                             NUMBER 13-10-00555-CR

                                COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


WILLIAM JOSEPH LEE,                                                           Appellant,

                                             v.

THE STATE OF TEXAS,                                                             Appellee.


                    On appeal from the 221st District Court
                        of Montgomery County, Texas.


                             MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Garza
               Memorandum Opinion by Chief Justice Valdez
       Appellant, William Joseph Lee, appeals his conviction of failure to register as a

sex offender. See TEX. CODE CRIM. PROC. ANN. arts. 62.051 (West Supp. 2011), 62.102

(West 2006). Lee was sentenced to life imprisonment. By eight issues, which we have

regrouped and renumbered, Lee contends that: (1) the evidence was legally insufficient

to show that he failed to register as a sex offender; (2) the trial court erred by failing to
provide a mistake of fact jury instruction; (3) the trial court failed to “charge the [j]ury, as

requested, on the [p]rovisions of [a]rticle 63.051(a) and (f)”; (4) the trial court erred by

overruling his objection to evidence “concerning [his] personality as evidence of guilt”;

(5) he is entitled to a new punishment hearing because the evidence was insufficient to

show that a 1969 conviction was final; (6) the life sentence is illegal; (7) during the

punishment phase, the trial court erred by overruling his objection that the State’s

argument was improper; and (8) the charge on punishment was erroneous. We reverse
               1
and remand.

                                        I.      THE EVIDENCE

        Dana Wilson, the administrative technician with the Texas Department of

Criminal Justice, testified that although registration of sex offenders begins in prison, the

process is not completed until that person reports to the designated local law

enforcement agency upon release. Wilson stated that in this case, Lee began the

registration process with her on March 12, 2010.                 However, Lee was not officially

registered on that date. Wilson explained that State’s exhibit number 1 clearly states,

“Not later than the 7th day after 3-19-2010 (date of release/placement on community

supervision or juvenile probation), I [Lee] must personally appear at the following local

law enforcement authority to verify and complete my registration . . . .” State’s exhibit

number 1, entitled “Pre-release Notification Form Texas Sex Offender Registration

Program” and identified as a “CR-32” form, shows that Lee was required to register with

the Montgomery County Sheriff’s Office. This provision was initialed by Lee, and the

document was signed by Lee. When asked whether a person who does not appear at
        1
          This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).


                                                   2
the Montgomery County Sheriff’s Office has failed to verify or failed to register, Wilson

replied, “They have failed to register.”

       Melvin Wood, Lee’s parole officer, testified that Lee was provided a Certificate of

Parole which set out the general rules that parolees are required to follow. Wood stated

that State’s exhibit 4, the first page of the certificate, contained three of the special

conditions required of Lee. Wood explained that special condition “M” required Lee to

register as a sex offender pursuant to Chapter 62. Wood stated that Lee signed a

document on March 19, 2010, agreeing to register as a sex offender. Wood testified

that on March 22, 2010, he conducted a visual search of Lee’s residence, confirmed his

next meeting with Lee, and informed Lee that he was required to register as a sex

offender with Michelle Wallace of the Montgomery County Sheriff’s Office.

       According to Wood, at a meeting with Lee on April 3, 2010, he again informed

Lee that he needed to comply with the requirement and report as instructed to Wallace.

Wood testified that he was aware that Lee had scheduled a “registration appointment”

with Wallace for March 30, 2010.           However, Lee informed Wood that he had

rescheduled this appointment for April 8. Wood stated that at the April 3 meeting, Lee

confirmed that he had a registration appointment with Wallace on April 8, 2010. The

evidence also showed that Lee again rescheduled his appointment with Wallace for

April 13. After discovering that Lee had missed his rescheduled appointments, Wood

submitted a violation report requesting revocation of Lee’s parole. In the report, Wood

“alleged two rule 8x violations, failure to register, one being for the appointment on the

13th . . . as he had been directed to by [Wallace]. And then the second allegation in




                                             3
8M, failure to report on April 8th as he had been directed to by [Wallace].” Wood

testified that the next time he met Lee, Lee was arrested for failure to register.

       On cross-examination, Wood reiterated that special condition “M” required Lee to

register as a sex offender and that Lee “expressed every intention of complying with his

parole.” Wood clarified that Lee was arrested on April 23, 2010 in his office. According

to Wood, Lee had requested this meeting with Wood to inform Wood that he was taking

certain medications. A warrant had already been issued for Lee’s arrest; however,

Wood did not ask Lee why he had not appeared for his meeting with Wallace. Wood

acknowledged that Lee had attended all his scheduled appointments with him and his

appointment with his therapy group.

       On redirect examination, Wood stated that Lee lived in Conroe, located in

Montgomery County, Texas. Wood explained that Lee was required to register as a sex

offender with the Montgomery County Sheriff’s Department.

       Michelle Wallace testified that she is the registrar for the Montgomery County

Sheriff’s Office sex offender compliance unit. Wallace explained that she ensures “that

any and all sex offenders within the county register and report as required.” She then

places the “data onto the Texas Department of Public Safety website for other agencies,

citizens, general public, and victims to view.” Wallace testified that her duties include

ensuring “everybody is registered that is required to register as a sex offender within the

state of Texas, if they are living in Montgomery County.”           She stated that initial

registration “would be your first meeting. And then after that, you have verifications.”

       According to Wallace, on March 22, 2010, Wood informed her that Lee had been

released from prison and had been placed on his case load. On March 26, 2010, Lee



                                             4
contacted Wallace by phone, and they “discussed why he had waited until his seventh

day for his initial registration appointment and [they] went ahead and set up an

appointment.” Wallace stated that Lee informed her that he was aware that he had

seven days from his release from prison to register as a sex offender. Wallace testified

that they then set Lee’s initial registration appointment for March 30, 2010 at 1:00 p.m.

“That same day [Lee] then called back—[Lee] called back. And due to having another

appointment, we went ahead.         And he asked if he could cancel that specific

appointment and make a second appointment.”         According to Wallace, the second

appointment was set for April 8, 2010 at 8:30 a.m., and Lee was “a no-show” for that

appointment; however, later that day, he called to “confirm his 1:00 p.m. appointment for

that day.” Wallace stated that she told Lee “that he had already missed his appointment

that morning and was a no-show on it and we would need to set another, third

appointment.” Wallace affirmed that Lee was in violation of his duty to register on April

8, 2010.

      Wallace stated that a third appointment was set for April 13, 2010 at 2:30 p.m.

Wallace testified that she then contacted Wood and informed him that Lee had missed

his April 8 appointment and informed him of the new appointment date. According to

Wallace, on April 13, Lee “again was a no-show and did not bother to call for his initial

registration as a sex offender.” When asked if she may have mistakenly told Lee that

his third appointment was on May 13, 2010, Wallace replied, “No, ma’am” and claimed

she was “100 percent sure” she told Lee the appointment was on April 13 “[b]ecause on

the week of May 13th we had U.S. Marshals in our county doing compliance checks on

all of our sex offenders” in order to make sure the offenders are living at the residence



                                           5
they have reported. Lee was then arrested, and on May 25, 2010, he “was brought

from the jail to [Wallace’s] office . . . to complete his initial sex offender registration . . . .”

Wallace confirmed that after he was arrested, Lee completed the registration. Wallace

claimed that Lee was attempting to make excuses and blame her for his

noncompliance.

         On cross-examination, Wallace explained that when a “new” sexual offender

merely moves to Montgomery County from another county, “[i]t is considered a

verification stating that they moved into our county.” Wallace testified that once a sex

offender is released from prison, that person is required to report to her department for

an initial registration where information acquired at the prison is confirmed as accurate.2

         Tammy Sonsel, an employee with the “State of Texas, the prison system,”

testified on behalf of the defense. Sonsel stated that she has been “in classification of

records, field services” for “[a]t least eight years” and has worked for “TDC” for thirteen

years.       According to Sonsel, under “Chapter 62 [she] is required to notify law

enforcement—whenever he [the parolee] intends to reside to—that they are coming

within seven days.”

         Sonsel testified that on March 12, 2010, Lee signed paperwork, including “CR-32

and -35” forms. Sonsel explained that the CR-35 is “a sex offender verification and

registration.” The CR-35 included a “registration date” of March 12, 2010. Sonsel

stated that that information concerning Lee was sent to local law enforcement and that

he signed the required paperwork. When defense counsel asked Sonsel if Lee was

         2
           According to Wallace, her department waits to notify the local school district of a sex offender’s
residence until the initial registration is completed. Wallace explained that her department must be
provided proof that the offender is living at the address provided to the personnel at the prison before it
notifies the school district.


                                                     6
“registered” that day, she replied, “Yes.”     The CR-35 is then sent to the Texas

Department of Public Safety (the “DPS”).

      On cross-examination, the following exchange occurred:

      [The State]: Defense counsel has been focusing a lot on completing the
                   registration date. And clearly, from the questions to you, is
                   implying that the Defendant has registered on March 12th,
                   2010. And if you could, please, just read that sentence right
                   there to the jury.

      [Sonsel]:     “I must personally appear at the following local law
                    enforcement authority to verify and complete my
                    registration.”

      [The State]: So if a defendant—if a person is paroled and is required to
                   register as a sex offender, that process is started with you at
                   TDC, correct?

      [Sonsel]:     Yes, ma’am.

      [The State]: Is it complete with you?

      [Sonsel]:     No, ma’am.

      [The State]: When is it complete?

      [Sonsel]:     It is complete with law enforcement.

      [The State]: So if a sex offender does not register with a local law
                   enforcement agency, is he technically registered?

      [Sonsel]:     No.

      Lee testified that he is seventy-six years old and had been incarcerated in the

Texas Department of Criminal Justice for approximately twenty-seven years. Lee was

released from prison on March 19, 2010. According to Lee, before he was released

from prison, he was transferred to the “Goree Unit” in the “Huntsville area,” and he was

registered as a sex offender. Lee stated that on the afternoon he was released from

prison, he met with Wood, his parole officer. When asked about Wood’s explanation of

                                           7
the sex offender registration requirements, Lee responded, “He said counseling. He

said polygraphs. He said urinalysis. And he did—he did say verification, eventual

verification.” Lee stated that Wood told him to contact Wallace on Monday morning and

that Wallace required Lee to get an identification card containing his address before

meeting with him. According to Lee, he contacted Wallace on Monday morning, March

22, 2010, and she told him he needed to acquire his ID card before she would be able

to meet with him and that he attempted to acquire his ID card. Lee testified that during

this time, he was also making and attending doctors’ appointments because he has

“advanced inoperable cancer” and Hepatitis C.

      Lee stated that he left a voicemail message for Wallace on March 26, 2010

informing her that he had passed the written test for his driver’s license and that the

receipt had his address. When Lee called Wallace back an hour later, she told him to

report to her on March 30, 2010 at 1:30. Lee testified that he later realized that he had

his initial screening at Michael E. DeBakey Veterans Hospital on that date. Lee then

called Wallace again to reschedule his appointment; he requested the appointment date

of March 29. Lee stated that he also told Wallace that he would be driving to Houston

for his doctor’s appointment and that he did not have a “blue card”—a certification that

he had registered as a sex offender. Lee explained that a sex offender is required to

present the blue card when he comes in contact with law enforcement officers. Lee was

concerned about not having a blue card because “you go to jail if you don’t.” According

to Lee, Wallace would not reschedule the appointment for March 29, and told Lee that if

a police officer stopped him, Lee should tell the officer to call her. Wallace rescheduled




                                            8
his appointment for April 8, 2010.       Lee testified that although he was sure his

appointment was at 1:00, it is possible he was mistaken.

       Lee stated that he contacted Wood about the rescheduled appointment with

Wallace and that Wood informed him that he was in violation of his parole. Lee testified

that he told Wood that he tried to comply but that Wallace would not meet with him. Lee

claimed he then called Wallace on April 6 and “appealed to her if I could come in and

verify because [Wood] had threatened to violate my parole—”             According to Lee,

Wallace refused to reschedule his appointment, and it was still set for April 8.

       Lee testified that on April 8 at 9:00 a.m., he called Wallace to confirm his 1:00

appointment with her. Wallace informed Lee that he had missed his appointment which

had been set for 8:30 a.m. that day. Lee stated that he “then appealed to her: Please,

well, let me come right now. . . . And [Wallace] said: No. I am in and out, and I am

busy.” Wallace then rescheduled Lee’s appointment. Lee stated that he believed that

his new appointment was for May 13, 2010.            Lee testified that he had medical

appointments on May 13, so he called Wallace back and “appealed to her, ‘Please let

me come in because I have two more appointments that is in conflict.’” According to

Lee, Wallace advised him to cancel or reschedule his medical appointments.           Lee

claimed that he immediately called Wood to discuss his dilemma and that Wood told

him he needed to comply with Wallace’s requirements. Lee stated that he then called

the hospital and rescheduled his medical appointment for May 17, 2010. Lee was

arrested on April 23 in Wood’s office.

       When the State asked if Lee agreed that he was “supposed to register in

Montgomery County,” Lee replied, “No, I do not agree to that.          I agree that I was



                                             9
supposed—I registered at TDCJ and that they told me that I needed then to verify my

registration.” The State showed Lee State’s exhibit 1, the CR-32 form and asked him to

read the following: “Complete my registration.” Lee agreed that he has a conviction

requiring him to register as a sex offender and that he must do so annually for the rest

of his life. However, Lee denied that he is required to register in Montgomery County

and claimed he is merely required to “verify.”

                                     II.     LEGAL SUFFICIENCY

        By his first issue, Lee contends that the evidence is legally insufficient to support

the conviction for failure to register as a sex offender. Specifically, Lee argues that

there was no evidence that he failed to register as a sex offender because the evidence

merely established that he failed to verify his registration. Lee alleges that under article

62.051, registration is accomplished in the penitentiary prior to release on parole and

that the evidence showed he had completed his registration while still incarcerated.3

A.      Standard of Review and Applicable Law

        In a sufficiency review, we examine the evidence in the light most favorable to

the verdict to determine whether any rational fact-finder could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979); see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010). The

fact-finder is the exclusive judge of the facts, the credibility of witnesses, and of the




        3
          Lee neither claims that the evidence was insufficient to prove that he acted intentionally,
knowingly, or recklessly nor provides clear and concise argument with citation to appropriate authority to
support such a claim. Accordingly, we do not address this issue. See TEX. R. APP. P. 38.1(i).
Furthermore, evidence was presented that Lee was informed that in order to complete the registration
process, he was required to register with local law enforcement upon his release. This evidence supports
a conclusion that Lee intentionally failed to register with Montgomery County officials.


                                                   10
weight to be given testimony.     Brooks, 323 S.W.3d at 899. We must resolve any

evidentiary inconsistencies in favor of the judgment. Id.

       We measure the legal sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)). A person commits the offense of failure to comply with

registration requirements if the person “is required to register and fails to comply with

any requirement” of chapter 62. TEX. CODE CRIM. PROC. ANN. art. 62.102 (West 2006).

       Under chapter 62

              [a] person who has a reportable conviction or adjudication or who is
       required to register as a condition of parole, release to mandatory
       supervision, or community supervision shall register or, if the person is a
       person for whom registration is completed under this chapter, verify
       registration as provided by Subsection (f), with the local law enforcement
       authority in any municipality where the person resides or intends to reside
       for more than seven days. If the person does not reside or intend to
       reside in a municipality, the person shall register or verify registration in
       any county where the person resides or intends to reside for more than
       seven days. The person shall satisfy the requirements of this subsection
       not later than the later of:

              (1)    the seventh day after the person’s arrival in the municipality
                     or county; or

              (2)   the first date the local law enforcement authority of the
                    municipality or county by policy allows the person to register
                    or verify registration, as applicable.

Id. art. 62.051(a). Therefore, under a hypothetically correct jury charge, the State had

to prove beyond a reasonable doubt that Lee was required to comply with the

registration requirements of chapter 62 of the code of criminal procedure, i.e., he was a

sex offender, and that he intentionally, knowingly, or recklessly failed to report to local

law enforcement within the allotted time. See id. art. 62.051(a); TEX. PENAL CODE ANN. §

                                            11
6.02(b)–(c) (West 2011) (establishing that if an offense “does not prescribe a culpable

mental state, a culpable mental state is nevertheless required unless the definition

plainly dispenses with any mental element” and that “intent, knowledge, or recklessness

suffices to establish criminal responsibility”).

       Lee first argues that there was no evidence that he failed to register and the

evidence merely showed that he failed to verify his registration.       However, Wilson

testified registration of sex offenders begins in prison, but the process is not completed

until that offender reports to the designated local law enforcement agency. Wilson

stated that although Lee began the registration process with her on March 12, 2010,

Lee was not officially registered on that date. State’s exhibit 1, the CR-35 form, clearly

states that the sex offender, Lee, must “complete” the registration process with the

Montgomery County Sheriff’s Office. Lee’s witness, Sonsel, affirmed that registration is

not completed in prison and only completed once the sex offender reports to local law

enforcement.     And when asked if a person who has not registered with local law

enforcement has technically registered as a sex offender, Sonsel replied “no.”

       Chapter 62 requires the sex offender to register with the local law enforcement

authority in any municipality where the person resides or intends to reside for more than

seven days unless that person has completed the registration process. See TEX. CODE

CRIM. PROC. ANN. art. 62.051(a).         Here, the evidence showed that Lee had not

completed the registration process and was, thus, required to register with the local law

enforcement authority. The evidence showed that he did not do so. Therefore, viewing

the evidence in the light most favorable to the verdict, we conclude that a rational fact-

finder could have found beyond a reasonable doubt that Lee failed to register as a sex



                                              12
offender as opposed to merely failing to verify his registration. See Jackson, 443 U.S.

at 319; see also Brooks, 323 S.W.3d at 898–99. We overrule Lee’s first issue.

                            III.   MISTAKE OF FACT

      By his second issue, Lee contends that the trial court erred by not including his

requested mistake of fact instruction in the jury charge and that he suffered some harm

from this error. Specifically, Lee argues that there was evidence presented that he

reasonably believed that his registration appointment was on May 13, 2010. Lee further

argues that he was harmed by this error.

A.    Applicable Law and Standard of Review

      “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

defense.” Madrigal v. State, 347 S.W.3d 809, 817 (Tex. App.—Corpus Christi 2011,

pet. ref’d) (quoting Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996)). The

trial court must submit a defensive theory to the jury if the evidence raises it and a

charge is properly requested. Id. We view the evidence in the light most favorable to

the defense when determining whether a defensive theory has been raised. Granger v.

State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999).

      A defendant is entitled to a mistake of fact instruction when there is evidence that

he mistakenly “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.” TEX. PENAL

CODE ANN. § 8.02 (West 2011); Granger, 3 S.W.3d at 41 (citing Miller v. State, 815

S.W.2d 582, 585 (Tex. Crim. App. 1991)). Therefore, in the instant case, the issue



                                           13
before the trial court was whether Lee’s purported belief that his appointment was on

May 13, 2010 and that he had completed his registration prior to being released, if

accepted as true, negated the State’s allegation that he intentionally, knowingly, or

recklessly failed to register as a sex offender. See Granger, 3 S.W.3d at 41.

       A person acts intentionally when it is his conscious objective or desire to cause

the result; he acts knowingly with respect to the nature of his conduct when he is aware

that his conduct is reasonably certain to cause the result. TEX. PENAL CODE ANN. §

6.03(a), (b) (West 2011).

       A person acts recklessly, or is reckless, with respect to circumstances
       surrounding his conduct or the result of his conduct when he is aware of
       but consciously disregards a substantial and unjustifiable risk that the
       circumstances exist or the result will occur. The risk must be of such a
       nature and degree that its disregard constitutes a gross deviation from the
       standard of care that an ordinary person would exercise under all the
       circumstances as viewed from the actor's standpoint.

Id. § 6.03(c).

       If a party timely objects to an error in the charge, as in this case, reversal is

required if the error was “calculated to injure the rights of [the] defendant.” Abdnor v.

State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994) (citing Almanza v. State, 686

S.W.2d 157 (Tex. Crim. App. 1984)). The accused must merely show that he suffered

some harm from the error. Id. Thus, a properly preserved error will require reversal as

long as the error is not harmless. Id.

B.     Analysis

       In our analysis, we must view the evidence in the light most favorable to the

defense in our determination of whether Lee raised the defensive theory of mistake of

fact. See Granger, 3 S.W.3d at 38. Therefore, we have set out the facts below in that



                                           14
light. See id. At trial, Lee properly preserved error by objecting to the omission of his

requested mistake of fact jury instruction. Thus, Lee must merely show that he suffered

some harm from the alleged error. Abdnor, 871 S.W.2d at 732.

        Wallace allowed Lee to reschedule his appointment to register several times.

Lee expressed to his parole officer his intention to comply with the registration

requirement. Lee informed Wood that he had rescheduled his registration appointment.

After missing the last scheduled appointment, Lee met with Wood and Lee was

promptly arrested for failure to register. Lee attended all of his scheduled appointments

with his parole officer and with his therapy group.

        Lee is seventy-six years old and has cancer and Hepatitis C. Lee believed that

he had already registered as a sex offender when he was released from prison on

March 19, 2010. Lee believed that his meeting with Wallace was merely for verification

purposes and not for the initial registration. Lee contacted Wallace on March 22, 2010

to schedule an appointment with her. Wallace told Lee that he needed an ID card with

his address before she would arrange a meeting with him. Lee attempted to acquire the

card.

        Lee contacted Wallace when he passed his written test for his driver’s license

and informed her that the receipt had his address. Wallace asked Lee to come into her

office on March 30, 2010 at 1:30 p.m. Lee had a doctor’s appointment that day and

called Wallace who allowed Lee to reschedule his appointment.         Lee requested an

appointment with Wallace on March 29, 2010 because he was concerned that he had

not acquired his blue card. Wallace would not meet with Lee on that day. Wallace




                                            15
rescheduled Lee’s appointment for April 8, 2010 at 1:00 p.m. Lee thought that was the

time Wallace stated, but admitted that he could have been mistaken.

       Lee contacted Wallace after Wood told him he was in violation of his parole. Lee

asked Wallace to meet with him on April 6, 2010. Wallace refused to meet with Lee on

that day. Lee called Wallace on April 8, 2010 at 9:00 a.m. to confirm the 1:00 meeting.

Wallace informed Lee that he had missed the meeting at 8:30 a.m. Lee asked Wallace

to allow him to come in at that time. Wallace refused. Lee believed that Wallace again

rescheduled his appointment for May 13, 2010. Lee had a medical appointment on that

day and called Wallace asking her to reschedule the appointment. Wallace told Lee to

cancel his medical appointment. Wood told Lee to comply with Wallace’s requirements.

Lee was arrested on April 23, 2010 when he met with Wood regarding his medication.

       Although the evidence clearly established that Lee did not complete his

registration within seven days of his release from prison, there was ample evidence that

Wallace allowed Lee to reschedule his appointment on several occasions and did not

report that Lee had violated the conditions of his probation. There was also evidence

that Wallace refused to meet with Lee when he requested such a meeting.

Furthermore, article 62.051 states that registration should be completed “not later than

the later of” either “the seventh day after the person’s arrival in the municipality or

county” or “the first date the local law enforcement authority of the municipality or county

by policy allows the person to register or verify registration, as applicable.”       Here,

Wallace allowed Lee to reschedule his appointments with her on several dates after

Lee’s seventh day of release from prison. He was then mistaken about the date and

time of his final appointment.



                                            16
          Viewing this evidence in the light most favorable to the defense, we conclude that

the mistake of fact defense was raised by the evidence. We further conclude that the

evidence that Lee thought he had an appointment on May 13, 2010, negated that Lee

acted intentionally, knowingly, or recklessly by missing his actual appointment on April

13, 2010.4 Therefore, the trial court erred by not including Lee’s requested mistake of

fact jury instruction. See Montgomery v. State, 588 S.W.2d 950, 953 (Tex. Crim. App.

[Panel Op.] 1979) (“[T]he accused is entitled to an Affirmative submission of every

defensive issue raised by the evidence.”).

          Furthermore, a jury that believed Lee’s mistake of fact defense would be

obligated to acquit Lee of the charged offense. Tex. Penal Code Ann. § 8.02(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.”).         However, the jury was not provided the requested

instruction to guide it in its determination of Lee’s guilt. See Miller v. State, 815 S.W.2d

582, 586 (Tex. Crim. App. 1991) (concluding that the appellant suffered some harm

because the jury was not given an instruction on the appellant’s defensive theory of

mistake of fact to guide it in its determination of her guilt). Lee, therefore, suffered some

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

instruction. See Abdnor, 871 S.W.2d at 732. We, therefore, sustain Lee’s second

issue.5

          4
          We note that the State does not contest that Lee negated that he acted intentionally or
knowingly. The State merely argues that Lee did not negate that he acted recklessly because he
“disregarded the risk” that he was wrong that his appointment with Wallace was rescheduled for May 13,
2010 rather than April 13, 2010.
          5
          Having sustained Lee’s second issue, we need not address his remaining issues because they
are not dispositive of this appeal. See TEX. R. APP. P. 47.1.

                                                 17
                                    IV.     CONCLUSION

       We reverse the trial court’s judgment and remand this cause to the trial court for

a new trial consistent with this opinion.

                                                         __________________
                                                         ROGELIO VALDEZ
                                                         Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
21st day of November, 2012.




                                             18
