                                                                           ACCEPTED
                                                                       12-15-00154-CR
                                                          TWELFTH COURT OF APPEALS
                                                                        TYLER, TEXAS
                                                                 9/10/2015 11:43:26 PM
                                                                             Pam Estes
                                                                                CLERK

            NUMBER 12-15-00154-CR

 IN THE TWELFTH DISTRICT COURT OF APPEALS     FILED IN
                                       12th COURT OF APPEALS
               TYLER, TEXAS                 TYLER, TEXAS
                                              9/10/2015 11:43:26 PM
                                                     PAM ESTES
                                                       Clerk
               DANIEL LEE KNOD,
                   Appellant
                       v.
              THE STATE OF TEXAS,
                    Appellee

From the 7th District Court of Smith County, Texas
        Trial Cause Number 007-0010-15

                STATE’S BRIEF

       ORAL ARGUMENT NOT REQUESTED

               D. MATT BINGHAM
            Criminal District Attorney
               Smith County, Texas

                 AARON REDIKER
            Assistant District Attorney
       State Bar of Texas Number 24046692
       Smith County Courthouse, 4th Floor
                Tyler, Texas 75702
              Phone: (903) 590-1720
               Fax: (903) 590-1719
       Email: arediker@smith-county.com
                                                       Table of Contents


Index of Authorities ............................................................................................................ 2
Statement of Facts............................................................................................................... 3
Summary of Argument....................................................................................................... 4
I.ISSUE: As no evidence introduced at appellant’s trial for theft showed that he had
labored under a mistaken belief the owner had abandoned the tire rim, the trial
court did not err in refusing a jury instruction on the defense of mistake of fact. 4
Standard of Review ............................................................................................................. 4
Argument.............................................................................................................................. 5
Prayer .................................................................................................................................. 10
Certificate of Compliance ................................................................................................ 11
Certificate of Service ........................................................................................................ 12




                                                                     1
                                               Index of Authorities


TEXAS CASES
Celis v. State, 416 S.W.3d 419 (Tex. Crim. App. 2013) ....................................................... 6
Granger v. State, 3 S.W.3d 36 (Tex. Crim. App. 1999) ........................................................ 5
Ingram v. State, 261 S.W.3d 749 (Tex. App.—Tyler 2008, no pet.) .............................. 5, 9
Lasker v. State, 573 S.W.2d 539 (Tex. Crim. App. 1978) .................................................... 9
Lima v. State, 107 S.W.3d 774 (Tex. App.—Corpus Christi 2003, no pet.)...................... 8
Mayfield v. State, 848 S.W.2d 816 (Tex. App.—Corpus Christi 1993, pet. ref’d) ............ 9
Mays v. State, 318 S.W.3d 368 (Tex. Crim. App. 2010) ...................................................... 7
Miller v. State, 815 S.W.2d 582 (Tex. Crim. App. 1991) ..................................................... 8
White v. State, 844 S.W.2d 929 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d) ......... 8
Williams v. State, 796 S.W.2d 793 (Tex. App.—San Antonio 1990, no pet.) ................... 9


TEXAS STATUTES
Tex. Penal Code Ann. § 1.07 ............................................................................................... 6
Tex. Penal Code Ann. § 31.03 ............................................................................................. 6
Tex. Penal Code Ann. § 8.02 ............................................................................................... 5
Tex. Penal Code Ann. § 8.03 ............................................................................................. 10




                                                             2
                             NUMBER 12-15-00154-CR

                 IN THE TWELFTH DISTRICT COURT OF APPEALS
                               TYLER, TEXAS

                                DANIEL LEE KNOD,
                                    Appellant
                                        v.
                               THE STATE OF TEXAS,
                                     Appellee

                From the 7th District Court of Smith County, Texas
                        Trial Cause Number 007-0010-15

                                   STATE’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

   Comes now the State of Texas, by and through the undersigned Assistant

Criminal District Attorney, respectfully requesting that this Court overrule

appellant’s sole alleged issue and affirm the judgment of the trial court in the

above-captioned cause.


                                 STATEMENT OF FACTS

      Appellant has stated the essential nature of the proceedings and the

evidence presented at trial (Appellant's Br. 2-3). In the interest of judicial economy,



                                          3
any other facts not mentioned therein that may be relevant to the disposition of

appellant's issue will be discussed in the State's argument in response.


                                SUMMARY OF ARGUMENT

   The record of appellant’s trial contains no evidence raising a “mistake” of a

specific historical fact that, if true, would negate appellant’s intent to deprive the

owner of the property at issue.        Appellant’s argument is based merely on

speculation as to what he may have been thinking when he stole a tire rim from

Hall Truck Center. Even had appellant presented evidence supporting his alleged

mistaken belief that the tire rim had been abandoned, his mistake was one of law

rather than fact.


I. ISSUE: As no evidence introduced at appellant’s trial for theft showed that he
had labored under a mistaken belief the owner had abandoned the tire rim, the
trial court did not err in refusing a jury instruction on the defense of mistake of
fact.

                                 STANDARD OF REVIEW

   A trial court's decision not to include a defensive jury instruction is reviewed

for an abuse of discretion, and this decision will be upheld on appeal if it is correct


                                           4
under any theory of law applicable to the case. Ingram v. State, 261 S.W.3d 749, 752

(Tex. App.—Tyler 2008, no pet.). “It is well settled that an accused has the right to

an instruction on any defensive issue raised by the evidence, whether that

evidence is weak or strong, unimpeached or contradicted, and regardless of what

the trial court may or may not think about the credibility of the evidence.” Granger

v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). “If the evidence viewed in a light

favorable to appellant does not establish a mistake of fact defense, an instruction

is not required.” Id.


                                      ARGUMENT

   In a single issue, appellant argues that the trial court erred in refusing to

instruct the jury on the defense of mistake of fact (Appellant’s Br. 4-16, App. 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.” Tex. Penal Code Ann. § 8.02(a) (West 2014).

“Kind of culpability” means “culpable mental state,” and appellant was thus

entitled to an instruction on the defense of mistake of fact if there was evidence

                                          5
that, through a mistake, he formed a reasonable belief about a matter of fact and

his mistaken belief would negate his intent to deprive the owner of the tire rim

(Clerk’s R. at 2). See Tex. Penal Code Ann. § 31.03(a) (West 2014); Celis v. State, 416

S.W.3d 419, 430 (Tex. Crim. App. 2013). “’Reasonable belief’ means a belief that

would be held by an ordinary and prudent man in the same circumstances as the

actor.” Tex. Penal Code Ann. § 1.07(a)(42) (West 2014).

   Here, appellant claims that he was entitled to an instruction on mistake of fact

due to his mistaken belief that the personal property taken, a tire rim, had been

abandoned (Appellant’s Br. 6-10). The evidence introduced at trial, including video

surveillance footage of the theft at the Hall Truck Center in Tyler (State’s Ex. 5),

showed that appellant and two others drove through the back gate of the property

into the service area, which was surrounded by a perimeter fence topped with

barbed wire, stopped in the employee parking lot near a trash dumpster, recycling

bin, and scrap metal bin, removed an 18-wheeler tire rim from a pile of several

other rims, and took off with it in the back of the vehicle as soon as they were

spotted by an employee (VI Rep.’s R. at 50, 57-60, 107-110; State’s Exs. 6-11).


                                          6
Appellant then sold the tire rim for scrap seven minutes after leaving the property

(VI Rep.’s R. at 137). The general manager of the truck center testified that

appellant did not have permission to take the tire rim, the rear service area where

the rim was being stored with several others was a secure area for employees only

as evidenced by the barbed wire fence, and that the rims were not scrap but were

reusable in the course of his business (Id. at 107-112, 114, 116). Nevertheless,

appellant argues, the tire rim’s proximity to the trash and recycling bins could lead

one to “reasonably assume” that the rim was abandoned rubbish (Appellant’s Br.

9).

      Appellant’s assertions are “based entirely upon speculation about what

appellant might have been thinking or could have thought,” but there is no

evidence that supports a conclusion that appellant believed the tire rim had been

abandoned. See Mays v. State, 318 S.W.3d 368, 382 (Tex. Crim. App. 2010). To raise

the defense of mistake of fact, “evidence must be presented that the defendant

through mistake formed a reasonable belief about a matter of fact and the

mistaken belief would negate the culpable mental state required for commission


                                         7
of the offense.” Lima v. State, 107 S.W.3d 774, 777 (Tex. App.—Corpus Christi 2003,

no pet.) (citing Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991)). “The

defendant is not required to testify to raise the defense of mistake of fact and may

rely on other evidence admitted at trial.” Id. However, in appellant’s case, as in

Lima, “[n]ot a single witness testified, nor was any other evidence offered,

regarding appellant’s alleged mistaken belief.” Id. While appellant took the tire

rim from an area near a trash dumpster and recycling bin, the entire rear employee

service area was surrounded by a gated barbed wire fence (VI Rep.’s R. at 109-110;

State’s Exs. 9-10). No witnesses testified that appellant stated or otherwise

indicated to anyone that he was laboring under the mistaken belief the tire rim

had been abandoned. See White v. State, 844 S.W.2d 929, 933 (Tex. App.—Houston

[1st Dist.] 1992, pet. ref’d) (no evidence raising defense of mistake of fact even

though, “nothing about the car that gave it the appearance of being stolen; that he

was caught possessing the car two days after its theft; that he made no

incriminating statements; that he was driving the car with its key; and that photos

of the car's owners, present in the car at the time of its theft, were not found in the


                                          8
car when appellant was arrested.”); Mayfield v. State, 848 S.W.2d 816, 817 (Tex.

App.—Corpus Christi 1993, pet. ref’d) (“Since there was no evidence that appellant

mistakenly believed the building was open to the public, he was not entitled to a

defensive charge on mistake of fact.”); Williams v. State, 796 S.W.2d 793, 800 (Tex.

App.—San Antonio 1990, no pet.) (“The difficulty with appellant's position is that

there is no evidence he saw the sign and formed a reasonable belief that the area

of the store he entered was opened to the public, and that the mistaken belief

negated any intent to commit theft.”). As there was no evidence that appellant

labored under any mistake of fact, the trial court did not err in failing to so charge

the jury. Lasker v. State, 573 S.W.2d 539, 542 (Tex. Crim. App. 1978).

   Even had appellant presented evidence of his alleged mistaken belief that the

tire rim was abandoned, this mistake would be a mistake of law. See Ingram, 261

S.W.3d at 754. “If a person trespasses onto real property and takes possession of

abandoned personal property, such an act is wrongful and no title to the property

is created in him.” Id. Here, as in Ingram, it is not contested that appellant entered

onto the land and took the personal property at issue without permission from the


                                           9
owner. Even if the tire rim had been abandoned, “appellant would not have been

lawfully entitled to take possession of it,” because the owner of the land possessed

a greater right to the rim. See id. As appellant intended to take the tire rim for

himself from the real property of another, but claims that he did not know such a

taking was illegal, his mistake was one of law, not fact. See id.; Tex. Penal Code Ann.

§ 8.03 (West 2014). Therefore, the trial court did not err in refusing an instruction

on mistake of fact, and appellant’s first issue should be overruled.


                                        PRAYER

   WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the Court

overrule appellant’s sole alleged issue and affirm the judgment of the 7th District

Court of Smith County, Texas, in the above-captioned cause.

                                               Respectfully submitted,

                                               D. MATT BINGHAM
                                               Criminal District Attorney
                                               Smith County, Texas

                                               /s/ Aaron Rediker
                                               Aaron Rediker
                                               Assistant District Attorney

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                                           SBOT #: 24046692
                                           100 North Broadway, 4th Floor
                                           Tyler, Texas 75702
                                           Office: (903) 590-1720
                                           Fax: (903) 590-1719 (fax)
                                           arediker@smith-county.com




                           CERTIFICATE OF COMPLIANCE

   Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned

attorney certifies that the word count for this document is 1,484 words as

calculated by Microsoft Word 2013.

                                           /s/ Aaron Rediker
                                           Aaron Rediker




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                              CERTIFICATE OF SERVICE

   The undersigned hereby certifies that on this 10th day of September 2015, the

State’s Brief in the above-numbered cause has been electronically filed, and a

legible copy of the State's Brief has been sent by email to A. Reeve Jackson,

attorney for appellant, at JLawAppeals@gmail.com.




                                            /s/ Aaron Rediker
                                            Aaron Rediker




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