                                                                                  ACCEPTED
                                                                              12-15-00154-CR
                                                                 TWELFTH COURT OF APPEALS
                                                                               TYLER, TEXAS
                                                                         8/11/2015 5:06:50 PM
                                                                                CATHY LUSK
                                                                                       CLERK

                       12-15-00154-CR

                                                             FILED IN
                                                      12th COURT OF APPEALS
          IN THE TWELFTH COURT OF              APPEALS TYLER, TEXAS
                    TYLER, TEXAS                      8/11/2015 5:06:50 PM
                                                           CATHY S. LUSK
                                                               Clerk

                    DANIEL LEE KNOD

                                Appellant,

                               v.

                   THE STATE OF TEXAS

                                    Appellee



On Appeal from the Seventh District Court of Smith County, Texas
                 Trial Cause No. 007 -0010-15




          ORAL ARGUMENT NOT REQUESTED


                           Austin Reeve Jackson
                           Texas Bar No. 24046139
                           112 East Line, Suite 310
                           Tyler, TX 75702
                           Telephone: (903) 595-6070
                           Facsimile: (866) 387-0152
                   IDENTITY OF PARTIES AND COUNSEL


Attorney for Appellant

Appellate Counsel:
Austin Reeve Jackson
112 East Line, Suite 310
Tyler, TX 75702

Trial Counsel:
Kurt Noell
231 S. College Ave.
Tyler, TX 75702

Attorney for the State on Appeal

Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702




                                            ii
                                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS............................................................................................... iii
INDEX OF AUTHORITIES ......................................................................................... iv
STATEMENT OF THE CASE....................................................................................... 2
ISSUE PRESENTED ...................................................................................................... 2
STATEMENT OF FACTS ............................................................................................. 2
SUMMARY OF THE ARGUMENT ............................................................................. 3
ARGUMENT .................................................................................................................. 4

    I.      THE TRIAL ERRED IN DENYING A TIMELY REQUESTED
            JURY INSTRUCTION AS TO THE DEFENSE OF MISTAKE
            OF FACT ......................................................................................................... 4
     Standard of Review ................................................................................................... 4
     Applicable Statutes ................................................................................................... 4
     Applying This Law to The Instant Case ................................................................... 6
     Mr. Knod was Entitled to the Instruction ............................................................... 12
     The Trial Court's Denial of the Instruction Harmed Mr. Knod .............................. 13

CONCLUSION AND PRAYER .................................................................................. 17
CERTIFICATE OF SERVICE ..................................................................................... 17
CERTIFICATE OF COMPLIANCE ............................................................................ 17
APPENDIX A -- DEFENDANT'S REQUESTED MISTAKE OF FACT
INSTRUCTION ............................................................................................................ 18
APPENDIX B -- CHARGE OF THE COURT TO JURY ........................................... 20




                                                            iii
                                  INDEX OF AUTHORITIES


TEXAS SUPREME COURT AND COURT OF CRIMINAL APPEALS:

Almanza v. State,
  686 S.W.2d 157 (Tex.Crim.App. 1985) ........................................................ 4, 13

Arline v. State,
 721 S.W.2d 348 (Tex.Crim.App. 1986) ........................................................ 13

Beggs v. State,
 597 S.W.2d 375 (Tex.Crim.App. 1980) ........................................................ 16

Celis v. State,
 416 S.W.3d 419 (Tex.Crim.App. 2013) ........................................................ 11-12

Granger v. State,
 3 S.W.3d 36 (Tex.Crim.App. 1999) .............................................................. 5-6

Hamel v. State,
 916 S.W.2d 491 (Tex.Crim.App. 1996) ........................................................ 5, 12

Jackson v. State,
  646 S.W.2d 225 (Tex.Crim.App. 1983) ........................................................ 16-17

Jordan v. State,
  107 Tex.Crim. 414, 296 S.W. 585 (1927) .................................................... 6

Mendoza v. State,
 88 S.W.3d 236 (Tex.Crim.App. 2002) .......................................................... 5, 6

Miller v. State,
 815 S.W.2d 582 (Tex.Crim.App. 1991) ........................................................ 13

Ovalle v. State,
 13 S.W.3d 774 (Tex.Crim.App. 2000) .......................................................... 4

Willis v. State,
 790 S.W.2d 307 (Tex.Crim.App. 1990) ....................................................... 5


                                                    iv
TEXAS COURTS OF APPEAL:

Bang v. State,
 815 S.W.2d 838 (Tex.App.—Corpus Christi 1991) ...................................... 13

Durden v. State,
 290 S.W.3d 413 (Tex.App.—Texarkana 2009) ............................................. passim

Egger v. State,
 817 S.W.2d 183 (Tex.App.—El Paso 1991) ................................................. 5

Green v. State,
 899 S.W.2d 245 (Tex.App.—San Antonio 1995).......................................... 16

Ingram v. State,
  261 S.W.3d 749 (Tex.App.—Tyler, 2008) .................................................... 9, 10, 11

Murchison v. State,
 93 S.W.3d 239 (Tex.App.—Houston [14th Dist.] 2002) ............................... 5, 6

Ochoa v. State,
 119 S.W.3d 825 (Tex.App.—San Antonio 2003).......................................... 4

Sands v. State,
 64 S.W.3d 488 (Tex.App.—Texarkana 2001) ............................................... 12


STATUTES:

TEX. CODE CRIM. PROC. art. 36.19 .................................................................... 4, 13

TEX. PEN. CODE § 8.02 ...................................................................................... passim

TEX. PEN. CODE § 31.03 .................................................................................... passim




                                                          v
                               12-15-00154-CR


                  IN THE TWELFTH COURT OF APPEALS
                            TYLER, TEXAS


                            DANIEL LEE KNOD

                                        Appellant,

                                       v.

                          THE STATE OF TEXAS

                                            Appellee



       On Appeal from the Seventh District Court of Smith County, Texas
                        Trial Cause No. 007 -0010-15




TO THE HONORABLE JUSTICES OF THE COURT:

      Comes now, Daniel Knod, by and through his attorney of record, Austin

Reeve Jackson, and files this his brief pursuant to the Texas Rules of Appellate

Procedure, and would show the Court as follows:
                         STATEMENT OF THE CASE

      Daniel Knod appeals his conviction and sentence for the offense of felony

theft. (I CR 72). Mr. Knod was indicted for this offense in the Seventh District

Court of Smith County in January of 2015. (I CR 2). To this charge he entered a

plea of “not guilty” and proceeded to trial by jury. (I CR 72). Ultimately, Mr.

Knod was found guilty and sentence by the trial court to serve a term of eighteen

years’ confinement. (Id.). Sentence was pronounced on 27 May and notice of

appeal then timely filed. (I CR 69, 72).

                              ISSUE PRESENTED

      I.      THE TRIAL COURT ERRED IN DENYING A TIMELY
              REQUESTED JURY INSTRUCTION AS TO THE
              DEFENSE OF MISTAKE OF FACT.

                        STATEMENT OF THE FACTS

      In December of last year an employee at Hall GMC in Tyler noticed a

vehicle drive out to some dumpsters located on Hall’s property. (VI RR 49). The

dumpsters included bins for recycling and scrap as well as trash. (VI RR 114-15).

The vehicle stopped in that area and a man exited, picked up a large metal wheel

rim, placed the rim in the car, and reentered the vehicle just before it drove off of

Hall’s lot.   (VI RR 50-52).      The employee notified his manager and they

determined that the rim had been taken. (VI RR 53-54). Minutes later, Appellant,

Mr. Daniel Knod, sold what was identified as the same rim to a scrap yard just



                                           2	  
down from Hall. (VI RR 72-74). When law enforcement later learned of this, they

prepared a warrant and eventually arrested Mr. Knod for the offense of theft of the

rim. (VI RR 139).

      To the charge for which he was ultimately indicted, felony theft, Mr. Knod

entered a plea of “not guilty” and proceed to trial by jury. (I CR 2, 72). After the

jury found him to be guilty he asked the trial court to impose punishment. (I CR

72). Based on his criminal history the range of punishment was enhanced to that

of a second degree felony and the trial court imposed punishment at the high-end

of that range; eighteen years’ confinement. (I CR 72). Sentence was pronounced

on 27 May and notice of appeal then timely filed. (I CR 69, 72).

                       SUMMARY OF THE ARGUMENT

      A defendant in a criminal case has the right to have the jury instructed to the

law applicable to the case including any defensive issues.          Thus, where the

evidence before the court raises the possibility that a mistake of fact negates the

culpable mental state for the offense charged and the defendant timely requests

such an instruction, a trial court errs in refusing to include it in its charge to the

jury. Further, where that omission harms a defendant, an appellate court should

reverse the judgment of the trial court and remand the case for a new trial.




                                          3	  
                                  ARGUMENT

   I.      THE TRIAL COURT ERRED IN DENYING A TIMELY
           REQUESTED JURY INSTRUCTION AS TO THE DEFENSE
           OF MISTAKE OF FACT.

        Standard of Review

        An appellate court’s review of alleged jury charge error is a two-step

process. Ochoa v. State, 119 S.W.3d 825, 828-29 (Tex.App.—San Antonio 2003,

no pet.). Initially, a court must determine if the complained of error does, in fact,

constitute error. TEX. CODE CRIM. PROC. ANN. art. 36.19 (Vernon 2009); Ochoa,

119 S.W.3d at 828. If so, the court then determines whether the error resulted in

harm sufficient to warrant a reversal. Ochoa, 119 S.W.3d at 828. If the error in

the charge was brought to the trial court’s attention by way of a timely objection,

reversal is required if the appellant can show the lesser standard of “some harm.”

Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App. 2000); Almanza v. State, 686

S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh’g). Whether harm resulted is

determined by reviewing the record as a whole. Almanza, 686 S.W.2d at 171.

        Applicable Statutes

        In this case Mr. Knod was charged with the offense of theft. (I CR 2).

Under Section 31.03 of the Texas Penal Code, a person commits the offense of

theft if they “unlawfully appropriate[] property with intent to deprive the owner of

property.” TEX. PEN. CODE § 31.03(a). Appropriation is unlawful if it is done



                                         4	  
without the owner’s consent. TEX. PEN. CODE § 31.03(b). To this, and other

offenses, there exists a statutory defense of “mistake of fact” where such mistake

affects the actor’s “culpable mental state regarding commission of the offense

charged.”                         TEX. PEN. CODE § 8.02; 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).1

                 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. Mendoza v. State, 88 S.W.3d 236, 239 (Tex.Crim.App. 2002). This is

true regardless of whether the evidence is weak or strong, unimpeached or

contradicted, and regardless of what the trial court may think about he credibility

of the defense. Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996).

                 Thus, within the context of a mistake of fact defense, the only issue before

the court at trial is whether there is some evidence, if believed, that raises the

defense by negating the defendant’s culpable mental state. Murchison v. State, 93

S.W.3d 239, 252 (Tex.App.—Houston [14th Dist.] 2002, pet. ref’d). Neither the

trial court nor an appellate court passes judgment on whether the defendant’s

mistaken belief was reasonable.                                                                             Granger v. State, 3 S.W.3d 36, 39


	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
           Section 8.02 provides: “It is a defense to prosecution that the actor thorough 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. PEN. CODE § 8.02(a).

                                                                                                              5	  
(Tex.Crim.App. 1999). Rather, if there is some evidence at all, the issue must be

submitted to the jury for them to resolve that question. Id.; Mendoza, 88 S.W.3d at

239; see also Woodfox v. State, 742 S.W.2d 408, 410 (Tex.Crim.App. 1987)

(“When a judge refuses to give an instruction on a defensive issue because the

evidence supporting it is weak or unbelievable, he effectively substitutes his

judgment on the weight of the evidence for that of the jury.”).

      Applying This Law to The Instant Case

      Because Mr. Knod was charged with the offense of theft, the State was

required to prove that he took the allegedly stolen property, the rim, with the intent

to deprive the owner of that property. TEX. PEN. CODE § 31.03. The intent to

deprive the owner of the property is the culpable mental state. Id. Thus, if Mr.

Knod did not intent to deprive the owner of the rim, there was no theft. Id.;

Granger, 3 S.W.3d at 41; Murchison, 93 S.W.3d at 252.

      In support of the idea that Mr. Knod was not acting with any intent to

deprive the owner of the rim of that property, important evidence was developed at

trial. For example, there was testimony from multiple witnesses that the rim was

located in a trash / recycling area near a dumpster where one could conclude that it

had been abandoned.       See Jordan v. State, 107 Tex.Crim. 414, 296 S.W. 585

(1927) (abandoned property cannot be the subject of theft); (VI RR 67-68, 11).

      Mr. Knod: Now … in Exhibit Number 8 there’s a fenced area. And
      inside that little fenced area there’s a dumpster?

                                          6	  
      Witness: Yes, sir

      …

      Mr. Knod: [A]ctually, [there are] two or three more dumpsters …
      correct?

      Witness: Yes, sir.

      …

      Mr. Knod: Other than maybe the dumpster with – which designates
      it’s for cardboard – the blue one on the right side. There’s nothing
      saying to anyone, other than employees of Hall, that these materials
      are being held for recycling, is there?

      Witness: There’s no bin there –

      Mr. Knod: Well, there’s nothing that says any of these materials are
      being held for recycling by Hall GMC?

      Witness: No, sir.

      Mr. Knod: Not a sign that says “recycling area” or anything like that?

      Witness: No, sir.

      Mr. Knod: In fact, the most common thing you put in dumpsters is
      trash, correct?

      Witness: Yes, sir.

(VI RR 67-68).

      Mr. Knod went on to develop evidence that the rim was located near an

actual trash dumpster and piles of trash-like materials such as broken pallets. (VI

RR 68, 114-15). Moreover, Mr. Knod established that the dumpster area from



                                        7	  
which the rim was taken, while in a gated area, was not secured. (VI RR 116). In

fact, the gates were open and there was nothing indicating that the area was for

employees only or subject to a “no trespassing” restriction. (Id.).




                                          8	  
                                                      As State’s Exhibits 8, 9, and 102 make obvious to any viewer, the rim taken

in this case was taken from an area one could reasonable assume contained

abandoned and discarded rubbish; or, in the parlance of Section 31.03, property

that could not be the subject of a theft offense. Ingram v. State, 261 S.W.3d 749,

753 (Tex.App.—Tyler 2008, no pet.) (“[I]t is possible to take possession of

abandoned property without committing a theft or intending to commit a theft.”).

                                                      In addition to this evidence, Mr. Knod also argued that his behavior in

selling the rim, during which transaction he was on camera and surrendered a copy

of his driver’s license complete with identifying information, further showed that

he believed he had a right to do what he was doing and was not acting in the

deceitful or secretive manner one might expect from a person in knowing

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
2
           (IX RR 26-31).

                                                                                                                                                                                                                                   9	  
possession of stolen property. (VI RR 79-80, 84-86, 94-97).

                 Based on the totality of this argument, Mr. Knod sought to argue to the jury

that he should be acquitted because he did not intend to unlawfully deprive anyone

of the rim. (VI RR 162-65).

                 The Requested Instruction

                 Although we now know that the owner of the rim did not intend to abandon

it, because there was some evidence indicating that the rim had been abandoned

and that Mr. Knod was acting in a manner consistent with someone who had found

property rather than stolen it, Mr. Knod sought a mistake of fact instruction. (VI

RR 173-74, 175-76). Specifically, the requested charge read:

                 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.

(I CR Supp.).3 The trial court, however, denied the charge. (VII RR 10-11).

                 In part, the court denied the charge based on this Court’s holding in Ingram,

261 S.W.3d 749 (Tex.App.—Tyler 2008). The trial court understood Ingram to

say, in order for a defendant to be entitled to a mistake of fact defense in similar

circumstances, there must be some testimony that the property taken was actually

“abandoned or trash or otherwise.” (VII RR 8). This, however, is not what the
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
3
           Although the order denying the requested charge was included in the initial Clerk’s Record, the
requested charge itself was not. (I CR gen.). Counsel has today filed a request with the Smith
County District Clerk to create a supplemental record that includes the document filed by Mr.
Knod in which the request for this language was made. A copy of the requested charge is
attached to this brief as “Appendix A.”

                                                                                                             10	  
Court held in Ingram. Id. at 754. Rather, the Court in that case focused its

analysis on the fact that under Texas law one cannot abandon real property. Id. at

753-54. Thus, because the defendant in Ingram had committed a burglary of a

habitation, even if the property owner had abandoned the personal property inside

the home, the person who held title to the real property in which the personal

property was located had a greater possessory interest in the personal property

taken than did the defendant.     Id. at 754.    “Consequently, even if Appellant

believed the personal property to be abandoned, his mistake was a mistake of law,

not a mistake of fact – Appellant intended to take the personal property for himself

from the real property of another; he just did not know such a taking was illegal.”

Id.

      Nowhere does Ingram impose a requirement that there be some evidence

that property was actually abandoned before a defendant is entitled to a mistake of

fact instruction under circumstances like those currently before the Court. To have

such a requirement would, first, make mistake of fact in applicable for if the owner

of property were to testify that he had abandoned property allegedly stolen from

him there could be no offense.       TEX. PEN. CODE § 31.03.       Second, such a

requirement would ignore the rationale behind a mistake of fact defense that

protects an actor who commits an offense with no intent to do so but merely

because he fails to understand the facts of a situation as they actually are. See



                                        11	  
Celis v. State, 416 S.W.3d 419, 451-52 (Tex.Crim.App. 2013) (discussing purpose

behind mistake of fact defense and noting, “The law should not punish those who

have made reasonable mistakes about he facts or circumstances surrounding their

acts.”).

       Nonetheless, the trial court, which was the same court in which Ingram was

initially tried, took Ingram as “probably the most persuasive authority that I was

able to find,” and largely on that basis denied Mr. Knod’s requested charge. (VII

RR 10-11).

       Mr. Knod was Entitled to the Instruction

       Because there was some evidence, the fact that the rim was located amidst a

group of dumpsters with trash, scrap, and recycling, Mr. Knod’s innocent behavior

when selling the rim, for example, that if believed supported a mistake of fact

defense, the trial court should have given the requested instruction. Hamel, 916

S.W.2d at 493.     Appellant will concede that, ultimately, the jury could have

decided with the view taken by the State and the trial court that the evidence

supporting the defense was too weak or the conclusion too far-fetched to be

resolved in Mr. Knod’s favor, but he nonetheless had the right to have that issue

resolved not by the judge but by the jury. Sands v. State, 64 S.W.3d 488, 494

(Tex.App.—Texarkana 2001, no pet.); see also Durden v. State, 290 S.W.3d 413,

419 (Tex.App.—Texarkana 2009, no pet.) (That the evidence supporting mistake



                                        12	  
of fact defense “might have been seen by the trial court or the jury as feeble,

contradicted, impeached, or incredible” does not undermine a defendant’s

“entitlement to a defensive instruction.”). Where the trial court deprived him of

that right, and deprived the jury of that opportunity, the court erred and this Court

should hold that Mr. Knod was entitled to his requested mistake of fact instruction.

See, e.g., Bang v. State, 815 S.W.2d 838, 842 (Tex.App.—Corpus Christ 1991, no

pet.) (citing Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App. 1991) (“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.’”).

      The Trial Court’s Denial of the Instruction Harmed Mr. Knod

      Because the trial court erred in failing to give the requested instruction, the

Court must determine whether that error harmed Mr. Knod. Almanza, 686 S.W.2d

at 171. As there was a timely request for the instruction to be given, the standard is

whether there was “some harm,” that is, “any harm.” Id.; TEX. CODE CRIM. PROC.

art. 36.19; see also Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986)

(“some” and “any” are synonyms when determining the amount of scrutiny to be

applied).

      Here, the jury was instructed that Mr. Knod could only be found guilty if the

jury concluded that he had appropriated property “with the intent to deprive the




                                           13	  
owner of the property….” (I CR Supp. (Jury Charge at Paragraph 7)).4 The Sixth

Court of Appeals has held that such an instruction mitigates against a finding of

harm:

                 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.

Durden, 290 S.W.3d at 421.

                 However, Appellant would urge the Court to consider Justice Mosely’s

informative dissent in that case. Id. Unlike the majority, which saw the thread of

mistake of fact as a defense running throughout the entire trial and concluded, for

that reason, that no harm resulted in the denial of the requested instruction, Justice

Mosely saw the opposite. Id. at 422-23.

                 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 ben mounted. [The defendant]
                 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
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
4
           As part of the aforementioned supplemental record request, Mr. Knod has also asked the
District Clerk to forward to the Court the missing jury charge. A copy of the same is attached as
“Appendix B.”

                                                                                                             14	  
      mistake of fact was a valid defense.

Id. at 423.

      The harm about which Justice Mosely was concerned is also evident in the

case before the Court. From the first witness through the last Mr. Knod attempted

to establish that there was a legitimate and reasonable basis from which one could

conclude that Hall GMC had abandoned and discarded the rim that was taken in

this case and, as such, that if Mr. Knod was guilty of anything it was only of

having made an honest mistake about the circumstances surrounding the rim being

placed among a group of dumpsters, bins, and trash piles. While we do not know

whether the jury would have we do know, as Justice Mosely writes, that having the

judge tell the jury that the argued defense has legal validity as a concept is far

weightier and more effective than the same argument coming from defense

counsel. Id. at 423 (the charge from the court would have added “additional

emphasis [on the defendant’s] sole defense to the charge). This is particularly true

where, as here, closing argument began with the State attempting to discredit not

only any defense raised by Mr. Knod, but also by explicitly attempting to discredit

Mr. Knod’s defense counsel:

      [I]n a criminal case both sides are not seeking the same thing. And
      that’s why, while [defense counsel] and I practice both [sic] criminal
      law, his job and my job are startlingly different.




                                        15	  
      I mention that, at this point, because you know, my oath as a
      prosecutor is to seek justice in any particular case, not necessarily just
      get a conviction at all costs. It’s to seek justice. [Defense counsel’s]
      obligation is to his client. So unlike [defense counsel], I’m not bound
      and I’m not influenced by the nonsensical whims of a criminal.

(VII RR 20).

      The San Antonio Court of Appeals recognized just this type of harm in

Green v. State where that Court reversed a theft conviction where trial counsel

failed to request a mistake of fact instruction where appropriate. Green v. State,

899 S.W.2d 245 (Tex.App.—San Antonio 1995, no pet.). Relying on the Court of

Criminal Appeals’ holding in Beggs v. State, 597 S.W.2d 375 (Tex.Crim.App.

1980), the Court noted:

      The failure of the charge to apply the law to the facts is calculated to
      injury the rights of the defendant to a trial by jury; it deprives him of a
      neutral and unbiased application of the law, leaving that function to
      the partisan advocacy of opposing counsel in argument.

Green, 899 S.W.2d at 245 (quoting Beggs, 597 S.W.2d at 379 ) (internal citations

omitted).

      Because as a result of the trial court’s denial of his requested mistake of fact

instruction Mr. Knod was denied his right to have the correct law correctly applied

to the facts of his case and to have all issues of fact resolved by the jury, the Court

should hold, regardless of any other language in the charge, that Mr. Knod was

harmed by the trial court’s error. To hold otherwise “would be to strike Section

8.02 from the Penal Code.”            Jackson v. State, 646 S.W.2d 225, 225

                                          16	  
(Tex.Crim.App. 1983) (en banc).         Consequently the Court should reverse the

judgment of the trial court and remand the case for a new trial.

                           CONCLUSION AND PRAYER

      Given that Mr. Knod suffered some harm as the result of the trial court’s

refusal to include the requested jury instruction regarding mistake of fact, a request

to which he was entitled, it is respectfully prayed that the Court reverse the

judgment below and remand the case for a new trial.

                                                    Respectfully submitted,

                                                    /s/ Austin Reeve Jackson
                                                    Texas Bar No. 24046139
                                                    112 East Line, Suite 310
                                                    Tyler, TX 75702
                                                    Telephone: (903) 595-6070
                                                    Facsimile: (866) 387-0152


                           CERTIFICATE OF SERVICE

      I certify that a true and correct copy of this brief was delivered to counsel for

the State by efile / facsimile concurrently with its filing in the Court.

                                                    /s/Austin Reeve Jackson


                       CERTIFICATE OF COMPLIANCE

      I certify that this document complies with the requirements of Rule 9.4 and

consists of 3,721 words.

                                                    /s/ Austin Reeve Jackson

                                           17	  
                         Appendix A


       Defendant’s Requested Mistake of Fact Instruction
	  




	                            18
                                                                             FILED
                                                                         LOIS ROGERS
                                                                        DISTRICT CLERK
                                        NO. 007-0010-15
                                                                       ,201S APR '5 PH 6: J2
STATE OF TEXAS                               §              IN THE DISTRICT COURT
                                             §                     ~M1TH COUNTY, TEXAS
v.                                           §              SMITH ~UNTY, TEXAS
                                             §                                DEPUlY
DANIELKNOD                                   §              7TH JUDICIAL DISTRICT

                                   REQUESTED CHARGE

TO THE HONORABLE JUDGE OF SAID COURT:

        Comes now, DANIEL KNOD, by and through his attorney of record, and requests

that part of the court's charge includes the issue of § 8.02 Mistake of Fact, and should read as

follows:

       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.                    .

       Now, if you believe based on the evidence before you that Daniel Knod could have

believed that the item that was eventually sold was abandoned property or in other words,

trash, then you are to acquit the Defendant of the offense of theft.

                                                    Respectfully submitted,

                                                    KURT M. NOELL
                                                    231 S. College
                                                    Tyler, Texas 75702
                                                    Telephone: (903) 59 -9069
                                                    Telefa : ( 03) 59   50

                                                    BY: ~~~--~~~~---------



                                                    ATTORNEY FOR DEFENDANT




REQUESTED CHARGE                                                                        PAGE 1
              Appendix B


       Charge of the Court to Jury
	  




	                 20
· '"\


                                       c                                          ~lLED
                                                                              LOtS R.OGERS
                                                                             DISTRICT CLERK
                                             CAUSE NO. 007·0010·15
                                                                             2015 APR ,6 N1    a: ,9
        THE STATE QFTEXAS
                                                                       IN ~~ ~lMfu~lIAL
                                                          §
                                                          §
        vs.                                               §            DISTIWii{ UJ~ OJ<'
                                                          §
        DANIEL LEE KNOD                                   §            SMITH       COUNTY,         TEXAS

                                         CHARGE OF THE COURT
        LADIES AND GENTLEMEN OF THE JURY:

                 The Defendant, DANIEL LEE KNOD, stands charged by Indictment with the offense of

        Theft, alleged to have been committed on or about December 8 72014, in Smith CountY7 Texas. To

        the allegations contained in the Indictment, the Defendant has pleaded "Not Guilty," and to the

        enhancement paragraph alleging the Defendant has been twice convicted previously of a theft

        offense, the Defendant has pleaded "Not True."

                                                          1.

                 Our law provides that a person commits the felony offense of Theft if he unlawfully

        appropriates property with intent to deprive the owner of such property and the va1ue of the property

        is less lhan $1500 and when said person has been previously convicted two times of any grade of

        theft.
                                                                                                                 !
                                                                                                                 f
                                                                                                                 !
                                                                                                                 (

                                                                                                                 i
                                                          2.

                 "Appropriate" as used herein, means to acquire or otherwise exercise control over property

        other than real property. Appropriation of property is unlawful if it is without the owner's effective   I
        consent.

                 "Property" means tangible or intangible personal property, including money, that represents
                                                                                                                 I
        or embodies anything of value.                                                                           I

                 "Deprive" as used herein, means to withhold property from the owner permanently or for so       I
                                                                                                                 t
                                                                                                                 i
                                                                                                                 ~
                                                         -1-                                                     f
                                                                                                                 ~

                                                                                                                 t
        You are instructed that the statute of limitation for the offense of theft is five (5) years prior

to the return of the Indictment which occurred on January 8, 2015.

                                                   5.

        With respect to the evidence, if any, admitted in this case concerning the defendant's having

been at least two times previously convicted of the offense of theft, if he was, you are instructed that

such evidence cannot be considered by you as in any manner proving or tending to prove that the

defendant committed a theft, if he did, on or about the 8th day of December, 2014.

                                                   6.

        A person i~ criminally r~sponsible as a party to an offense if the offense is committed by his

own conduct, by the conduct of another for which he is criminally responsible, or both.

        Each party to an offense may be charged with the commission of the offense.

       A person is criminally responsible for an offense committed by the conduct of another if,

acting with intent to promote or a~sist the commission of the offense, he solicits, encourages, directs,

aids, or attempts to aid the other person to commit the       offen~e.   Mere presence alone will not

constitute one a party to an offense.

                                                   7.

       Now if you unanimously find from the evidtmce beyond a reasonable doubt that on or about

the 8th day of December, 2014, in Smith County, Texas, the Defendant, DANIEL LEE KNOD, did

then and there unlawfully appropriate, by acquiring or otherwise exercising control over property,

to-wit: a tire rim, of the value of less than $1,500, from Dean Cafourek, the owner thereof, without

the effective consent of the owner, and with intent to deprive the owner of the property, AND you

further find from the evidence beyond a reasonable doubt that the Defendant, previously thereto, had

been twice convicted of the offense of theft, to-wit:


                                                  -3-
                                o
        (1)      On the 16th day of May, 2013, in Cause Number F-1235548-R in the 265 1h Judicial

District Court of Dallas County, Texas, the Defendant was convicted of the offense of theft, and said

conviction became final prior to the commission of the aforesaid offense; and

        (2)      On the 15th day of April, 1997, in the Cause Number 96-0928CC in the County

Court at Law of Henderson County, Texas, the Defendant was convicted of the offense of theft, and

said conviction became final prior to the commission of the aforesaid offense;

        as alleged in the Indictment, then you will .find the Defendant guilty of the felony offense of

Theft, as alleged in the Indictment.

        Unless yOll so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you

will acquit the Defendant of Felony Theft and say by your verdict "Not Guilty."

                                                   8.

        You are instructed that the value of personal property is the fair-market value of the property

at the time and place of the offense. The fair-market value is the amount of money the property in

question would sell for in cash given a reasonable time for selling it.

                                                   9.

        OUf   law provides that a defendant may testify in his own behalf if he elects to do so. This,

however, is a privilege afforded a defendant, and in the event he elects not to testify, that fact cannot

be taken as a circumstance against him. The Defendant has elected not to testify, and you are

instructed that you cannot and must not refer to or all ude to that fact throughout your deliberations

or take it into consideration for any purpose whatsoever as a circumstance against the Defendant.

                                                  10.

        You are instructed that you are not to allow yourselves to be influenced hy any degree

whatsoever by what you may think or surmise the opinion of the Court to be. The Court has no right



                                                  -4-
by any word or any act to indicate any opinion respecting any matter of fact involved in this case,

nor to indicate any desire respecting its outcome. The Court has not intended to express any opinion

upon any matter of fact in this case, and if you have observed anything which you may interpret or

have interpreted as the Court's opinion upon any matter of fact in this case, you must wholly

disregard it.

         You are instructed that any statements of counsel, made during the course of the trial or

during argument, not supported by the evidence, or statements of law made by counsel not in

harmony with the law as stated to you by the Court in these instructions, are to be wholly

disre garded.

        You are further instructed that an Indictment is no evidence of guilt. Therefore, you are

instructed in this cause that the Indictment herein shall not be considered by the Jury as evidence of

guilt, if any.

                                                 11.

        All persons are presumed to be innocent and no person may be convicted of an offense unless

each clement of the offense is proved beyond a reasonable doubt. The fact that a person has been

arrested, confined, or indicted for, or othelWise charged with, the offense gives rise to no inference

of guilt at his or her trial. The law does not require a defendant to prove his or her innocence or

produce any evidence at all. The presumption of innocence alone is sufficient to acquit the

defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after

careful and impartial consideration of all the evidence in the casco

        The prosecution has the burden of proving the Defendant guilty and it must do so by proving

each and every element of the offe"se charged beyond a reasonable doubt and if it fails to do so, you

must acquit the Defendant.


                                                 -5-
         It is not required that the prosecution prove guilt beyond all possible doubt; it is required that

the prosecution's proof excludes all "reasonable doubt" concerning the Defendant's guilt.

         In the event you have a reasonable doubt as to the Defendant's guilt after considering all the

evidence before you, and these instructions, you will acquit him and say by your verdjct "Not

Guilty."

                                                    12.

         You are instructed that if there is any evidence before you in this case alleging that Defendant

committed an offense other than the offense alleged against him in the Indictment in this casc, you

cannot consider said evidence, if any, for any purpose unless you find and believe beyond a

reasonable doubt that the Defendant committed such other offense~ if any were committed, and even

then you may only consider the same in detennining intent or motive or the absence of mistake in

connection with the offense, if any, allegcd against the Defendant in the Indictment in this casc, and

for no other purpose.

         The prosecution has the burden of proving the Defendant guilty of extraneous offenses, if

any, and it must do so by proving each and every element of sllch offense beyond a reasonable doubt,

and   jf it fails to do so you must not consider such extraneous offense,   if any. In the event you havc

a reasonable doubt as to the Defendant's guilt of any extraneous offense after considering all the

evidence before you, and these instructions, you must not consider evidence of an extraneous offense

for any purpose whatsoever in arriving at your verdict.

                                                   13.

         You are charged that it is only from the witness stand that the Jury is permitted to receive

evidence regarding the case, and no juror is permitted to communicate to any other juror anything



                                                   -6-
that he or she may have heard regarding the case from any source other than the witness stand.

                                                   14.

        In deliberating on this case you are not to refer to or discuss any matter not in evidence before

you nor talk about this case to anyone not of your Jury.

        You arc the exclusive judges of the facts proved, of the credibility of the witnesses and of

the weight to be given to the testimony, but you are bound to receive the law from the Court, which

is herein given you, and be governed thereby.

                                                   15.

        You must not be influenced in any degree whatsoever by any personal feelings of sympathy

for, or prejudice against, the State or the defendant in this case, for each is entitled to the same fair

and impartial consideration.

                                                  16.

        The issue of punishment is not before you, and you ~hould confine your deliberations to the

innocence or guilt of the Defendant.

                                                  17.

       After you have retired to consider your verdict, no one has any authority to communicate with

you except the officer who has you in charge. You may communicate with this Court in writing,

signed by your Presiding Juror, through the officer who has you in charge. Do not attempt to talk

to the officer, the attorney~, or the Court concerning any questions you may have.

                                                  18.

       After argument of counsel, you will retire and select one of your members as your Presiding

Juror. It is the duty of your Presiding Juror to preside at your deliberations and to vote with you in



                                                  -7-
arriving at a verdict. Your verdict must be UNANIMOUS, and after you have arrived at your

verdict, you may use one of the forms attached hereto by having your Presiding Juror sign the

particular form that conforms to your verdict.




                                                 -8-
