                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-08-00223-CR
         ______________________________


     LAVERN TCHEFUNCTE DURDEN, A/K/A
       TCHEFUNCTE DURDEN, Appellant

                          V.

         THE STATE OF TEXAS, Appellee



    On Appeal from the 71st Judicial District Court
               Harrison County, Texas
             Trial Court No. 08-0182X




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Carter
       Dissenting Opinion by Justice Moseley
                                             OPINION

        In his version of the circumstances leading to his arrest, Lavern Tchefuncte Durden, a/k/a,

Tchefuncte Durden, was taking a shortcut across a vacant lot on his way to mow the lawn at his

church when he encountered a wheelbarrow filled with copper wire. Thinking that a friend of his

would find a use for the wire, Durden testified that in an effort to assist a friend, he took possession

of the wire-filled wheelbarrow and continued toward the church. Durden's altruistic intentions were

thwarted, however, when he encountered a Marshall police officer on his way.

        The policeman disbelieved Durden's story and arrested Durden, charging him with theft of

the copper wire; Durden was convicted by a jury.

        Durden now appeals, contending in a single point of error that the trial court erred by refusing

to submit a mistake-of-fact instruction in the court's written jury charge. We agree the trial court

erred, but under the requisite standard of review we conclude Durden suffered no actual harm as a

result of that error.

I.      The Standard of Review for Alleged Jury Charge Error and the Relevant Penal Code
        Offense

        Our review of the charge first requires us to determine whether there is error in the jury

charge. If there is error, then we next determine "[i]f the error in the charge was the subject of a

timely objection in the trial court . . . ." Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1984) (op. on reh'g). If the appellant raised a timely objection in the trial court to the error, then the

appellate court must reverse the trial court's judgment if the error "is calculated to injure the rights


                                                    2
of the defendant." TEX . CODE CRIM . PROC. ANN . art. 36.19 (Vernon 2006); Almanza, 686 S.W.2d

at 171. This standard requires proof of no more than "some harm to the accused from the error."

Almanza, 686 S.W.2d at 171. If the appellant did not raise the error at trial, then the appellant can

prevail "only if the error is so egregious and created such harm that he 'has not had a fair and

impartial trial'—in short 'egregious harm.'" Id. "In both situations the actual degree of harm must

be assayed in light of the entire jury charge, the state of the evidence, including the contested issues

and weight of the probative evidence, the argument of counsel and any other relevant information

revealed by the record of the trial as a whole." Id.

       Under our law, a person commits the offense of theft when that person "unlawfully

appropriates property with intent to deprive the owner of property." TEX . PENAL CODE ANN .

§ 31.03(a) (Vernon Supp. 2008). That appropriation is unlawful if, among other things, "it is without

the owner's effective consent" or if "the property is stolen and the actor appropriates the property

knowing it was stolen by another[.]" TEX . PENAL CODE ANN . § 31.03(b) (Vernon Supp. 2008).

       Our law provides the following as one of many defenses to criminal responsibility:

              (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.




                                                   3
TEX . PENAL CODE ANN . § 8.02 (Vernon 2003). This mistake-of-fact defense "is applicable only if

the actor's mistake affects his culpable mental state regarding commission of the offense charged."

Egger v. State, 817 S.W.2d 183, 187 (Tex. App.—El Paso 1991, pet. ref'd) (citing Willis v. State, 790

S.W.2d 307, 314 (Tex. Crim. App. 1990)).

        "[A]n 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 defense." Hamel v. State, 916 S.W.2d

491, 493 (Tex. Crim. App. 1996); see also Allen v. State, 253 S.W.3d 260, 266 (Tex. Crim. App.

2008); Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987); Sands v. State, 64 S.W.3d 488,

494 (Tex. App.—Texarkana 2001, no pet.); Pennington v. State, 54 S.W.3d 852, 856 (Tex.

App.—Fort Worth 2001, pet. ref'd). The rule is designed to ensure that the jury, not the judge, will

decide the relative credibility of the evidence. Sands, 64 S.W.3d at 494. "To be entitled to a

defensive instruction, the defensive issue raised by the evidence must be an issue that both is

established by the penal code and is applicable to the charged offense." Willis, 790 S.W.2d at

314–15 (Tex. Crim. App. 1990). The defendant's testimony may be, by itself, enough to warrant the

issuance of a requested defensive instruction. Hayes, 728 S.W.2d at 807.

       In assessing whether the trial court erred by denying a requested defensive instruction (such

as one on mistake of fact), an appellate court must examine the evidence offered in support of that

defensive issue in the light most favorable to the defense. Almanza, 686 S.W.2d at 171; Pennington,



                                                 4
54 S.W.3d at 856. "Even when the defendant does not testify, there may be enough evidence to

warrant a charge on a defensive issue." Pennington, 54 S.W.3d at 856 (citing Smith v. State, 676

S.W.2d 584, 585, 587 (Tex. Crim. App. 1984)). "When evidence from any source raises a defensive

issue, and the defendant properly requests a jury charge on that issue, the trial court must submit the

issue to the jury." Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993) (emphasis added).

II.    The Evidence and the Trial Court's Ruling on Durden's Requested Mistake-of-Fact
       Instruction

       Durden testified in his own defense. As related above, Durden told the jury that he was on

his way to mow the grass at Galilee Baptist Church on St. Patrick's Day 2008. The path he traveled

between his home and the church was one he walked almost every morning. Part of that path took

him through a trail amidst a field.

       On the day in question, Durden was traveling along that trail when he came across a

wheelbarrow filled with what Durden said he thought was abandoned, junk copper wire, something

which had not been there on his previous walks along the trail.1 Durden stated he then decided to

take the wheelbarrow (along with its contents) and began pushing the wheelbarrow further down the

pathway. Soon thereafter, Durden was seen by a police officer. Durden, according to his continuing

testimony, pushed the wheelbarrow toward the officer. Durden and the officer had a discussion,

       1
        A police officer had earlier testified that law enforcement officials believed this wire had
been stolen from Paul Davis. Davis confirmed that some wire was missing from his place of
business at 612 Higgins Street. Durden had been an employee of Davis until the Fall of 2007.
Durden denied stealing the wire from Davis and repeatedly insisted he found the wire along the trail.
Durden testifed that he daily walked up Higgins Street to get to the trail.

                                                  5
during which Durden told the officer about finding the wheelbarrow and its contents. The officer,

however, believed Durden had stolen the wire and arrested him for theft.

       On cross-examination, Durden repeatedly denied taking the wire with intent to sell it for a

profit. Rather, Durden testified, it was his intention to give the wire to a local tree surveyor, who

commonly used similar copper wire in his tree surveying business. Durden was nevertheless forced

to admit that the field on which the wheelbarrow filled with wire had been located was not land

belonging to Durden; instead, that field was owned by a man whom Durden knew to be also a

member of his church, a man he called Deacon Yancey.

       At the conclusion of the evidence and before the parties presented closing arguments, Durden

requested a jury instruction on mistake of fact:

               DURDEN: Judge, on mistake of fact, we would just request an instruction
       in regards to that.
               As the Penal Code shows, that it is a defense to prosecution that the act,
       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.[2]
               My argument is, Judge, that he testified that he did not take the copper from
       Paul Davis, that he found it, apparently, abandoned, and in his mind, thought it was
       abandoned and that he just moved it a short distance thinking it was abandoned.
               And because of that, we would request mistake of fact.

The trial court denied the request, commenting,

               THE COURT: All right. To me, that's an inferential rebuttal. I mean, they're
       either going to believe him or the other evidence.
               So that request is denied.

       2
         This is an accurate description of the content of the mistake-of-fact defense as it would apply
in this case. TEX . PENAL CODE ANN . § 8.02(a).

                                                   6
               Bring the jury in.

This statement by the trial court suggests that although she agreed there was some evidence that (if

believed by a jury) would negate the culpable mental state of the charged crime, the trial court further

believed that this mistake-of-fact question would be resolved by the jury during the normal process

of weighing the conflicting evidence. In other words, since the jury was instructed that "A person

commits an offense if he unlawfully appropriates property with intent to deprive the owner of the

property," it would necessarily have to disbelieve Durden's claim of mistake of fact before the jury

could determine he had an intent to deprive. Thus, the trial court seems to have believed that

submitting a mistake-of-fact instruction would have been merely an unnecessary or redundant

gesture.3 Based on that apparent conclusion, the trial court denied Durden's request.

III.   Other Appellate Mistake-of-Fact Instruction Cases

       In Willis v. State, the Texas Court of Criminal Appeals discussed a hypothetical situation in

which a defendant testified that he believed certain items he had purchased were items that had been

honestly obtained by a seller of used items. In such a situation, wrote the court, the defendant's

testimony serves to "negate an element of the offense of theft of receiving property stolen by another

(i.e., that he obtained the items knowing they were stolen)." Such evidence does not negate the entire

charged crime "(for he may still possess the items)"; instead, the accused "creates an issue of




       3
        In this belief, the trial court was allied with Chief Justice Cornelius, who expressed the same
view in a concurring opinion in Sands. Sands, 64 S.W.3d at 497.

                                                   7
mistaken belief as to only the culpable mental state element of theft. In such circumstances, the

defendant would be entitled to a defensive instruction of 'mistake of fact . . . .'" 790 S.W.2d at 314.

       In Sands, this Court agreed with the appellant's contention that the trial court erred by failing

to give a mistake-of-fact jury instruction. We reached this conclusion after a concise discussion of

several of the Texas Court of Criminal Appeals' then-recent decisions regarding the entitlement of

defendants to receive such instructions, and each of those cases reached the conclusion that the trial

courts had erred by not giving the requested instruction. We further wrote,

       Thus, in accordance with the decisions from the Court of Criminal Appeals and the
       statute being interpreted, an instruction on the mistake-of-fact defense should be
       given when evidence raising the issue of whether the actor formed a reasonable belief
       about a matter of fact, if his mistaken belief negated the kind of culpability required
       for the commission of the offense. Even if this instruction is repetitive to the
       required proof that the jury find beyond a reasonable doubt that Sands intentionally
       and knowingly committed this required element of the crime, this statute as
       interpreted by the Court of Criminal Appeals requires that such an instruction be
       given to the jury.

64 S.W.3d at 495.

       In Bang v. State, the Thirteenth Court of Appeals held the appellant had been erroneously

denied a mistake-of-fact instruction "because appellant claimed not to know that by his conduct he

was participating in a burglary. When an accused creates an issue of mistaken belief as to the

culpable mental element of the offense, he is entitled to a defensive instruction on 'mistake of fact."

815 S.W.2d 838, 842 (Tex. App.—Corpus Christi 1991, no pet.) (citing Miller v. State, 815 S.W.2d




                                                  8
582, 585 (Tex. Crim. App. 1991); and referencing Hill v. State, 765 S.W.2d 794, 796–97 (Tex. Crim.

App. 1989)).

IV.     The State's Argument

        The State contends Durden's mistake was one of law, not one of fact. The State frames its

argument on appeal by suggesting that Durden's only mistake in this case was "that he was

indifferent as to who that owner [of the wire] may be . . . ." This indifference, according to the State,

regarded proper ownership, which the State asserts is purely a question of law.

        The State's argument attempts to frame the issue now before us in terms of the consequences

that extend from what it characterizes as Durden's mistake of law. The State's thesis, however,

overlooks whether Durden's testimony of mistake could have been interpreted by the jury as

presenting a fact that would negate the accused's culpable mental state. We believe it is this latter

framework that is required by Almanza. It does not matter that we on appeal might hypothetically

reinterpret the evidence as suggesting that the accused was mistaken in his interpretation of the law;

the review standard instead requires us only to inquire whether there is any evidence—when viewed

in the light most favorable to the defense—offering support to the view that due to the appellant's

claimed factual mistake, the appellant lacked the requisite culpable mental state to commit the

alleged crime. This latter framework is also consistent with our opinion in Sands, as well as the

other caselaw discussed above.




                                                   9
V.       Was There Evidence To Support Issuing the Instruction?

         There was some evidence in this case that suggests Durden made a mistake of fact. Durden's

own testimony (i.e., that he found the wire abandoned inside a wheelbarrow along a trail that he

walked almost every day) is at least some evidence that if believed by the jury, would negate that

element of the theft charge regarding the accused's intent to deprive the rightful owner of the

property with possession of the property. Durden's testimony amounts to some evidence that he

believed the copper wire to have been abandoned property, which (if believed) would support a jury

finding that Durden lacked the intent to deprive the true owner of such property.

         Under Willis, and consistent with our previous analysis in Sands, we conclude the applicable

law and the testimonial evidence required promulgating Durden's requested defensive instruction on

mistake of fact. The fact that the mistake-of-fact instruction requested by Durden might be viewed

as repetitive to the required proof that the jury find Durden intentionally or knowingly committed

the charged crime does not obviate the trial court's statutory duty to include that properly requested

instruction. Cf. Sands, 64 S.W.3d at 495. Nor does the view that Durden's testimony might have

been seen by the trial court or the jury as feeble, contradicted, impeached, or incredible undermine

Durden's entitlement to a defensive instruction. Cf. Pennington, 54 S.W.3d at 858. The trial court

erred.




                                                 10
VI.    Harm Analysis

       Having concluded that Durden was entitled to a mistake-of-fact instruction, in order to

correctly apply the proper standard of review we must next determine whether the error in the charge

was the subject of a timely objection in the trial court. Almanza, 686 S.W.2d at 171. The appellate

record answers that question in the affirmative. Accordingly, the jury charge error must be evaluated

to determine whether the trial court's error was "calculated to injure the rights of the defendant."

TEX . CODE CRIM . PROC. ANN . art. 36.19; Almanza, 686 S.W.2d at 171. That determination will,

however, hinge on our assay of the entire jury charge, the state of the evidence, the argument of

counsel, and any other relevant factors. See TEX . CODE CRIM . PROC. ANN . art. 36.19; Almanza, 686

S.W.2d at 171.

       A reasonable summation of the State's case suggests Durden was literally "caught in the act"

of stealing the wire. The State also had quite a bit of evidence that cast doubt on the veracity of

Durden's version of events. Durden was found with a flashlight in his back pocket. This fact was

important, because the wire had been stolen from Davis' business during the night and because

Durden admitted it was daylight when he claimed to have found the wire. As the State pointed out

in its closing argument, one does not normally need a flashlight during the daytime if he or she is

heading to mow the church's lawn. One observes that since Durden walked the path where he said

that the wheelbarrow was located and had not encountered it before, if the copper had been

abandoned, it had not been very long abandoned. Durden had admittedly been previously convicted



                                                 11
of theft.4 There was disagreement among the witnesses regarding whether Durden actually walked

toward the police officer on the morning in question or whether Durden instead changed his direction

of travel once he caught sight of the officer. The officer's version, if believed, suggests that Durden

had evidenced guilt by trying to evade contact with the officer that morning. See, e.g., Figueroa v.

State, 250 S.W.3d 490, 503 (Tex. App.—Austin 2008 pet. ref'd), cert. denied, __ U.S. __, 129 S.Ct.

1340 (2009) (appellant's attempt to flee before his arrest was fact from which jury could have

inferred consciousness of guilt). Davis testified that Durden had worked for him until the Fall of

2007. Davis testified he noticed markings indicating the wire was dragged under his fence.

       Both the State and Durden's trial counsel spent substantial portions of their respective closing

arguments addressing whether Durden's version of events was reasonable and whether it supported

the conclusion that Durden lacked the requisite intent to steal property. At trial, there was never any

question whether Durden was in possession of the purloined copper; rather, the only truly disputed

issue was his state of mind while taking the wire into his possession and keeping it under his control.

In fact, the issue of Durden's intent was arguably the sole contested issue during the entire trial.

       The duty to conduct a harm analysis lies solely on the shoulders of a reviewing court; the

burden is not on the parties to demonstrate it. Warner v. State, 245 S.W.3d 458, 463–64 (Tex. Crim.

App. 2008); Johnson v. State, 43 S.W.3d 1, 4–6 (Tex. Crim. App. 2001). The question that arises



       4
         Durden admitted on direct examination that he had been previously convicted of "buying
stolen property" in cause number 06-0183X, in which he received a six-month sentence. See TEX .
R. EVID . 607, 609.

                                                  12
here in the context of Almanza when there is preserved charging error is, "What is meant by 'some

harm?'" That question has been answered.

        We now expressly find that, in the context of Almanza, supra, and Article 36.19,
        supra, the presence of any harm, regardless of degree, which results from preserved
        charging error, is sufficient to require a reversal of the conviction. Cases involving
        preserved charging error will be affirmed only if no harm has occurred. See id. at
        171 ("In other words, an error which has been properly preserved by objection will
        call for reversal as long as the error is not harmless.").

Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). The harm must be actual and not just

theoretical. Almanza, 686 S.W.2d at 174.

        Our review of the contested and uncontested evidence (including the varying weights of such

evidence) discussed above, the entire jury charge (which included the requirement that the jury

conclude Durden intentionally or knowingly committed the charged crime), the jury arguments for

both sides, and the parties' briefs on appeal lead us to conclude Durden suffered no actual harm as

a result of the trial court's error in denying Durden's mistake-of-fact jury instruction. As we observed

in Sands, the record here reveals—at best—theoretical harm, but it does not reveal evidence of the

actual harm required by Almanza and Arline. We find no reason to abandon the analysis and

precedent established by this Court in Sands.

        In Sands, we analyzed a factual situation and found the trial court erred in failing to submit

a mistake-of-fact instruction, but such error was not harmful. We stated:

               In the present case, the jury came face-to-face with making a decision of
        whether Sands intentionally and knowingly possessed methamphetamine. This puts
        squarely in point the question of whether Sands mistakenly believed that the contents


                                                  13
       of the syringe contained vitamins or he intentionally and knowingly possessed
       methamphetamine. In this situation, Sands was not denied the right to have the jury
       consider the defense that he raised concerning a mistake-of-fact defense. Therefore,
       we find that the failure to submit the requested instruction on mistake of fact was not
       harmful error.

Sands, 64 S.W.3d at 496.

         Likewise, here, the jury was instructed that in order to find Durden guilty, it must find that

Durden appropriated property "with the intent to deprive the owner of the property . . . ." As in

Sands, this requirement allowed the jury to consider whether Durden mistakenly believed that the

copper wire was abandoned or he took the property with the intention of depriving the owner of that

property. Durden had his day in court. The jury heard Durden testify. His attorney cross-examined

the State's witnesses and presented a vigorous closing argument. Ultimately, the jury disbelieved

Durden's testimony that he lacked the specific intent to commit this theft.

       While in some instances the denial of a proper defensive instruction would cause harm by

preventing the defendant from arguing an issue, i.e., self-defense, here, Durden fully argued that he

thought the wire was abandoned and that he had no intent to deprive the owner of the property ("did

the state prove beyond a reasonable doubt that he took these wires from Paul Davis with the intent

to deprive him of his property. That's what you have to decide."). While the trial court did err by

denying the mistake-of-fact instruction, the jury's verdict inferentially resolved the issue that would

have otherwise been required via the requested instruction. It would require us to resort to mere

conjecture to conclude, on this evidentiary record, that Durden suffered any actual harm. The



                                                  14
standard of review to assess jury charge error requires, however, more than mere conjecture. We

conclude Durden suffered no actual harm as a result of the trial court's error.

       We affirm the trial court's judgment.




                                                       Jack Carter
                                                       Justice



                                      DISSENTING OPINION

       As pointed out by the majority, the defense of mistake of fact is recognized and described

in the Texas Penal Code.5 When the evidence at trial raises it, the trial court is instructed to have

the jury charge include instructions "distinctly setting forth the law applicable to the case."6

       Avoiding the redundancy of repeating the test in Almanza,7 I am in agreement with the

majority that the trial court erred in refusing the defense's request to include an instruction on

mistake of fact. I further concur that there must only be "some harm" occasioned to a defendant by




       5
           TEX . PENAL CODE ANN . § 8.02 (Vernon 2003).
       6
           TEX . CODE CRIM . PROC. ANN . art. 36.14 (Vernon 2007).
       7
           Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).

                                                  15
such a preserved nonconstitutional charging error before a reversal is required.8 My difference with

the majority lies in the definition of "some harm" as it applies to the case before us here.

       The majority points out that the mistake-of-fact defense was present throughout the trial,

commencing at the voir dire, continuing through the evidence, and argued in summation. In fact,

Durden never contested that the wire had been stolen. He admitted that he was in possession of the

stolen copper wire and that it did not belong to him. The sole question for the jury to determine was

whether he had taken his course of action under the mistaken impression that he was justified in

taking it from the place he alleged he had found it. It is because this point was so fully covered in

all phases of the trial that the majority has determined that Durden suffered no harm when the trial

court refused his request for the inclusion of an instruction of a mistake-of-fact defense.

       Apparently, defining what is meant by "some harm" is as difficult as nailing Jell-O to a tree;

although one might think that it is firmly nailed down, it slithers off the nail. Recognizing the

elusive nature of that term, Almanza instructs that looking at the full record "may illuminate the

actual, not just theoretical, harm to the accused." Almanza, 686 S.W.2d at 174. Distinguishing

between the actual versus the theoretical harm is the balancing act which the appellate courts must

perform.




       8
        "Preserved jury charge error is evaluated under Almanza's 'some harm' standard unless we
determine that the error is constitutional in nature, in which case the 'beyond a reasonable doubt
harmless' standard would apply." Williams v. State, 273 S.W.3d 200, 225 (Tex. Crim. App. 2008).

                                                 16
        In looking at the word "theoretical," we are met with the definition "existing only in theory."

MERRIAM -WEBSTER COLLEGIATE DICTIONARY 1296 (11th ed. 2003). Backing up a step, the closest-

fitting definitions of "theory" are "The analysis of a set of facts in their relation to one another,"

"abstract thought," "the general or abstract principles of a body of fact," "a plausible or scientifically

acceptable general principal or body of principle," "a hypothesis assumed for the sake of argument

or investigation," or "an unproved assumption." Id. Since re-creation of the exact trial as it

happened (but ameliorating an error which has occurred) is totally impossible, theoretical analysis

is precisely what appellate courts must do in any harm analysis. We must often postulate things that

did not occur in order to posit an outcome. Accordingly, in appears that the Almanza explanation

that we are not to look at theoretical harm is not very helpful in determining whether "some harm"

exists. One comes to the conclusion after parsing the words that are used in Almanza in describing

what is to be done in review on appeal, if we ignored all theoretical harm, we could almost never

find that harm resulted, no matter how egregious the circumstances might be.

        Rather more helpful is the discussion of what is meant by "some harm" found in Arline v.

State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986), in which the Texas Court of Criminal Appeals

stated that some harm meant any harm (emphasizing both words to reflect that they are synonyms

when determining the amount of scrutiny to be applied).

        Applying that yardstick, we now look at Durden's entire trial. As pointed out by the majority,

the entire case presented by Durden in defense was that he was mistaken and, therefore, because of



                                                   17
his mistake, he did not possess the necessary mens rea to have committed the crime of theft. From

the beginning of the trial until its end, this was the thrust of the controversy. Due to its importance

and the large proportion of the trial which was consumed by it, the majority believes that the issue

of that defense was adequately covered and explained and, therefore, Durden suffered no harm.

       For the very same reason, I believe that Durden did suffer harm. The centrality of the

question of the mistake-of-fact defense in the trial is undeniable. A jury is not nearly so precise

about words as judges and lawyers; such things as "with the intent to deprive" might not be as

concrete to a juror as to a trained legal specialist. An instruction in the charge which would have

explained the mistake-of-fact defense would have served to magnify its importance and the viability

of the defense which had been mounted. Durden could have then correctly argued on closing that

the jury must first have found that there was no mistake of fact before it went on to discuss whether

the State had met its burden of proof on each of the elements of the charged offense. He could

further have used the requested instruction to emphasize in closing argument that it was not just his

opinion that the jury could not find guilt if there had been a mistake of fact, but that the court had

instructed it precisely that mistake of fact was a valid defense.

       When the law requires that an instruction be given, when the defendant calls that law to the

attention of the trial court (apparently while reading from the statute describing the defense itself),

and when the trial court refuses the requested-but-proper instruction, we should not look at the

potential harm with a cavalier eye, but we should rather look to see if "any" harm resulted. Although



                                                  18
it may be simply theoretical to attempt to crawl into the minds of the jurors to determine whether the

additional emphasis the requested instruction would have placed on Durden's sole defense to the

charge, I cannot help but believe that there was "some" harm which resulted. The question of

whether it would have tipped the scales in his favor is a question we are neither required to answer

nor is anyone now capable of answering.9

       The most cogent reason to reject Durden's appeal is this Court's ruling in Sands v. State, 64

S.W.3d 488, 494 (Tex. App.—Texarkana 2001, no pet.), which should be considered precedent here.

It is our duty to give strong adherence, when possible, to the doctrine of stare decisis when analyzing

the merits of a case due to the value which consistency of the laws provide. Our own Texas Court

of Criminal Appeals has observed that "we should take into account the interests underlying the rule

of stare decisis: Often it is better to be consistent than right." Malik v. State, 953 S.W.2d 234, 236

(Tex. Crim. App. 1997). The doctrine of stare decisis is a bulwark of Anglo-American jurisprudence

because it serves the important purpose of ensuring "the stability of the law." Lawrence v. Texas,

539 U.S. 558, 577 (2003). On the other hand, we need to observe that "Stare decisis is not an

inexorable command; rather, it 'is a principle of policy and not a mechanical formula of adherence

to the latest decision.'" Payne v. Tennessee, 501 U.S. 808 (1991). Although the majority opinion

here is well reasoned and I do not suggest that it is not rationally founded, a blind adherence to stare

       9
         Had this issue been raised in a hearing on a motion for new trial, a juror would have been
prohibited from testifying "to the effect of anything on any juror's mind or emotions or mental
processes, as influencing any juror's assent to or dissent from the verdict or indictment." TEX . R.
EVID . 606(b).

                                                  19
decisis in all cases reminds one of Einstein's definition of insanity: doing the same thing over and

over again and expecting different results. Stare decisis is not a command to repeat the mistakes of

the past. By finding that there is no harm in this case, it places the alert and objecting defendant on

virtually the same plane as the defendant who sleeps through his objections at trial; here, the trial

court was timely alerted to the mistake-of-fact defense and the request for an instruction involving

it. In both the Sands case and in this matter, a finding that no harm resulted from refusing to submit

an instruction that was the core of the defense is tantamount to our encouraging the disregard of the

statute which directs that such an instruction be included when raised by the evidence.

       In these circumstances, since I believe that Durden suffered some harm from the error, I

would reverse.



                                                       Bailey C. Moseley
                                                       Justice

Date Submitted:        April 24, 2009
Date Decided:          May 15, 2009

Publish




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