be raised in a case where there is a mental state or mens rea requirement. It cannot be raised in strict liability cases. Whether or not the defense can be raised, and whether the defense will be successful, is largely dependent on the facts and whether the defense attorney can convince the fact-finder that the mistake of fact was reasonable. For example, while the offense itself is not strict liability in sexual assault of a minor case, there is no requirement that the accused knew the victim was underage, therefore you cannot raise a mistake of fact defense claiming the accused was mistaken about the age of the victim.

If you or a loved one has been charged with a criminal offense where you believe there may have been a mistake of fact, it is important to have an attorney who understand juries and the prosecutors in the jurisdiction that you are in. An experienced criminal defense attorney who has tried a large number of jury trials will be able to give you an idea of how strong your mistake of fact defense is and how it may play out with a jury.

The Mistake of Fact defense is laid out in Penal Code Section 8.02:

Mistake of Fact

(a) It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.

(b) Although an actor’s mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser-included offense of which he would be guilty if the fact were, as he believed.

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