            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. PD-0207-12



                   CHIDIEBELE GABRIEL OKONKWO, Appellant

                                                v.

                                  THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE FOURTEENTH COURT OF APPEALS
                           FORT BEND COUNTY

       A LCALA, J., delivered the opinion of the Court in which K ELLER, P.J., and P RICE,
W OMACK, J OHNSON, K EASLER, H ERVEY, and C OCHRAN, JJ., joined. C OCHRAN, J., filed
a concurring opinion in which J OHNSON and H ERVEY, JJ., joined. M EYERS, J., did not
participate.

                                         OPINION

       The State’s petition for discretionary review asks whether trial counsel for Chidiebele

Gabriel Okonkwo, appellant, rendered ineffective assistance by failing to request a jury

instruction on the defense of mistake of fact.1 Answering this question in the affirmative, the


1
         The mistake-of-fact defense is codified at Texas Penal Code Section 8.02, which provides,
“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
                                                                Chidiebele Gabriel Okonkwo - 2

court of appeals reversed appellant’s conviction for forgery of money. Okonkwo v. State, 357

S.W.3d 815, 821 (Tex. App.—Houston [14th Dist.] 2011); T EX. P ENAL C ODE § 32.21(b).2

The State asserts two challenges. First, it contends that the court of appeals erroneously used

a subjective standard to assess whether defense counsel was ineffective. Second, it argues

that, under an objective standard, counsel could not be held ineffective for failing to request

a mistake-of-fact instruction because the State had to prove that appellant knew the money

was forged as an element of its case. We disagree with the State on its first challenge and

agree on its second. The court of appeals did properly apply an objective standard, although

it erred by failing to weigh the evidence in a light most favorable to the trial court’s ruling.

Furthermore, the court of appeals erred by determining that counsel was objectively

ineffective in light of the record in this case, which shows that it was an inconsistent,

alternative theory asserted by appellant’s trial counsel, and its inclusion may have lessened

the State’s burden of proof. We, therefore, reverse the judgment of the court of appeals.

                                        I. Background

       A. Facts

       According to appellant, he received $60,000 dollars in the mail from a man in Nigeria

whom he had never met, who told appellant that he needed assistance in making purchases




offense.” TEX . PENAL CODE § 8.02(a).
2
       Appellant was charged with forgery of money, a third-degree felony. TEX . PENAL CODE §
32.21(b) (person commits offense if he “forges a writing with intent to defraud or harm another”)
& (e)(1) (when writing is part of an issue of money, forgery is third-degree felony).
                                                                Chidiebele Gabriel Okonkwo - 3

in the United States. Appellant claimed that he believed the money was authentic currency.

He took the money to three different locations with the intent of obtaining money orders.

After he successfully obtained two money orders, he was arrested when a clerk who was

suspicious about the authenticity of the money called the police. The police confirmed that

the money had been forged. At trial, the sole issue was whether appellant knew that the

money was forged.

       The jury instructions required the State to prove that appellant, “with the intent to

defraud and harm another, possess[ed] a forged writing, namely money, and . . . possessed

the writing with the intent to pass the writing and with knowledge that the writing was forged

. . . .” Focusing on the instruction’s requirement that a defendant act with the intent to

defraud or harm another, appellant’s counsel argued in his closing statements that the State

had failed to prove forgery because a person cannot “intentionally or intend to act to defraud

or harm another with currency that you don’t know is counterfeit.” Rejecting this argument,

the jury found appellant guilty.

       Appellant filed a motion for new trial claiming that he had received ineffective

assistance of counsel based on counsel’s failure to request the inclusion of a mistake-of-fact

instruction. The only evidence introduced was counsel’s affidavit, in which he stated that his

failure to make the request was inadvertent and not the result of trial strategy. The trial court

denied the motion for new trial without rendering findings of fact or conclusions of law.
                                                                Chidiebele Gabriel Okonkwo - 4

       B. Direct Appeal and State’s Petition for Discretionary Review

       The court of appeals reversed appellant’s conviction. Okonkwo, 357 S.W.3d at 819-

21. It determined that counsel was ineffective for failing to request the instruction on mistake

of fact and concluded that this error harmed appellant because the jury was precluded from

considering his sole defense. Id. The State challenges this analysis in two grounds in its

petition for discretionary review.

       First, as on direct appeal, the parties dispute whether a subjective or objective standard

should be used to assess the effectiveness of counsel. Appellant prefers the former and the

State the latter. Focusing on this dispute, the State asks, “Must a reviewing court look beyond

the testimony of trial counsel to determine whether not requesting a mistake-of-fact

instruction was objectively reasonable?”

       Second, also as on direct appeal, the parties dispute whether counsel was ineffective

by failing to request an instruction on mistake of fact. The State argues that counsel was not

ineffective because the substance of the mistake-of-fact instruction was subsumed by the

charge describing the elements of the offense and that the instruction, which lessened the

State’s burden of proof, would not have benefitted appellant. Appellant responds that, even

if that is true, he was nonetheless statutorily entitled to that defense, which was his only

defense, and that counsel, therefore, was ineffective in failing to request it. Addressing this

dispute, the State’s second ground for review asks, “Can it ever be deficient performance not

to request a mistake-of-fact instruction when the offense requires the State to prove
                                                                Chidiebele Gabriel Okonkwo - 5

knowledge of that fact beyond a reasonable doubt?”

       As to these two grounds, we conclude that, under an objective standard, appellant’s

counsel was not unreasonable in failing to request the instruction. Counsel, therefore, did not

render deficient performance.

                       II. Strickland3 Error Standard Is Objective

       In its first ground for review, the State argues that the court of appeals improperly

focused on counsel’s subjective self-assessment rather than reviewing his conduct

objectively. Appellant responds that the court of appeals properly considered counsel’s

admission that his failure to request the instruction was not tactical. In deciding an

ineffective-assistance claim, a reviewing court must analyze the reasonableness of counsel’s

conduct on the facts of the particular case, viewed at the time of the conduct. Strickland v.

Washington, 466 U.S. 668, 690 (1984). An appellant must identify counsel’s acts or

omissions that he alleges are not the result of reasonable professional judgment. Id. The court

must then determine whether, in light of all the circumstances, the acts or omissions were

outside the wide range of professionally competent assistance. Id. “[A]n act or omission that

is unprofessional in one case may be sound or even brilliant in another.” Ex parte Chandler,

182 S.W.3d 350, 354 (Tex. Crim. App. 2005) (internal quotations omitted).

       Courts “commonly assume a strategic motive if any can be imagined and find


3
        Strickland v. Washington, 466 U.S. 668, 688 (1984) (to prevail on ineffective-assistance
claim, defendant must prove (1) that counsel’s performance fell below objective standard of
reasonableness and (2) that deficient performance actually prejudiced defendant). We do not reach
the prejudice inquiry because we determine that counsel did not perform unreasonably.
                                                               Chidiebele Gabriel Okonkwo - 6

counsel’s performance deficient only if the conduct was so outrageous that no competent

attorney would have engaged in it.” Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App.

2005); see also Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002). However,

when no reasonable trial strategy could justify his conduct, counsel’s performance falls

below an objective standard of reasonableness as a matter of law, regardless of counsel’s

subjective reasons for his conduct. Andrews, 159 S.W.3d at 102; see also Lopez v. State, 343

S.W.3d 137, 143 (Tex. Crim. App. 2011). Therefore, the focus of appellate review is the

objective reasonableness of counsel’s actual conduct in light of the entire record.

       Appellant cites Hardwick v. Crosby for the proposition that “[t]he mere incantation

of ‘strategy’ does not insulate attorney behavior from review.” 320 F.3d 1127, 1186 (11th

Cir. 2003). Neither, however, does the mere incantation of “no strategy.” As Hardwick

states, the appellate court reviews “attorney behavior.” Id.

       Contrary to the State’s suggestion that the court of appeals used a subjective standard

to find ineffective assistance based solely on counsel’s testimony, the court of appeals

articulated and applied an objective standard. It based its decision not only on counsel’s

affidavit4 but also on the facts that (1) mistake of fact was appellant’s only defense and (2)

he would have been entitled to an instruction had he requested it. See Okonkwo, 357 S.W.3d

at 819-20. Although we ultimately disagree with its application of the objective standard,



4
        As we note below, the court of appeals should have examined the record in a light most
favorable to the trial court’s ruling and, therefore, should have entirely disregarded counsel’s
affidavit.
                                                                Chidiebele Gabriel Okonkwo - 7

which we address in the State’s second ground for review, we hold that the court of appeals

did properly employ an objective standard to evaluate counsel’s performance. We, therefore,

overrule the State’s first ground for review.

               III. Counsel’s Failure to Request Mistake-of-Fact Instruction
                            Was Not Objectively Unreasonable

          In its second ground for review, the State asks, “Can it ever be deficient performance

not to request a mistake-of-fact instruction when the offense requires the State to prove

knowledge of that fact beyond a reasonable doubt?” Appellate courts, however, should

decide cases on the narrowest available ground, and resolution of this case does not require

resolution of this question as it might to pertain to all other cases. See Randolph v. State, 353

S.W.3d 887, 895 n.32 (Tex. Crim. App. 2011) (“The prudent jurist will typically decide cases

on the narrowest, surest ground available, leaving tougher calls, with broader implications,

for future cases that squarely present them.”) (internal quotations omitted). Instead, we need

only decide whether the court of appeals erred in reversing the trial court’s denial of

appellant’s motion for new trial claiming ineffective assistance of counsel. We conclude that

it did.

          A. Deferential Standard of Review

          As noted above, the trial court denied appellant’s motion for new trial. An appellate

court reviews a trial court’s denial of a motion for new trial for an abuse of discretion,

reversing only if the trial court’s ruling was clearly erroneous and arbitrary. Riley v. State,

378 S.W.3d 453, 457 (Tex. Crim. App. 2012). A trial court abuses its discretion if no
                                                                 Chidiebele Gabriel Okonkwo - 8

reasonable view of the record could support its ruling. Id. This requires the appellate court

to view the evidence in the light most favorable to the trial court’s ruling. Id. In the absence

of express findings, as here, we presume that the trial court made all findings, express and

implied, in favor of the prevailing party. Id. at 459.

       The trial court, as factfinder, is the sole judge of witness credibility at a hearing on a

motion for new trial with respect to both live testimony and affidavits. Id. Accordingly, the

appellate court must afford almost total deference to a trial court’s findings of historical facts

as well as mixed questions of law and fact that turn on an evaluation of credibility and

demeanor. Id. at 458. This same deferential review must be given to a trial court’s

determination of historical facts based solely on affidavits, regardless of whether the

affidavits are controverted. Id. at 457. Here, in viewing the evidence in a light most

favorable to the trial court’s ruling, the court of appeals should have deferred to the trial

court’s implied finding that counsel’s affidavit lacked credibility. In the absence of that

affidavit, the court of appeals should have examined the totality of the record in a light most

favorable to the trial court’s ruling to assess whether counsel, under an objective standard,

rendered ineffective assistance.

       B. Counsel Did Not Render Ineffective Assistance

       Appellant was charged with forgery of a writing, which required the State to prove

that he acted “with intent to defraud or harm another.” T EX. P ENAL C ODE § 32.21(b). When

intent to defraud is the mens rea of the offense, the State must prove facts from which that
                                                                   Chidiebele Gabriel Okonkwo - 9

intent is deducible beyond a reasonable doubt and, in the absence of that proof, a conviction

will not be justified. Stuebgen v. State, 547 S.W.2d 29, 32 (Tex. Crim. App. 1977). Because

an element of the State’s case required proof that appellant acted with the intent to defraud

or harm another, the State necessarily had to prove that he knew that the bills were forged,

which was the same fact about which appellant claimed to have been mistaken. As this Court

has explained, “While the requisite culpable mental state [for the offense of forgery of a

writing] is ‘intent to defraud or harm,’ we fail to perceive how such culpable mental state can

be shown absent proof of knowledge that the instrument is forged.” Id. The State, therefore,

correctly observes that proof of the culpable mental state necessarily proves lack of mistake

regarding the authenticity of the bills.

       Relying on this observation, the State contends that appellant would not have been

entitled to an instruction on mistake of fact because the instruction was unnecessary. It argues

that when an offense “requires proof of knowledge beyond a reasonable doubt, there is no

reason to also instruct the jury that a reasonable doubt on the issue [of knowledge] requires

that the defendant be acquitted.” In other words, the State suggests that, because the

substance of the mistake-of-fact defense was subsumed by the charge and merely negated an

element the State was required to prove, a mistake-of-fact instruction would not have been

required and served no purpose. See Bruno v. State, 845 S.W.2d 910 (Tex. Crim. App.

1993).5 By contrast, appellant contends that, because the mistake-of-fact instruction is

5
        In Bruno, an unauthorized-use-of-a-motor-vehicle case, Bruno testified that the owner of the
vehicle had given him permission to use her car, but the owner testified that Bruno had fled with her
                                                                   Chidiebele Gabriel Okonkwo - 10

codified, it must be given if it negates a defendant’s culpable mental state, is raised by the

evidence, and is requested by a party. See, e.g., Willis v. State, 790 S.W.2d 307, 314-15 (Tex.

Crim. App. 1990); Giesberg v. State, 984 S.W.2d 245, 249-50 (Tex. Crim. App. 1998).6 This



car without her permission. Bruno v. State, 845 S.W.2d 910, 911 (Tex. Crim. App. 1993). A plurality
of this Court determined that a mistake-of-fact instruction was “unnecessary” because the jury could
believe either Bruno or the owner, but not both. Id. at 913. This Court distinguished Bruno’s case
from those in which an instruction was required by noting that those cases involved third parties.
Id. This Court explained that, in third-party situations, an instruction on mistake of fact must be
given so that a jury has the opportunity to acquit a defendant if it determines that he reasonably
believed he had the consent of the owner based on a representation made to him by a third party. Id.
Although the Fourteenth Court of appeals did not follow Bruno in this case, it did at one time. See
Hopson v. State, No. 14-08-00735-CR, 2009 Tex. App. LEXIS 2903, at *6-10 (Tex. App.—Houston
[14th Dist.] Apr. 28, 2009, no pet.) (not designated for publication). Aside from the Fourteenth Court
of Appeals, only one other Texas intermediate court has followed Bruno. In Traylor v. State, the
Beaumont court of appeals held that the trial court properly refused to give a mistake-of-fact
instruction because it “was not necessary.” 43 S.W.3d 725, 730-31 (Tex. App.—Beaumont 2001,
no pet.) (holding defensive instruction that Traylor was mistaken about whether victim was police
officer was unnecessary because, to convict Traylor, jury had to find that he knew the victim was
police officer). Only one other court of appeals has applied Bruno, but it did so in an unpublished
decision and in the context of a harm analysis rather than an error analysis. Turner v. State, No.
04-03-00436-CR, 2004 Tex. App. LEXIS 7587, at *18 (Tex. App.—San Antonio Aug. 25, 2004, no
pet.) (not designated for publication) (citing Bruno, 845 S.W.2d at 913).
6
         See also Louis v. State, 393 S.W.3d 246, 253 (Tex. Crim. App.2012) (defendant entitled to
mistake-of-fact instruction when raised to negate transferred intent); Thompson v. State, 236 S.W.3d
787, 799-800 (Tex. Crim. App. 2007) (same); Granger v. State, 3 S.W.3d 36, 41 (Tex. Crim. App.
1999) (“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 of ‘mistake of fact.’”) (quoting Miller v. State,
815 S.W.2d 582, 585 (Tex. Crim. App. 1991)); Hill v. State, 765 S.W.2d 794, 795 n.2 (Tex. Crim.
App. 1989) (“Where a defense, such as mistake of fact, is enacted by the Legislature, the rule that
it is not error to deny a requested instruction where it is an affirmative submission of a defensive
issue which merely denies the existence of an essential element of the State’s case becomes
inapplicable.”); Knowles v. State, 672 S.W.2d 478, 480 (Tex. Crim. App. 1984) (because evidence
raised the defensive issue of mistake of fact, “it was reversible error to deny appellant’s timely
request for a charge on” that defense); Sands v. State, 64 S.W.3d 488, 495-96 (Tex.
App.—Texarkana 2001, no pet.) (“Even if this [mistake-of-fact] 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.”).
                                                                 Chidiebele Gabriel Okonkwo - 11

Court has not yet resolved this dispute, and we need not do so here in the context of a

complaint of ineffective assistance of counsel because, under either of the scenarios

promoted by the State and appellant, appellant has not shown that counsel was objectively

unreasonable in failing to request an instruction on mistake of fact.

       The evidence introduced by appellant’s trial counsel suggested defensive theories that

inconsistently asserted either (1) that appellant lacked criminal intent because he honestly

believed that the bills were genuine, even if he was unreasonable in that belief,7 or,

alternatively, (2) that he was reasonably mistaken about the authenticity of the bills.8 The

first alternative theory promoted by appellant’s trial counsel was addressed by the jury

instruction that expressly preconditioned a conviction upon a jury finding that appellant knew

the currency was not authentic. In other words, the instructions on the forgery elements

required the State to prove beyond a reasonable doubt that appellant actually knew the bills

were forged. By comparison, had counsel pursued an instruction on mistake of fact to

address his second alternative theory, the jury would have also had to decide whether that



7
       For example, in his closing argument, defense counsel stated,

       One thing that has been proven in this case beyond a reasonable doubt is that
       [appellant] handled this money and acted in the circumstances in a totally
       unreasonable way that lacks common sense even at a basic level. That’s clear. . . .
       You can’t intentionally or intend to act to defraud or harm another with currency that
       you don’t know is counterfeit.
8
        Some evidence tended to show that appellant reasonably believed the bills were genuine.
Testimony showed that these types of cash transactions were typical in Nigeria and that some of the
currency had been determined to be genuine when it was tested with a forgery-detection pen by a
store clerk.
                                                                   Chidiebele Gabriel Okonkwo - 12

belief was reasonable. See T EX. P ENAL C ODE § 8.02(a). This would have been problematic

for appellant because the instruction would have decreased the State’s burden of proof by

permitting the jury to convict him if it concluded that his mistake was unreasonable, even if

it found that the belief was honest. Therefore, counsel was not objectively unreasonable in

failing to request an instruction that may have caused the jury to convict him based on a

lessened burden of proof.

       Even if the law permitted counsel to obtain an instruction on mistake of fact under

these circumstances, the failure to request the instruction was not objectively unreasonable

because defensive issues “frequently depend upon trial strategy and tactics.” See Tolbert v.

State, 306 S.W.3d 776, 779-82 (Tex. Crim. App. 2010); see also Vasquez v. State, 830

S.W.2d 948, 950 n.3 (Tex. Crim. App. 1992) (“[J]ust because a competent defense attorney

recognizes that a particular defense might be available to a particular offense, he or she could

also decide it would be inappropriate to propound such a defense in a given case.”). Under

the record in this case, we conclude that counsel was not objectively unreasonable by failing

to request an instruction on mistake of fact because that theory was inconsistent with a

theory that counsel advanced at trial, and it would have misled the jury as to the State’s

burden of proof.9 We, therefore, cannot conclude that the trial court’s ruling was clearly

erroneous and arbitrary and that no reasonable view of the record could support it. See Riley,



9
        We do not foreclose the possibility that an attorney could be ineffective by failing to request
the instruction under different circumstances or by failing to request an instruction to negate a
transferred-intent element. See Thompson, 236 S.W.3d at 799-800.
                                                             Chidiebele Gabriel Okonkwo - 13

378 S.W.3d at 457. In light of the entire record, we hold that the court of appeals erred in

determining that the trial court abused its discretion. We sustain the State’s second issue as

we have narrowly construed it.

                                      IV. Conclusion

       We reverse the judgment of the court of appeals and render a judgment affirming the

judgment of the trial court.




Delivered: May 15, 2013

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