                                                                                    PD-0832-15
                                                                  COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                  Transmitted 11/2/2015 1:05:05 PM
November 2, 2015
                                                                    Accepted 11/2/2015 2:26:45 PM
                                                                                    ABEL ACOSTA
                                CASE NO. PD-0832-15                                         CLERK
                            ______________________________

                      IN THE COURT OF CRIMINAL APPEALS
                             OF THE STATE OF TEXAS
                           ______________________________

                               THE STATE OF TEXAS,
                                                             Appellant,
                                           v.

                               JAMES ALAN JENKINS,
                                                         Appellee.
                            ______________________________

                   On Appeal From the 14th District Court of Appeals,
                         Cause Number No. 14-13-00662-CR
                           ______________________________

                                   STATE’S BRIEF
                            ______________________________

    KEN PAXTON                                    ADRIENNE MCFARLAND
    Attorney General of Texas                               Chief, Criminal
                                                      Prosecutions Division

    JONATHAN WHITE                                        *JON R. MEADOR
    Assistant Attorney General                    Assistant Attorney General
                                                     State Bar No. 24039051

                                        P. O. Box 12548, Capitol Station
                                                    Austin, Texas 78711
                                              Telephone: (512) 936-1400
    *Lead Appellate Counsel                    Facsimile: (512) 936-1280
                       _____________________________

                            ATTORNEYS FOR THE STATE

                           ORAL ARGUMENT REQUESTED
         IDENTITY OF JUDGE, PARTIES, AND COUNSEL

JUDGE:                    Honorable John Stevens
                          359th District Court
                          Montgomery County, Texas

PROSECUTORS:              Jonathan White & David Glickler
                          Office of the Attorney General
                          Assistant Attorneys General
                          P.O.12548
                          Austin, Texas 78711

DEFENSE ATTORNEY:         Audley Heath
                          609 Colquitt Street
                          Houston, Texas 77006

APPELLATE ATTORNEYS:      George McCall Secrest, Jr. (Appellee)
                          Bennett & Secrest, PLLC
                          808 Travis Street, 24th Floor
                          Houston, Texas 77002

                          Jon R. Meador
                          Office of the Attorney General
                          (Appellant)
                          Assistant Attorney General
                          P.O.12548
                          Austin, Texas 78711




                            i
                                  TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES, AND COUNSEL .............................. i

INDEX OF AUTHORITIES ................................................................... iv

STATEMENT OF THE CASE ................................................................ 1

STATEMENT REGARDING ORAL ARGUMENT ................................. 1

ISSUES PRESENTED............................................................................ 2

STATEMENT OF THE FACTS .............................................................. 2

  I. Overview of the RUD. ..................................................................... 2

  II. The State’s Case for Conspiracy to “Take Over” the RUD. ............. 2

  III. The Genesis of the Plan………………………………………...………5

  IV. The Plan to “Make Up” Reasons for Returning to The Residence
  Inn……………………………………………………………………………. 11

  V. Statement of Facts Regarding Appellee’s Understanding of
  Relevant Election-Law Authorities ………………………………………14

  VI. The Mistake of Law Instruction……………………..……………….21

SUMMARY OF THE ARGUMENT ...................................................... 22

ARGUMENT ......................................................................................... 23

  I. The Trial Court Did Not Err in Failing to Provide the Section 8.03
  Instruction. ........................................................................................ 23

                                                   ii
    A. Standard of Review. ................................................................... 23

    B. Affirmative Defenses Are Subject to Confession and Avoidance.
    ………………………………………………………………………………..25

    C. Section 8.03 Mistake of Law Is In The Nature of Confession and
    Avoidance. ....................................................................................... 34

    D. Appellee’s Reliance Was Unreasonable as a Matter of Law. ...... 50

    E. A Mistake-Related Defense That Tended To Negate The
    Culpability Necessary for the Commission of the Offense Would Not
    Apply To Illegal Voting. .................................................................. 53

  II. The Court of Appeals Erred in Finding that Appellee Was Harmed
  by the Trial Court’s Failure to Provide a Section 8.03 Mistake of Law
  Instruction. ........................................................................................ 57

PRAYER FOR RELIEF ........................................................................ 62

TEXAS RULE OF APPELLATE PROCEDURE 9.4 ............................. 63

CERTIFICATE OF SERVICE .............................................................. 64




                                                   iii
                            INDEX OF AUTHORITIES

                                                                                      Page

CASES

Alford v. State, 808 S.W.2d 581 (Tex. App. – Dallas 1991), aff’d by, 866
  S.W.2d 619 (Tex. Crim. App. 1993); ................................................ 33,35

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.1984) ............... 24, 65

Austin v. State, 541 S.W.2d 162 (Tex. Crim. App. 1976) ....................... 47

Bailey v. United States, 524 U.S. 184 (1998) ......................................... 33

Barnette v. State, 709 S.W.2d 650 (Tex. Crim. App. 1986) .................... 28

Boykin v. State, 818 S.W.2d 72 (Tex. Crim. App. 1991) ......................... 42

Bruno v. State, 845 S.W.2d 910 (Tex. Crim. App. 1993) ........................ 28

Bryan v. United States, 524 U.S. 184 (1998) .......................................... 56

Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007) ........................ 25

Commonwealth v. Bobino, 18 A.2d 458 (N.Y. 1941) ............................... 49

Commonwealth v. Cosentino, 850 A.2d 58 (N.Y. 2004) .................... 49, 50

Commonwealth v. Kratas, 564 Pa. 36, 764 A.2d 26 (Pa. 2001) .............. 37

Cornet v. State, 359 S.W.3d 217 (Tex. Crim. App. 2012) ....................... 41

Cornet v. State, 417 S.W.3d 446 (Tex. Crim. App. 2013) ....................... 57

Cox v. Louisiana, 379 U.S. 559 (1965) .................................................... 38

Davis v. United States, 690 F.3d 330 (5th Cir. 2012)............................. 52

                                             iv
DeHam v. State, 389 S.W.2d 955 (Tex. Crim. App. 1965) ...................... 28

Dixon v. United States, 548 U.S. 1 (2006) .............................................. 33

Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007)....................... 65

Durden v. State, 290 S.W.3d 413 (Tex. App. – Texarkana 2009, no pet.)
   .............................................................................................................. 58

Ex parte Canady, 140 S.W.3d 845, 849 (Tex. Crim. App. 2004) ............ 39

Ex parte Nailor, 149 S.W.3d 125 (Tex. Crim. App. 2004) ...................... 38

Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998) .................... 32

Granger v. State, 3 S.W.3d, 36 (Tex. Crim. App. 1999) ......................... 31

Green v. State, 829 S.W.2d 222 (Tex. Crim. App. 1992) .................. 47, 53

Hefner v. State, 735 S.W.2d 608 (Tex. App. – Dallas 1987, pet. ref'd) .. 48

Hicks v. Feiock, 485 U.S. 624 (1988) ...................................................... 33

In re Winship, 397 U.S. 358, 364 (1970) ................................................. 34

Jackson v. State, 646 S.W.2d 225 (Tex. Crim. App. 1983) ..................... 31

Jenkins v. State, No. 14-13-00662-CR, 2015 Tex. App. LEXIS 5667 (Tex.
  App. – Houston [14th Dist.] 2015) ............................................... passim

Juarez v. State, 308 S.W.3d 398 (Tex. Crim. App. 2007) ..... 27, 29, 31, 35

Kimbro v. State, 157 Tex. Crim. 440, 249 S.W.2d 919 (Tex. Crim. App.
  1952) ............................................................................................... 28, 35

Love v. State, 199 S.W.3d 447 (Tex. App.—Houston [1st Dist.] 2006, pet.
  ref'd) ...................................................................................................... 24

Lowry v. State, 692 S.W.2d 86, 87 (Tex. Crim. App. 1985) .............. 34, 40
                                                        v
Martin v. Ohio, 480 U.S. 228 (1987) ..................................... 41, 42, 58, 59

McDuffee v. Miller, 327 S.W.3d 808 (Tex. App. – Beaumont 2010, no
  pet.) ......................................................................................................... 3

Medrano v. State, 421 S.W. 3d 869 (Tex. App.—Dallas 2014, no pet.) .. 54

Miller v. State, 660 S.W.2d 95 (Tex. Crim. App. 1983) .......................... 28

Mills v. Bartlett, 377 s.w.2D 636 (1964) ............................... 14, 51, 52, 60

Mullaney v. Wilbur, 421 U.S. 684 (1975)................................................ 34

Okonkwo v. State, 398 S.W.3d 689 (Tex. Crim. App. 2013) ............. 44, 61

Ostrosky v. State, 725 P.2d 1087 (Alaska Ct. App. 1986) ...................... 53

People v. Marrero, 507 N.E.2d 1068 (N.Y. 1987).............................. 48, 51

People v. Studifin, 504 N.Y.S.2d 608 (Sup. Ct. 1986)............................. 38

Plummer v. State, 426 S.W.3d 122 (Tex. App. – Houston [1st Dist.]
  2012, pet. ref'd) ..................................................................................... 47

Posey v. State, 966 S.W.2d. 57 (Tex. Crim. App. 1998) .................... 23, 24

Reyes v. State, 422 S.W. 3d 18 (Tex. App. – Waco 2013, pet. ref'd) ....... 58

Rodriguez v. State, 368 S.W.3d 821 (Tex. App. 2012, pet. ref'd) ............ 44

Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990) ...................... 25

Ruffin v. State, 270 S.W.3d 586 (Tex. Crim. App. 2009) ........................ 44

Sanchez v. State, 376 S.W.3d 767 (Tex. Crim. App. 2012) ..................... 57

Sanders v. State, 707 S.W.2d 78 (Tex. Crim. App. 1986) ................. 29, 30


                                                       vi
Sands v. State, 64 S.W.3d 488 (Tex. App. – Texarkana 2001, no pet.) .. 58

Shaw v. State, 243 S.W.3d 647 (Tex. Crim. App. 2007) ................... 24, 38

Smith v. United States, 133 S. Ct. 714 (2013) ........................................ 41

State v. DeRoach, 458 S.W.3d 696 (Tex. App. – San Antonio 2015 pet.
  ref'd) ...................................................................................................... 47

State v. Pruser, 21 A.2d 641 (N.Y. 1941) ................................................ 56

State v. Sheedy, 125 N.H. 108, 480 A.2d 887 (1984) .............................. 48

Taylor v. Taintor, 83 U.S. (16 Wall.) (1873) ........................................... 47

Texas v. Florida, 306 U.S. 398 (1939) .................................................... 52

Thompson v. State, 236 S.W.3d 787 (Tex. Crim. App. 2007) ........... 39, 40

Thompson v. State, 26 Tex. Ct. App. 94, 9 S.W. 486 (1888) ................... 54

United States v. Aquino-Chacon, 109 F.3d 936 (4th Cir. 1997) ............. 51

United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558 (1971) .... 56

Westbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000) ........... 25

Willis v. State, 707 S.W.2d 78 (Tex. Crim. App.1986) ............................ 29

Young v. State, 991 S.W.2d 835 (Tex. Crim. App. 1999) ........................ 39




                                                      vii
                                              STATUTES

Texas Election Code § 1.015 (West 2010) ....................................... passim

Texas Election Code § 11.001 (West 2010)……….………...…...…….62, 63

Texas Election Code § 64.012 (West 2010)…………...…………….passim

Tex. Penal Code Ann. § 8.02 (West 2010) ....................................... passim

Tex. Penal Code Ann. § 8.03 (West 2010) ....................................... passim

Tex. Penal Code art. 40 (1948) .......................................................... 39, 40

Tex. Penal Code art. 45 (1879) .......................................................... 39, 40

                                    OTHER AUTHORITIES

Texas Criminal Pattern Jury Charges, State Bar of Texas 2010);
 § B12.2, at 164-167 (2010)............................................................ passim

Texas Criminal Practice Guide § 122.01 ................................................ 33

The Doctrine of Affirmative Defenses in Civil Cases – Between Common
 Law and Jewish Law, 34 N.C.J. Int’l & Comm. Reg. 111, 117-18
  (2008) .................................................................................................... 35

Wayne R. LaFave, Substantive Criminal Law § 5.6(a), at 394-397 (2d
 ed. 2003)); ................................................................................. 36, 37, 51




                                                     viii
                        STATEMENT OF THE CASE

      Appellee, James Alan Jenkins, was charged with illegal voting; that

is, voting in an election in which he knew he was not eligible to vote. CR

at 111 (indictment); Appendix A. Appellee asked for an instruction at the

charge conference on “Mistake of Law,” based on section 8.03 of the Penal

Code (Section 8.03 Mistake of Law). CR at 318-322; Appendix B. The

Honorable John Stevens denied the requested instruction finding that

Appellee had failed to admit to the conduct charged. IX RR 167-170;

Appendix C. Appellee was subsequently found guilty and sentenced to

three years’ incarceration. CR at 353-355; Appendix D. On appeal, a

majority of the court found that Judge Stevens erred in failing to provide

the instruction and that the error harmed the Appellee, while the dissent

found no error or harm. See Jenkins v. State, No. 14-13-00662-CR, 2015

Tex. App. LEXIS 5667 (Tex. App. – Houston [14th Dist.] 2015); Appendix

E.

             STATEMENT REGARDING ORAL ARGUMENT

      Because this Court would be addressing an issue of first impression,

namely, whether Section 8.03 Mistake of Law is subject to the doctrine of

confession, the State respectfully requests oral argument.

1
 “CR” refers to the Clerk’s Record—the transcript of pleadings and documents filed
with the clerk during trial and is followed by page number. “RR” refers to the
Reporter’s Record of the transcribed trial proceedings and is preceded by volume
number and followed by page number. “SX” will refer to the numbered exhibits
offered by the State and admitted into evidence at trial, and “DX” will refer to the
defendant’s exhibits.
                                         1
                         ISSUES PRESENTED

      1.   The court of appeals erred in failing to affirm the trial
           court’s ruling denying Appellee’s Request for a Section
           8.03 Mistake of Law instruction.

      2.   The court of appeals erred in finding that Appellee was
           harmed by the trial court’s failure to provide a Section
           8.03 Mistake of Law instruction.

                    STATEMENT OF THE FACTS

I.    Overview of the RUD.

      The Woodlands Road Utility District (RUD) was created to do road

projects in and around The Woodlands, Texas, and is financed by taxes

on commercial properties within the RUD. VII RR 33-41 The RUD is

bounded primarily by the major roadways and commercial properties in

The Woodlands and is governed by an elected board of five directors, none

of whom by law had to reside within the RUD. VII RR 33-41; SX 1

(boundary map). Three of the five board seats expired in 2010, and an

election was scheduled for May 8, 2010. VII RR 43.

II.   The State’s Case for Conspiracy to “Take Over” the RUD.

      The candidates included three incumbents, Bill Neill, Gene Miller,

and Winton Davenport, and three challengers Bill Berntsen, Peter

Goeddertz, and Richard McDuffee. VII RR 37, 40-43. There were two


                                    2
votes cast for each of the incumbents in early voting. VII RR 43-44; SX 3

(election records). There were ten votes cast each of the challengers on

election day. VII RR 44-45; SX 4 (election records). The ten voters

included Appellee, Goeddertz, Roberta Cook, Sybil Doyle, Berntsen,

Adrian Heath, Robert Allison, Benjamin Allison, Thomas Curry, and

McDuffee. VII RR 45-46. Each of the ten, election-day voters listed The

Marriott Residence Inn, 9333 Six Pines Drive, The Woodlands

(hereinafter, “The Residence Inn”), as his or her residency. VII RR 44-48.

Appellee signed a voter’s registration application on April 5, 2010 listing

The Residence Inn as his residence. VII RR 54-55. But Appellee also

listed his mailing address as 16 Pastoral Pond Circle, The Woodlands

(hereinafter, “Pastoral Pond”), which he and his wife had purchased on

or about January 17, 1992, and which had been designated as his

“homestead” since June 29, 2004. VII RR 54-55; SX 7, 9.

         James Stillwell, an attorney who had represented the three

incumbent directors in a lawsuit2 challenging the election results filed on

May 14, 2010, testified that he obtained records from The Residence Inn,

and those records indicated that none of the election-day voters had


2
    McDuffee v. Miller, 327 S.W.3d 808 (Tex. App. – Beaumont 2010, no pet.).
                                           3
rented a room at The Residence Inn prior to the date on which he or she

executed his or her voter registration card. VII RR 49-61; SX 6 (guest

records for The Residence Inn), 7 (voter registration applications).

Arguing that the ten, election-day voters had conspired to “take over the

RUD,” the State was permitted to introduce, over Appellee’s objection,

deed records of the election-day voters tying each of them to properties

outside the RUD. VII RR 67-77; SX 8-16 (deed records), 17 (aerial map).

The State also introduced photographs of the properties, inside and out,

and the homestead exemptions applicable to each property all indicating

that the voters lived outside the RUD. VII RR 77-85, 94; SX 18, 20-28.

     Dara Bowlin, a sergeant in the special investigations unit at the

Attorney General’s office, obtained certified copies of Department of

Public Safety records for all ten voters. VII RR 157-165; SX 39-48.

Appellee changed his address listed on his driver’s license to The

Residence Inn on May 24, 2010. VII RR 168-169; SX 40. Curry had also

changed his address to The Residence Inn. VII RR 159; SX 41. No one

else listed The Residence Inn as his or her address. VII RR 157-165.

Bowlin also obtained certified copies of Texas Department of Motor

Vehicle registration records for the election-day voters. VII RR 165; SX


                                   4
49. None listed The Residence Inn as an address and all matched up with

the deed records in state’s exhibits 8-17, which indicated that each voter

had ties to physical property outside the RUD. VII RR 165-168.

III.   The Genesis of the Plan.

       Heath, who had lived in Montgomery County for nearly twenty

years and considered himself to be “very political,” began investigating

the formation and workings of the RUD and discovered that it was $65

million in debt and, in his opinion, benefited the developers and not the

residents. VIII RR 138-139, 153-154. After learning that three of the five

board seats would expire in 2010, Heath began speaking with state and

local election officials about the residency requirements for voting. VIII

RR 140-143, 154-157. He subsequently decided he wanted to establish his

residency within the RUD so he could vote in the upcoming May 8, 2010

election. VIII RR 160. He changed his residency on March 5, 2010 to The

Residence Inn. VIII RR 163-164; SX 7. He also began looking for people

to run for the board. VIII RR 160. He talked to several people about

running and McDuffee, Goeddertz, and Berntsen eventually agreed to

run. VIII RR 160-161. While the addresses McDuffee, Goeddertz, and

Berntsen used in their applications to run for the open positions on the


                                    5
RUD board were outside the RUD, all listed The Residence Inn as their

addresses when they registered to vote in the RUD election. VII RR 40-

42, 46, 57-59; SX 2 (candidacy applications).3 Heath called Appellee in

late February or early March and asked if he could get a group together

for a public meeting in the RUD. IX RR 71. At the meeting, Heath

discussed residency for voting purposes, referring to opinions from the

Secretary of State and the Office of the Attorney General4 and a copy of

the RUD map. VIII RR 175-176.

      At trial, McDuffee testified that he first heard about The

Woodlands RUD when he received a call around March of 2010 inviting

him to a meeting at Appellee’s place of business. VII RR 171-172.

Appellee, who McDuffee characterized the “leader” of the voting group

because “everything flowed out of Jim’s office,” expressed a desire for

McDuffee to vote in the election and to run for president of the board. VII

RR 179-182. McDuffee’s instructions were “to be elected, become

president, pay off the bills, and turn the lights out [on the RUD].” VII RR



3
 A candidate did not need to reside within the RUD to run for the Board but had to
reside within the RUD to vote. VII RR 41.
4
 DX 1 is the Secretary of State Opinion, GSC-1 (GSC-1). DX 2 is the opinion of the
Office of the Attorney General, GA-0141 (GA-0141).
                                        6
180. While he was in Appellee’s office, McDuffee filled out his application

for candidacy for the Board and then, in April 2010, changed his voting

address to the address for The Residence Inn, which Appellee had posted

in his office. VII RR 180-186.

     Benjamin Allison testified that he was 23 years old when he had

been brought into the voting group by Heath. VIII RR 8. He first heard

about the RUD and pending election in March 2010. VIII RR 11. He and

his brother, Robert, decided to change their addresses to The Residence

Inn so they could vote in the May 8 election. VIII RR 8-9, 16-17.

     Goeddertz testified that he first heard about the RUD from

Appellee, whom he had known for about 15 years. VIII RR 72. Appellee

was very interested in the issue, so they devised a plan to run for director

positions so they could disband the RUD. VIII RR 73. Appellee asked

Goeddertz, McDuffee, and Berntsen to submit their candidacies for the

board, and they agreed. VIII RR 73-74. When Goeddertz applied for a

place on the ballot, he listed his permanent address as 15910 Hartman,

which was located outside the RUD. VIII RR 75; SX 2. But when he

registered to vote on March 31, 2010, he listed The Residence Inn as his

residence address while using the Hartman address as his mailing


                                     7
address. VIII RR 76-78; SX 7. Goeddertz testified that he put his property

up for sale when he ran for office. VIII RR 93. He testified that The

Residence Inn was “[p]robably not” his “fixed place of habitation” and not

where he “intend(ed) to return after any temporary absence.” VIII RR 96.

He admitted that he put his house up for sale solely for the purpose of

the lawsuit. VIII RR 110.

     Appellee testified that he had resided at the Pastoral Pond home in

Montgomery County for approximately twenty years. IX RR 64. He first

found out about the RUD elections when Heath called him in late

February or early March and asked if he could get a group together for a

public meeting in the RUD. IX RR 71. Appellee invited four people –

Goeddertz, McDuffee, Berntsen, and Jim Doyle. IX RR 71-72. The topic

of the meeting included information on the RUD gleaned from Heath’s

research. IX RR 72. Heath also provided the Secretary of State opinion

on residency and a color map of the RUD. IX RR 73-74.

     Phil Grant, the First Assistant District Attorney in Montgomery

County, Texas, testified that he sent out letters to the newly registered

voters after receiving notification that several individuals had registered

to vote listing a hotel in the RUD as their residencies. VII RR 126-27; SX


                                    8
34 (Grant Letter).5 Grant said that the letters were not intended to be

threats, legal advice or blanket encouragements to exercise the right to

vote, but rather that they were meant to be informative, cautionary

letters. VII RR 127-129. Grant encouraged the recipients in the letter to

read election-related statutes, opinions from the Attorney General [GSC-

1] and from the Secretary of State [GA-141], and a criminal statute on

illegal voting. VII RR 130. He acknowledged that he was not providing

an exclusive list of election-related authorities. VII RR 137. Although he

did not include the definition of eligibility and residence in the letter, he

thought that the definition of residence as laid out in Section 1.015 of the

election code provided enough specificity to have the desired effect on the

recipients of the letter. VII RR 138-40.

      McDuffee remembered receiving the Grant Letter and he said his

first thoughts were: “Danger. This wasn’t going to be a walk in the park.

It was not something taken lightly.” VII RR 181. He subsequently spoke

with an attorney friend, who said he could not “call” the question of

residency. VII RR 207-208. Appellee advised McDuffee not to worry about


5
 The Grant Letter referenced GSC-1, GA-141, and section 64.012 of the Election Code
criminalizing “Illegal Voting.” SX 34. The voters were “encouraged to exercise your
right to vote in a manner that is consistent with the law.” SX 34.
                                        9
the Grant Letter because the matter of residency was a “gray area.” VII

RR 212. Goeddertz remembered that when they first received the Grant

Letter, all the voters got together at Appellee’s office to review it. VIII RR

97-98. He thought the letter seemed to be cautioning them about what

they were about to do. VIII RR 98. The letter directed them to helpful

resources, but he did not personally review them. VIII RR 98. They

sought attorney Eric Yollick’s advice and afterwards decided to go ahead

and vote in the election. VIII RR 99. Appellee testified that he was not

concerned with the Grant Letter because he had already read the

authorities referenced in the letter. IX RR 95. After reviewing those

resources again with Yollick, Appellee believed he was complying with

the law. IX RR 103.

      On May 7, 2010, the night before the election, Appellee checked into

The Residence Inn and subsequently checked out on May 9, 2010, the day

after the election. VII RR 46-49. Although the registration identified only

one registered guest, notes appended to the account identified four other

people in the room—Heath, Curry, Goeddertz, and McDuffee. VII RR 50,

91. The records also included a registration for Benjamin Allison and one

other guest for one night on May 14, 2010. VII RR 51. Allison said the


                                     10
first time he stayed at The Residence Inn was May 7, 2010, the night

before the election. VIII RR 20. On May 8, he and his brother, who had

also stayed at the hotel, went to vote in the morning, after which they

returned to the hotel to check out, planning to return at some uncertain

date in the future. VIII RR 22-23. He and his brother paid their portion

of the hotel cost to Appellee. VIII RR 23. Goeddertz stayed at The

Residence Inn for the first time on May 7, 2010 as well. VIII RR 85-86.

According to Goeddertz, Appellee oversaw the renting of the rooms, and

he paid his portion of the bill to Appellee. VIII RR 84-86. When he left

the hotel on May 9, 2010, Goeddertz probably did not intend to return.

VIII RR 88. He testified that he only registered to vote from that address

because he wanted to vote in the May 8, 2010 election. VIII RR 88-89.

McDuffee testified that he did not spend the night at The Residence Inn

before the election and had never, in fact, spent the night at The

Residence Inn. VII RR 186.

IV.   The Plan to “Make Up” Reasons for Returning to The Residence
      Inn.

      Eric Yollick testified that he was hired after the election by about

ten people, including Appellee, to represent them in the election contest.

IX RR 35-36. McDuffee testified that Yollick asked the voters to meet at

                                    11
his office and to come prepared with a reason for moving out of their

houses and into The Residence Inn. VII RR 187. Allison attended the

meeting and said Yollick strongly advised them to rent additional rooms

at The Residence Inn. VII RR 27. Appellee testified that Yollick asked

the voters to come up with a reason why they moved to The Residence

Inn: “We had to prove that we were honestly going to live at the Residence

Inn.” IX RR 164-165. Yollick claimed, however, that he did not give them

any advice with regard to where they should stay during the lawsuit. IX

RR 36. McDuffee’s “made-up reason” was that he had a security and

insurance license and needed to be in the center of the area to be able to

do sales and compliance. VII RR 187. According to McDuffee, the group

decided to rent more rooms and to put clothes in the rooms to make it

look like they were living there. VII RR 188-190. They would then leave

and come back the next morning for breakfast. VII RR 188-190; SX 33

(photographs). The group posed for photographs evidencing their post-

election stay at The Residence Inn. VII RR 188-198. The photos include

McDuffee posing as if reviewing documents because he was supposed to

be doing business in the district, people sitting in the lobby, people




                                   12
playing basketball, people holding up newspapers and mail to evidence

their post-election stay, clothes hanging in room closets. VII RR 192-195.

      After the civil lawsuit was filed in May 2010, Appellee, according to

Stillwell, changed his driver’s license to The Residence Inn as his

residence. VII RR 94-96. Appellee confirmed with Stillwell that he had

never changed his Pastoral Pond homestead exemption. VII RR 87.

Appellee also verified that he had registered Pastoral Pond as a voting

address for close to 20 years and that the majority of his personal

property was either at his house or at his business. VII RR 89-90.

Appellee told Stillwell that he had been trying to sell his home at Pastoral

Pond. VII RR 92. Stilwell testified that when he visited Appellee’s house

as part of his investigation for the civil trial, he did see a “for sale” sign

on the property. VII RR 103. At the time of trial, Appellee still owned the

property. VII RR 119.

      Bowlin testified that she issued a grand jury subpoena on The

Residence Inn for records of the ten voters during a period of 19 months

starting January 2010. VII RR 142-145; SX 19. All told, Appellee stayed

seventeen nights at The Residence Inn after the election. VII RR 146-149.




                                     13
The records did not show any other stays from June 15, 2010 through

July 26, 2011. VII RR 150.

V.       Statement of Facts Regarding Appellee’s Understanding of
         Relevant Election-Law Authorities.

         Appellee indicated that he had read the sources set out in the Grant

Letter prior to receiving the letter. IX RR 94-95. He noted that although

the Secretary of State opinion was about a Prairie View student, he

believed that the last sentence made it applicable to his situation: “These

principles apply equally to college students as well as other voters, and

no more can be required of them in order for them to register and vote in

the state of Texas.” IX RR 79. He believed that the first step, then, was

to register to vote. IX RR 79. Secondly, he knew that he would also have

to reside in the district. IX RR 80. Appellee interpreted this to mean not

that one had to have a specific dwelling or abode but, rather, that one

need only be a “community member.” IX RR 80. He also read Mills v.

Bartlett,6 which he understood to say that “bodily presence alone and

intention alone do not determine a residence, but when the two coincide

at that moment the residence is fixed and determined . . . [with] no



6
    377 S.W.2d 636 (1964).
                                       14
specific length of time for the bodily presence to continue.” IX RR 81. Once

someone has established a residence, then, he no longer has to be there.

IX RR 81. “[B]odily presence . . . just means I visited there.” IX RR 82.

Next, one needed the “the intention to create that residence for voting

purposes,” a right held equally by everyone, who were all treated the

same: “The important thing is that you decide. It’s you. You have the

opportunity to create the residence of your own desires.” IX RR 82-83.

     Appellee claimed that he had bodily presence in the RUD for twenty

years at the time he filled out his voter registration application on April

5, 2010 due to his activity within the RUD. IX RR 84; SX 7. However, on

the date he filled out his voter registration, he slept at his Pastoral Pond

residence. IX RR 84. He testified that he chose The Residence Inn because

it was close to his bank, the library, the community center where people

voted, the post office, and his favorite restaurant. IX RR 85. He said he

had been planning on selling his house. IX RR 85-87. His home was not

sold, and he was still living there. IX RR 117. The Residence Inn was also

close to his business, so he intended to have his residence for voting

purposes at The Residence Inn as long as he had the business. IX RR 89.




                                    15
     On May 7, 2010, the day before the election, Appellee checked in at

The Residence Inn, thus fulfilling the residency requirement. IX RR 113.

Residence meant “domicile” and “domicile meant “one’s home and fixed

place of habitation to which one intends to return after any temporary

absence.” IX RR 114. One does not lose his residency by going to another

place for “temporary purposes.” IX RR 116. Appellee testified that he

probably stayed sixteen or seventeen nights at The Residence Inn in the

three years after he filled out his voter registration application. IX RR

118. He believed that he was returning home when he returned to the

Pastoral Pond address “[m]ost of the time.” IX RR 118. All of the

remaining nights were spent at either his office or at Pastoral Pond. IX

RR 118.

     While analyzing the definition of “residence” in the election code,

i.e. domicile, one’s home or fixed place of habitation to which one intends

to return after any temporary absence, Appellee said that he interpreted

the word “habitation” to mean “what your habits are.” IX RR 119. And

he said, “My permanent habitation is where I go; where I am; what

district I’m in.” IX RR 121. Appellee testified that he considered The

Residence Inn to be his habitation, despite not sleeping there for over


                                    16
1200 nights since the time of his registration. IX RR 119-20. According to

Appellee, a “habitation” is not necessarily where you “live” or “sleep.” IX

RR 121. He agreed that “everybody has a right to go stay in a hotel

somewhere and overthrow a utility district” if they have “the bodily

presence and the intent.” IX RR 122. Appellee thought one could vote

wherever one “can establish residence for voting purposes” and that

“residency for voting purposes” means that same thing as “residency”

under the Election Code. IX RR 123-125, 139.

[White]:   [Showing him DX 2 (GA-0141)] Okay. So, residence for
           purposes both of registration and voting is defined to mean
           domicile, one’s home and fixed place of habitation to which
           one intends to return after a temporary absence. And it cites
           Texas Election Code Section 1.015(a) which we just looked at.
           So, tell me what difference there is between this fluffy concept
           of residence for voting purposes and the definition of residence
           that’s in the election code.

[Appellee]: Well, a fixed place of habitation means an area. It’s a district.
            It’s a locality.

[White]:   You’re not answering my question, Mr. Jenkins. What
           difference is there between the definition of residence for
           voting purposes and residence as defined in the election code,
           Section 1.015.

[Appellee]: That’s residence.

[White]:   It’s the same thing, isn’t it?

[Appellee]: Right. Right.

                                     17
[White]:   There’s no residence for voting purposes, is there? That’s not
           a different concept at all, is it?

[Appellee]: Well, residence has a different meaning depending on the
            contents.

[White]:   Residence for voting purposes is not a different term than
           residence under the election code, is it?

[Appellee]: I agree. I agree with that.

[White]:   And if we remember, if all else fails and we’re confused, we go
           back where to get our definition of residency?

[Appellee]: We go to the law and case history.

[White]:   Do we go to case history, Mr. Jenkins, or do we go to the
           election code?

[Appellee]: Well, I would assume we use the case history because that’s
            the – the Secretary of State opinion is full of it and that was
            given to me for advice.

[White]:   So again, residence shall be determined in accordance with
           the common-law rules as enunciated by the courts of this
           state, except as otherwise provided by this code, isn’t it, Mr.
           Jenkins?

[Appellee]: That’s correct.

[White]:   So, we come back where?

[Appellee]: You come to the election code but you get some advice from
            case history.

[White]:   You come back here but you get some advice; is that right? Is
           that what that says?

                                     18
[Appellee]: No, but that’s what I – how I interpret it.

[White]:   So, is the law that the jury should follow in this case the law
           of Jim Jenkins?

[Appellee]: No, it’s not. But I think people, when they go to vote, they got
            to find out if they’re the proper resident in a court of law like
            I’m doing today.

[White]:   So this is the proper procedure to figure out your residence is
           that a [sic] what you’re suggesting?

[Appellee]: No, I don’t think it’s the proper procedure at all. I think the
            law should be clear enough so someone can decide what
            residence means and so they can make the proper
            determination for themselves. And I happen to believe that
            the law is clear.

[White]:   You do believe the law is clear?

[Appellee]: Because it’s vague.

[White]:   And so, the law is clear because it’s vague; is that right?

[Appellee]: The definition is vague and intentionally so.

[White]:   So it’s clear because it’s vague?

[Appellee]: It’s clearly vague. And that’s done intentionally so that the
            individual can determine where he wants to vote. He gets one
            vote. He gets to decide. Not the state. Not my next-door
            neighbor, you know. Not some government entity in
            Washington. I do. It’s one of your fundamental rights.

IX RR 125-127.



                                     19
     The law is vague,” according to Appellee, in the sense that “‘place’”

means “locality,” the RUD, for example, “where you spend your time.

Where is your – what are you habits.” IX RR 129. “Habitation” did not

mean “dwelling” or “abode,” he said. IX RR 130. Appellee thought one

could have a residency “for voting purposes,” another for obtaining a

driver’s license, another for being eligible for in-state tuition, and yet

another for eligibility to run for office. IX RR 140. Appellee thought that

one could live in a community but have a home somewhere else. IX RR

141. Appellee also added that his home at Pastoral Pond was his

residency for “food and shelter purposes.” IX RR 143. Appellee claimed

the RUD was his habitation even though he also admitted that he did not

know it existed for most of the 20 years he lived in Montgomery County.

IX RR 147. Further, although Appellee continuously referred to The

Residence Inn as his “residence for voting purposes,” he admitted on

cross-examination that residence for voting purposes is not a different

term than residence under the election code. IX RR 125. Despite this

admission, Appellee testified that for the purposes of voting in May 2010,

his residence was The Residence Inn. IX RR 142. Further, because there

was no durational requirement on residence, his residence for the


                                    20
purposes of food and shelter in May 2010 was also the Residence Inn. IX

RR 143. He arrived at this conclusion based on his belief that “the law is

clear” in that the definition of residence is intentionally vague so that the

individual can determine where he wants to vote. IX RR 126-127.

      Last, Appellee testified that a paragraph in the election code

pertaining to mistaken residence applied to his case, despite the fact that

he also believed that he did not make a mistake on his residence and, in

fact, “got it right.” IX RR 151-52. Appellee firmly believed that he voted

lawfully in May of 2010. IX RR 152.

VI.   The Mistake of Law Instruction.

      Appellee asked Judge Stevens for Section 8.03 Mistake of Law

instruction at the charge conference. IX RR 166-171; CR 318-322;

Appendix B. In rejecting the request, Judge Stevens said:

            Number one, as far as Section 8.03 is concerned, the
      defendant has flatly challenged throughout this trial that he
      committed the conduct charged. He has stood by his belief and
      his contention that he was eligible to vote. And that is one of
      the elements and that is being challenged. It is not an element
      that he is admitting to. And for that reason, the mistake of
      law defense is not going to be allowed.

IX RR 169; Appendix C. He also added:

           However, as this Court understands the theory of the
      Defense case through its presentation and arguments, this

                                     21
     mistake of law, that Mr. Heath is submitting, is actually
     intertwined in the challenge to the element that the State has
     to prove and that is that the defendant knew he was ineligible
     to vote. He voted in an election that he knew he was not
     eligible to vote. He’s challenging that element and he will
     certainly be – he’s entitled to do that. And that argument and
     presentation inherent within this proposed mistake of law
     this Court looks at is actually a challenge on the element of
     the offense. He’s denying he committed the offense; and that
     is the battleground of this case is the defendant’s – whether
     the State can prove beyond a reasonable doubt the defendant
     knew that he acted illegally in voting in the election.

IX RR 169.

                   SUMMARY OF THE ARGUMENT

     The court of appeals erred in holding that Section 8.03 Mistake of

Law was the legal analogue to section 8.02 of the Penal Code, mistake of

fact. (Section 8.02 Mistake of Fact). The court below relied on dictum from

a case out of this Court that, if properly analyzed, supports the State’s

argument here – namely that statutory affirmative defenses are in the

nature of confession and avoidance. An understanding of how Section

8.03 Mistake of Law works and when it applies has to begin with

recognizing that it is labeled an “affirmative defense.” Section 8.03

Mistake of Law on its face is subject to confession and avoidance and its

legislative history indicates that it is not the legal equivalent to Section

8.02 Mistake of Fact. With the proper understanding of how and when

                                    22
Section 8.03 Mistake of Law applies, the record plainly indicates that

Appellee did not qualify for the instruction since in addition to having

failed to admit to the conduct charged, he failed to provide the sorts of

authorities the statute requires.

     Additionally, the sort of mistake-related defensive instruction

Appellee asked for, a defense negating the culpable mental state, appears

to be completely inapplicable given the State’s burden of proving that he

was aware of the nature and circumstances of his residency. And even if

Section 8.03 Mistake of Law does in fact tend to negate the culpable

mental state necessary for the commission of the offense, the failure to

give the instruction was not in error since the reasonable-doubt

instruction provided a more favorable instruction and actually

encompassed the defensive theory the Appellee believes was missing

from the charge.

                              ARGUMENT

I.   The Trial Court Did Not Err in Failing to Provide the Section 8.03
     Instruction.

     A.    Standard of Review.

     Examination of charge error begins with determining whether

there was in fact error in the charge. See Posey v. State, 966 S.W.2d. 57,

                                    23
60 (Tex. Crim. App. 1998) (citing Almanza v. State, 686 S.W.2d 157, 171-

174 (Tex. Crim. App.1984) (op. on reh’g)). Section 8.03 of the Penal Code

provides an affirmative defense. Tex. Penal Code § 8.03 (West 2010)

(Section 8.03 Mistake of Law); Appendix F. “The issue of the existence of

an affirmative defense is not submitted to the jury unless evidence is

admitted supporting the defense.” Id. § 2.04(c). A defendant is entitled to

a defensive instruction if it is supported by the evidence “even if the

defense is weak or contradicted, and even if the trial court is of the

opinion that the evidence is not credible.” Shaw v. State, 243 S.W.3d 647,

658 (Tex. Crim. App. 2007). “But the evidence must be such that it will

support a rational jury finding as to each element of the defense.” Id. “In

determining whether a defense is thus supported, a court must rely on

its own judgment, formed in the light of its own common sense and

experience, as to the limits of rational inference from the facts proven.”

Id. This threshold inquiry by the trial court judge “serves to preserve the

integrity of the jury as the factfinder by ensuring that it is instructed as

to a defense only when, given the evidence, that defense is a rational

alternative to the defendant’s criminal liability.” Id. Whether a defense




                                    24
is supported by the evidence is a sufficiency question reviewable on

appeal as a question of law. Id.

     A decision not to include a defensive issue in a jury charge is

reviewed for an abuse of discretion. See Love v. State, 199 S.W.3d 447,

455 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Westbrook v.

State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000)). A trial court does not

abuse its discretion when its decision is within the zone of reasonable

disagreement. See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App.

2007). Further, the trial court’s decision will be upheld on appeal if it is

correct on any theory of law applicable to the case. See Romero v. State,

800 S.W.2d 539, 543 (Tex. Crim. App. 1990). This principle holds true

even where the trial court has given an erroneous legal reason for its

decision. See id.

     B.    Affirmative    Defenses   Are   Subject    to   Confession and
           Avoidance.

     In addressing the propriety of Judge Stevens’s ruling, the court of

appeals does not begin with addressing the application of Section 8.03

Mistake of Law; instead, the analysis begins with Section 8.02 Mistake




                                     25
of Fact,7 a statutory defense that was not an issue at trial. The court of

appeals found that Section 8.02 Mistake of Fact was an “affirmative

defense,” despite its designation in the Penal Code to the contrary. This

particular finding was a preliminary but necessary step in reversing

Judge Stevens because if Section 8.02 Mistake of Fact is an affirmative

defense that plainly operates to negate the culpable mental state, then

Section 8.03 Mistake of Law, which is plainly labeled an “affirmative

defense,” might also operate to negate the culpable mental state. The

court of appeals, in other words, believed that Section 8.03 Mistake of

Law was the legal analogue to Section 8.02 Mistake of Fact. This finding

is fundamentally flawed due, in part, to the appellate court’s reliance on

dictum, failure to recognize the difference between a “true affirmative

defense” and a general defense, and the court’s confusion over the

difference between a mistake of law that tends to negate a mental state

and a mistake of law that is in the nature of confession and avoidance.

      Appellee provided an instruction that appears to track the pattern

jury charge set out in the Texas Criminal Pattern Jury Charges:



7
 Tex. Penal Code Ann. § 8.02 (West 2010) (Section 8.02 Mistake of Fact); Appendix
F.


                                       26
Defenses. See IX RR 166-171 (charge conference); CR 318-322 (requested

charge citing Texas Criminal Pattern Jury Charges, State Bar of Texas

2010); § B12.2, at 164-167 (2010); Appendix B. In rejecting the request,

Judge Stevens believed that Appellee was not entitled to the instruction

since he failed to admit to committing the conduct charged. IX RR 169:

Appendix C. He also noted that Appellee’s mistake of law defense was

“actually intertwined in the challenge to the element that the State has

to prove and that is that the defendant knew he was ineligible to vote.”

IX RR 169.

     First, Judge Stevens was right about confession and avoidance. In

Meraz v. State, this Court said:

     At the foundation of every affirmative defense is the practical,
     if not technical, necessity of the defendant acknowledging he
     committed the otherwise illegal conduct. This State
     recognizes only four affirmative defenses: Defense to Criminal
     Responsibility of Corporation or Association (§ 7.24 Tex. Penal
     Code), Insanity (§ 8.01 Tex. Penal Code), Mistake of Law (§
     8.03 Tex. Penal Code), and Duress (§ 8.05 Tex. Penal Code).

785 S.W.2d 146, 153 (Tex. Crim. App. 1990) (emphasis added). An

affirmative defense is “defined, in part, as meaning a new matter,

assuming the complaint to be true, which constitutes a defense to it.”

Juarez v. State, 308 S.W.3d 398, 402-403 (Tex. Crim. App. 2007) (citing


                                   27
Kimbro v. State, 157 Tex. Crim. 440, 249 S.W.2d 919, 919 (Tex. Crim.

App. 1952)) (emphasis in orig.); Barnette v. State, 709 S.W.2d 650, 651-

652 (Tex. Crim. App. 1986) (every defense listed in chapters 8 and 9 of

Penal Code except Section 8.02 Mistake of Fact “admits to having

committed the culpable conduct charged, but asserts he should be found

not guilty because his action was somehow justified or excusable”); Miller

v. State, 660 S.W.2d 95, 97 (Tex. Crim. App. 1983) (“all statutory

affirmative defenses generally apply to justify his admitted participation

in the act itself”); DeHam v. State, 389 S.W.2d 955, 956 (Tex. Crim. App.

1965) (“Appellant’s testimony at most constituted no more than a denial

of the truth of the testimony of the witnesses named and is not an

affirmative defense under the holding in Kimbro v. State, 157 Tex. Crim.

R. 438, 249 S.W.2d 919.”).

     Second, Judge Stevens was right about Appellee’s argument

concerning the negation of the element of the offense: any defense

premised on mistake of law negating the culpable mental state was

“intertwined in the challenge to the element that the State has to prove,”

thus, included in the charge. Even if one assumes for the sake of

argument that Section 8.03 Mistake of Law is the legal analogue to


                                   28
Section 8.02 Mistake of Fact, it was not error to deny the requested

instruction because the jury charge adequately covered Appellee’s

mistake of law negating an element of the offense. See Bruno v. State,

845 S.W.2d 910, 913 (Tex. Crim. App. 1993) (plurality op. of White, J.).

      Third, the majority’s approach in fusing the two defenses was

erroneous. While acknowledging that Meraz stood for the proposition

that affirmative defenses were subject to the doctrine of confession and

avoidance, the court of appeals believed that this Court in Juarez had

steered away from its declaration that “every affirmative defense” was in

the nature of confession and avoidance: “The Court of Criminal Appeals

has since observed, however, that ‘the doctrine does not apply when the

defensive issue, by its terms, negates the culpable mental state,’ citing as

an example ‘[t]he affirmative defense of mistake of fact.’” Jenkins, 2015

Tex. App. LEXIS 5667, at *46 (quoting Juarez, 308 S.W.3d at 402).8



8
 This reasoning that not every affirmative defense was in the nature of confession
and avoidance was also based in part on Appellee’s argument in the court of appeals
that this Court in Willis v. State corrected a similarly overbroad statement in Sanders
v. State to the effect that “all defenses require the defendant to admit commission of
the offense.” See 790 S.W.3d at 314 (quoting 707 S.W.2d 78, 81 (Tex. Crim.
App.1986)). But this Court in Willis identified only one defense that did not require
the defendant to admit to the commission of the offense: Section 8.02 Mistake of Fact.
See id. at 314. Neither Willis nor Juarez undermine this Court’s statement in Meraz
that “every affirmative defense” is in the nature of confession and avoidance.


                                          29
       As the dissent pointed out there are no Texas cases that might

apply when one asked for an instruction “that would negate the culpable

mental state of the offense.” See Jenkins, 2015 Tex. App. LEXIS 5667, at

*80.9 The dissent noted that federal courts dealing with good-faith

mistake of law were split on whether the instruction was necessary. See

id. at **80-84 (noting that federal courts often find argument concerning

good-faith mistaken belief about issues of law “redundant” in fraud cases,

for example, “because such a belief is incompatible with the required

specific intent to deceive”) (citations omitted). A non-Penal Code

instruction concerning a good-faith mistaken belief of law would not be a

valid defense. See Sanders v. State, 707 S.W.2d 78, 81 (Tex. Crim. App.

1986). The dissent also noted that this Court had reached “conflicting

conclusions” regarding whether it was error to deny a Section 8.02

Mistake of Fact instruction based on this same apparent redundancy or

that the defense was subsumed within the reasonable doubt charge. See

Jenkins, 2015 Tex. App. LEXIS 5667, at **81-82 (citations omitted).



9
 As discussed below, the Committee responsible for the Texas Pattern Jury Charge
suggests, given the legislative history of the enactment of Section 8.03 Mistake of
Law, that defendants should “perhaps” avoid raising a mistake of law defense
premised on negating the culpable mental state. See Texas Criminal Pattern Jury
Charges, State Bar of Texas 2010; § B12.2, at 16; Appendix G.
                                        30
         The problem with the majority’s position – and the reason why

there were no cases on point – is the erroneous proposition that Section

8.02 Mistake of Fact is an “affirmative defense,” according to Juarez.

Accordingly, if it is an affirmative defense and it applies to negate the

culpable mental state, then Section 8.03 Mistake of Law, which is

explicitly labeled an “affirmative defense,” might also apply when one is

attempting to negate the culpable mental state. But this Court’s

reference in Juarez to “[t]he affirmative defense of mistake of fact” was

clearly dictum.10 In citing Section 8.02 Mistake of Fact as an “example”

of an “affirmative defense,” this Court cited Granger v. State, 3 S.W.3d,

36, 41 (Tex. Crim. App. 1999) and Jackson v. State, 646 S.W.2d 225, 227

(Tex. Crim. App. 1983). See Juarez, 308 S.W.3d at 402. While both

Granger and Jackson involved a Section 8.02 Mistake of Fact instruction,

neither case holds that it is an “affirmative defense.” This Court in both

cases used phrases like “an affirmative mistake of fact instruction” or “an

affirmative instruction on mistake of fact,” see Granger, 3 S.W.3d at 37,



10
     See Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex. App. – Houston [14th Dist.] 1999,
pet. denied) (“Dictum is an observation or remark made concerning some rule,
principle, or application of law suggested in a particular case, which observation or
remark is not necessary to the determination of the case.”) (quoting BLACK’S LAW
DICTIONARY 409 5th ed. (1979)).
                                          31
38, or “an affirmative charge on a defensive issue” or “an affirmative

submission of a defensive charge,” see Jackson, 646 S.W.2d at 225, but

nowhere does the Court hold – or even attempt to say – that Section 8.02

Mistake of Fact is an “affirmative defense.” This Court has noted in the

past that “only the legislature can establish defenses and affirmative

defenses to criminal offenses” so this Court did not mean to assign the

affirmative defense designation to Section 8.02 Mistake of Fact. See

Giesberg v. State, 984 S.W.2d 245, 249-250 (Tex. Crim. App. 1998) (citing

Willis, 790 S.W.2d at 314).

     The confusion regarding affirmative defenses may be tied to a

distinction between what is considered a “true affirmative defense,”

which is in the nature of confession and avoidance, and other defenses

that arise once the defendant introduces some evidence tending to negate

only a mental element:

     A true affirmative defense is a justification or excuse
     independent of the elements of the offense. It is in the nature
     of a “confession and avoidance” defense. Even if the state
     proves all elements of the offense beyond a reasonable doubt,
     the State may not punish the defendant who meets the
     burden of proof on an affirmative defense because commission
     of the offense was justified. Since an affirmative defense shifts
     the burden of persuasion to the defendant on a particular
     issue, it must meet the strict requirements of the Due Process
     Clause. The threshold question we consider is under what

                                    32
      circumstances may the burden of persuasion be shifted to the
      defendant without violating due process?
      ...
      An affirmative defense which negates an essential element
      (which by definition would not be a true affirmative defense)
      requires the defendant to prove innocence on that issue by a
      preponderance of the evidence. Invariably the courts have
      held that when the burden of persuasion shifts to the
      defendant on an element of the offense, the shift is a clear
      violation of due process which renders the trial fundamentally
      unfair. See Hicks v. Feiock, 485 U.S. 624, 108 S. Ct. 1423, 99
      L. Ed. 2d 721 (1988).

Alford v. State, 808 S.W.2d 581, 585 (Tex. App. – Dallas 1991), aff’d by,

866 S.W.2d 619 (Tex. Crim. App. 1993); see also Dixon v. United States,

548 U.S. 1, 6-7 (2006) (defenses like necessity and duress do not “negate

a defendant’s criminal state of mind when the applicable offense requires

a defendant to have acted knowingly or willfully; instead, it allows the

defendant to ‘avoid liability . . . because coercive conditions or necessity

negates a conclusion of guilt even though the necessary mens rea was

present’” quoting Bailey v. United States, 524 U.S. 184, 402 (1998)).11




11
  There also seems to be a distinction between “true defense,” “affirmative defenses,”
and defenses that arise “when the defendant contests a specific element of the state’s
proof.” See 5-122 Texas Criminal Practice Guide § 122.01; Appendix H. Both “true
defenses” and “affirmative defenses” require the defendant to admit commission of
the act but seek to excuse or justify commission of the act. See id. Unlike Section 8.03
Mistake of Law, Section 8.02 Mistake of Fact challenges “a specific element of the
state’s proof.” See id.
                                          33
     Section 8.02 Mistake of Fact cannot be an “affirmative defense”

shifty the burden to the defendant to negate an element of the offense

violates due process. See Lowry v. State, 692 S.W.2d 86, 87 (Tex. Crim.

App. 1985) (citing In re Winship, 397 U.S. 358, 364 (1970) and Mullaney

v. Wilbur, 421 U.S. 684, 701-702 (1975)). In Lowry, this Court found the

affirmative-defense provision of the law sanctioning criminal nonsupport

unconstitutional because it shifted an element of the offense to the

defendant. See id. at 87.

     In short, this Court knows that affirmative defenses do not involve

the negation of any element of the offense. The court of appeals erred in

relying on dictum to equate Section 8.02 Mistake of Fact with Section

8.03 Mistake of Law. Unless Section 8.03 by its terms negates the

culpable mental state required for the commission of the offense and, as

a consequence, is not in the nature of confession and avoidance, the court

of appeals should have affirmed the ruling of the trial court and affirmed

the judgment.

     C.    Section 8.03 Mistake of Law Is In The Nature of Confession
           and Avoidance.

     An understanding of whether a Section 8.03 Mistake of Law is

subject to confession and avoidance has to start with acknowledging that

                                   34
it is labeled an “affirmative defense.” As noted above, a “true” affirmative

defense is in the nature of confession and avoidance. See Alford, 808

S.W.2d at 585. This Court noted the civil-law foundations of the defense

in Juarez and used the phrases “confession and avoidance” and

“affirmative defense” as if one described the other. See Juarez, 308

S.W.3d at 402-403 (citing Kimbro, 249 S.W.2d at 919 and Yuval Sinai,

The Doctrine of Affirmative Defenses in Civil Cases – Between Common

Law and Jewish Law, 34 N.C.J. Int’l & Comm. Reg. 111, 117-18 (2008)

(hereinafter “The Doctrine of Affirmative Defenses in Civil Cases” ).12

Therefore, by labeling Section 8.03 Mistake of Law an affirmative

defense, the Texas Legislature intended to establish not only the burdens

of proof but also to establish pleading requirements necessary to invoke

the defense, which would include confession and avoidance.


12
  Sinai noted, “Affirmative defense is the modern equivalent of the common law plea
in confession and avoidance.” See The Doctrine of Affirmative Defenses in Civil Cases,
at 114. He goes on to explain how the defense works:

      An affirmative defense overcomes the claim without regard to whether
      the claim is true and could be fully proven. An affirmative defense is one
      that “avoids” rather than “denies” the truth of a plaintiff’s allegation.
      For example, the plaintiff says, “You did it,” and the defendant replies,
      “Maybe, I did it, but I win anyway, because you or I did (or failed to do)
      something too.” The “something too” is the affirmative defense.

Id. at 115.

                                         35
      As the dissenting opinion in Jenkins pointed out, the majority has

confused a mistake of law tending to negate a mental state and a mistake

of law that is in the nature of confession and avoidance:

     There are two different kinds of mistakes of law, however,
     that do provide a defense: (1) a mistake that negates the
     mental state required to prove the particular offense in
     question; and (2) a reasonable belief, in reliance on certain
     official statements that conduct undertaken with the required
     mental state does not violate the criminal law.

2015 Tex. App. LEXIS 5667, at **74-75 (citing 1 Wayne R. LaFave,

Substantive Criminal Law § 5.6(a), at 394-397 (2d ed. 2003)); Appendix I

(hereinafter “Substantive Criminal Law”).

     LaFave notes that there is considerable “confusion” about the

application of the mistake defenses. See Substantive Criminal Law, at

394-397 (discussing difference between mistake negating legal element

like intent to steal with a legal excuse where all the elements of the

offense are established and not contested). LaFave recognizes that there

are mistakes of law or fact that tend to negate the “mental state required

to establish a material element of the crime.” Id. at 394-396. One, then,

who takes another’s property mistakenly or intentionally believing he

owned the property is not guilty of the crime of theft because his mistake

preempted the formation of larcenous intent. See id. at 395-396. In the

                                    36
second example, while “ownership” connotes a sense of legal entitlement,

it does not mean that a mistake about ownership is a mistake of law – it

is a mistake of fact. See id. at 396; see also Texas Criminal Pattern Jury

Charges, State Bar of Texas 2010); § B12.2, at 162 (most jurisdictions

treat mistakes of fact and law and Texas would call these mistakes

“failure of proof” mistakes) (Appendix G). LaFave recognizes a third

category of defense where the defendant held the culpable mental state

needed to commit the offense but sought to excuse the offense because he

reasonably believed “his conduct is not proscribed by law and that belief

is attributable to an official statement of the law or to the failure of the

state to give fair notice of the proscription.” See Substantive Criminal

Law at 396-397 (defendant intended to take the “umbrella he knew was

owned by another”).

     Section 8.03 Mistake of Law is this third type of defense: “the actor

reasonably believed that his conduct charged [taking property he knew

was owned by another or voting in an election he knew he was not a

resident] did not constitute a crime” relying on the types of authorities

that could in fact authorize this conduct. As the dissent points out, many

states and federal courts recognize a similar governmental-estoppel


                                    37
defense grounded in due process. See Jenkins, 2015 Tex. App. LEXIS

5667, at *77 (citing Commonwealth v. Kratas, 564 Pa. 36, 764 A.2d 26,

27-33 (Pa. 2001)). The defense requires “an affirmative representation

that certain conduct is legal” based on the representation of an official or

a body charged by law with responsibility for defining permissible

conduct respecting the offense at issue, and actual and good-faith

reliance. See 764 A.2d at 32-33 (collecting cases). The estoppel defense is

grounded on principles of fairness when a governmental official has

advised someone that his “particular action was authorized or not

criminal.” See People v. Studifin, 504 N.Y.S.2d 608, 610 (Sup. Ct. 1986).

“Thereafter for the State to prosecute someone for innocently acting upon

such mistaken advice is akin to throwing water on a man and arresting

him because he’s wet.” See id.; see also Cox v. Louisiana, 379 U.S. 559

(1965) (where police official informed protesters they could picket near

courthouse, state could not prosecute those protestors for violating

statute prohibiting demonstrations near courthouse).

     This Court has noted in the past that parties may attempt to raise

certain statutory defenses but fail to do so because they were simply

attempting to negate intent to commit the crime. See Shaw, 243 S.W.3d


                                    38
at 659 (citing as examples Young v. State, 991 S.W.2d 835, 838 (Tex.

Crim. App. 1999) (necessity) and Ex parte Nailor, 149 S.W.3d 125, 132–

34 (Tex. Crim. App. 2004) (self-defense)). A statutory mistake of law

defense does not apply in this case.

      Legislative history confirms that Section 8.03 Mistake of Law does

not apply when one is attempting to negate the mental element.13 For

more than a century, the Texas Penal Code specifically prohibited the

defense of mistake of law while providing one for a mistake of fact. See

Tex. Penal Code art. 45 (1879) (“No Mistake of Law”), 46 (1879) (“Mistake

of Fact”). The law prior to the adoption of the revised Penal Code in 1973

read: Mistake of law. –No mistake of law excuses one committing an

offense.” Tex. Penal Code, art. 40 (1948) (emphasis in orig.). In 1973,

Texas enacted sections 8.02 and 8.03 of the Penal Code. See Act of May

23, 1974, 63rd Leg., R.S., ch. 399, §1, 1973 Tex. Gen. Laws 883, 896-897.

Section 2.04 MPC served as the template to Sections 8.02 and 8.03. See



13
  While acknowledging that the “parties” had “conflicting interpretations of the
statute based on the difference between the language of the Model Penal Code and
Penal Codes sections 8.02 and 8.03,” the majority for the court of appeals opted not
to look at the legislative history believing the legislature’s intent was “unambiguous.”
Jenkins, 2015 Tex. App. LEXIS 5667, at *10 n.11. A presumption of ambiguity exists,
though, when the “parties [] take polar opposite positions.” See Ex parte Canady, 140
S.W.3d 845, 849 (Tex. Crim. App. 2004) (citations omitted).
                                          39
Thompson v. State, 236 S.W.3d 787, 796 (Tex. Crim. App. 2007)

(discussing § 2.04 MPC). Section 2.04 MPC reads in relevant part:

     (1) Ignorance or mistake as to a matter of fact or law is a
     defense if:
         (a) the ignorance or mistake negatives the purpose,
         knowledge, belief, recklessness or negligence required
         to establish a material element of the offense; or
         (b) the law provides that the state of mind established
         by such ignorance or mistake constitutes a defense.
         ...
     (3) A belief that conduct does not legally constitute an offense
     is a defense to a prosecution for that offense based upon such
     conduct when:
     ....

§ 2.04 MPC, p.267 (emphasis added).

     Notably absent from Section 8.03 Mistake of Law is the language

appearing in Section 2.04(1) MPC to the effect that a mistake of law is a

defense if it “negatives the purpose, knowledge, belief, recklessness or

negligence required to establish a material element of the offense.” See §

2.04(1). That negation language does, though, appear in Section 8.02

Mistake of Fact, which includes “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.”

     As this Court noted in Lowry, an affirmative defense cannot burden

the defendant with proving an element of the offense. See 692 S.W.2d at

                                    40
87. An affirmative defense is constitutional because it does not impose a

burden on the defendant to negate an element of the offense. See Smith

v. United States, 133 S. Ct. 714, 719 (2013) (citing Martin v. Ohio, 480

U.S. 228, 237 (1987) (Powell, J., dissenting)) (emphasis added). This court

in Cornet held that the “medical-care defense” was subject to the

confession and avoidance doctrine because the defense “does not negate

any element of the offense, including culpable intent; it only excuses what

would otherwise constitute criminal conduct.” See Cornet v. State, 359

S.W.3d 217, 224-225 (Tex. Crim. App. 2012) (emphasis added).

     As this Court has observed, issues related to redundancy and

necessity arise when juries are given reasonable doubt instructions that

subsume defensive theories tending to negate intent. See Okonkwo v.

State, 398 S.W.3d 689, 695-696 & nn.5-6 (Tex. Crim. App. 2013).

Redundant or unnecessary instructions also risk affecting the

presumption of innocence:

     The reason for treating a defense that negates an element of
     the crime differently from other affirmative defenses is plain.
     If the jury is told that the prosecution has the burden of
     proving all the elements of a crime, but then also is instructed
     that the defendant has the burden of disproving one of those
     same elements, there is a danger that the jurors will resolve
     the inconsistency in a way that lessens the presumption of
     innocence. For example, the jury might reasonably believe

                                    41
     that by raising the defense, the accused has assumed the
     ultimate burden of proving that particular element. Or, it
     might reconcile the instructions simply by balancing the
     evidence that supports the prosecutor’s case against the
     evidence supporting the affirmative defense, and conclude
     that the state has satisfied its burden if the prosecution’s
     version is more persuasive. In either case, the jury is given
     the unmistakable but erroneous impression that the
     defendant shares the risk of nonpersuasion as to a fact
     necessary for conviction.

Martin, 480 U.S. at 237-238 (Powell, J., dissenting). The provision of an

affirmative defense tending to negate the culpable mental state

necessary for the commission of the offense would be unconstitutional.

Statutes have to be interpreted to avoid constitutional infirmities. See

Boykin v. State, 818 S.W.2d 72, 785-786 (Tex. Crim. App. 1991).

     Section 8.03 Mistake of Law on its face requires the defendant to

admit to having engaged in the “conduct charged” under the mistaken

belief that his conduct was not criminal. The operative phrases are (1)

“the actor reasonably believed,” (2) “the conduct charged” (3) “did not

constitute a crime.” Tex. Penal Code § 8.03(b). Section 8.03 Mistake of

Law applies when the defendant formed a belief, such as would be held

by an ordinary and prudent man in the same circumstances, that

committing the act with the requisite mental state was not a crime. This

belief that his conduct was not criminal has to be attributable to

                                   42
reasonable reliance on certain written authoritative sources, like an

agency charged with interpreting the law or a judicial opinion

interpreting the law. See Tex. Penal Code Ann. § 8.03(d)(1)-(2).

Therefore:

      Under the narrow exception of Subsections (b)(1) and (b)(2), a
      cafe owner prosecuted for selling beer for off-premises
      consumption could defend on the basis of a grant of
      permission from the Alcoholic Beverage Commission; and a
      business could defend against an antitrust prosecution on the
      basis of a court opinion declaring that the practice in question
      did not constitute a monopoly.

Searcy & Patterson, Practice Commentary to Section 8.03, 1 Tex. Penal

Code Ann. 217, 220 (Vernon 1974)). The café owner would acknowledge

that he sold beer off-premises (conduct charged) but claim “I did so

because the TABC said I could” or the business owner would acknowledge

that he conspired with competitors to fix prices (conduct charged) but

“The Supreme Court said I could.”

      There is very little difference between the wording of Section 8.03

Mistake of Law and other affirmative defenses recognized as confession

and avoidance.14 The defense of insanity reads, “It is an affirmative


14
   There are no cases addressing whether Section 7.24 Defense to Criminal
Responsibility of Corporations or Associations is subject to confession and avoidance
but it is a statutory affirmative defense and it appears to apply when the corporation
is not contesting whether the offense occurred. Section 7.24 of the Penal Code
                                         43
defense to prosecution that, at the time of the conduct charged, the actor,

as a result of severe mental disease or defect, did not know that his

conduct was wrong.” Tex. Penal Code § 8.01. Insanity is subject to

confession and avoidance. See Ruffin v. State, 270 S.W.3d 586 (Tex. Crim.

App. 2009). The defense of duress reads, “It is an affirmative defense to

prosecution that the actor engaged in the proscribed conduct because he

was compelled to do so by threat of imminent death or serious bodily

injury to himself or another. Tex. Penal Code Ann. § 8.05 (West 2010).

Duress is subject to confession and avoidance. Rodriguez v. State, 368

S.W.3d 821, 824 (Tex. App. 2012, pet. ref’d). There is no reason to believe

that the Texas Legislature intended any other meaning for Section 8.03

Mistake of Law. All of these defenses do not undermine the elements of

the offense but excuse or justify what would otherwise be unlawful.

      As the dissent pointed out it may be unnecessary to decide whether

Section 8.03 Mistake of Law is subject to confession and avoidance



provides “an affirmative defense to prosecution of a corporation under Section
7.22(a)(1) or (a)(2) that the high managerial agent having supervisory responsibility
over the subject matter of the offense employed due diligence to prevent its
commission.” (West 2010). The statute “on its face” does not attempt to negate a
mental element of the offense but instead provides a “due diligence” defense, which
is a defense designed not to contest the commission of the offence but excuse the
commission by explaining that some “high managerial agent” did all he or she could
to “prevent its commission.” See Model Penal Code § 2.07(5).
                                         44
because the instruction Appellee provided Judge Stevens “would have

submitted the defense as one of confession and avoidance.” See Jenkins,

2015 Tex. App. LEXIS 5667, at *84.

     Judge Stevens instructed the jury in part as follows:

     A person commits the offense of illegal voting if he votes . . . in
     an election in which the person knows the person is not eligible
     to vote.
     ...
     To be eligible to vote in an election of this state, a person must .
     . . be a resident of the territory covered by the election for the
     office or measure on which the person desires to vote . . . .

     “Residence” means domicile, that is, one’s home and fixed place
     of habitation to which one intends to return after any temporary
     absence. Residence shall be determined in accordance with the
     common-law rules as enunciated by the courts of this state,
     except as otherwise provided by the Texas Election Code . . . .

     Now if you find from the evidence beyond a reasonable doubt
     that . . . [the defendant did] vote in an election . . . when the
     defendant knew he was not eligible to vote because he knew
     he did not reside in the precinct in which he voted, then you
     will find the defendant guilty of voting illegally as charged in
     the indictment.

Id. at **71-72 (emphasis in orig.); Appendix J (charge).

     Appellee asked Judge Stevens to instruct the jury with this:

     A person’s conduct that would otherwise constitute the crime
     of illegal voting is not a criminal offense if the person
     reasonably believed as a result of mistake of law that the
     conduct charged did not constitute a crime and that he acted


                                    45
     in reasonable reliance on [an official statement or written
     interpretation of the law meeting certain requirements].

     ...

     To decide the issue of mistake of law, you must determine
     whether the defendant has proved, by a preponderance of the
     evidence, the following three elements:

     1. The defendant, before or during his conduct, considered the
     law applicable to his conduct and mistakenly concluded the
     law did not make the conduct a crime; and

     2. The defendant’s belief was reasonable; and

     3. The defendant reached his belief in a reasonable reliance
     on [an official statement or written interpretation of the law
     meeting certain requirements].

Id. at *72 (emphasis in orig.); Appendix B.

     The “conduct charged” was provided by the charge itself: Appellee

was charged with voting in an election in which he “knew he was not

eligible to vote, to wit: Defendant voted in the May 8, 2010 Woodland

Road Utility District Board of Directors election, when he knew he did

not reside in the precinct in which he voted.” See CR at 11. To be entitled

to the defensive instruction, then, Appellee would have had to have

acknowledged that he believed voting in an election in which he knew he

did not reside was not a crime, and he formed that belief in reliance on

authorities that could sanction that conduct.

                                    46
     The majority of the court of appeals found this reading flawed. See

Jenkins 2015 Tex. App. LEXIS 5667, at *49. But this conclusion rests on

a fundamental misunderstanding of Section 8.03 Mistake of Law and

fails to acknowledge that Appellee provided an instruction as one

requiring confession and avoidance. The defendant in the following cases

argued that the Section 8.03 Mistake of Law defense was warranted

because the law he relied on authorized what would otherwise be

unlawful conduct. Green v. State, 829 S.W.2d 222, 222-223 (Tex. Crim.

App. 1992) (citing Taylor v. Taintor, 83 U.S. (16 Wall.) (1873) as authority

for his belief that “common law sureties had the right to arrest principals

without an arrest warrant and likened such right to that of a sheriff

arresting an escaping prisoner”); Austin v. State, 541 S.W.2d 162, 162

(Tex. Crim. App. 1976) (citing Taylor as authority that “the law

authorized a surety to arrest his defaulting principal without warrant,

and that it was customary for bail bondsmen to do so”); State v. DeRoach,

458 S.W.3d 696, 697, 701 (Tex. App. – San Antonio 2015, pet. ref’d) (tow

truck driver was accused of overcharging in violation of city ordinance

claimed reliance on opinion of Attorney General to effect that city

ordinance was preempted by state law); Plummer v. State 426 S.W.3d


                                    47
122, 124 (Tex. App. – Houston [1st Dist.] 2012, pet. ref’d), aff’d as

reformed on other grounds, 410 S.W.3d 855 (Tex. Crim. App. 2013)

(defendant charged with felon in possession of firearm claimed he relied

on peace-officer exception for belief that he could carry firearm); Hefner

v. State, 735 S.W.2d 608, 610-611, 625-626 (Tex. App. – Dallas 1987, pet.

ref’d) (defendant charged with “the unlawful exercise of control over

complainant’s money without the effective consent of complainant with

the intent to deprive complainant of her money” argued that court

opinions justified charges but was denied Section 8.03 Mistake of Law

instruction since he “could not have formed the reasonable belief based

on court’s opinions or official statements that the conduct charged in the

indictment was legal”); see also People v. Marrero, 507 N.E.2d 1068,

1070-1071 (N.Y. 1987) (correctional officer charged with unlawful

possession of firearm not entitled to mistake of law defense since statute

at issue never authorized defendant’s conduct); State v. Sheedy, 125 N.H.

108, 480 A.2d 887 (1984) (trial judge erred in refusing to instruct jury

where public utilities commission informed defendant that his conduct,

which was otherwise illegal under state law, was permitted).




                                   48
     This understanding that the defendant must present authorities

that his conduct was in fact authorized by law has been applied in a case

involving illegal voting. The defendant in Commonwealth v. Cosentino

was charged with illegal voting. See 850 A.2d 58, 59-60 (N.Y. 2004). He

at one point was registered in the City’s Second Ward, First Precinct. Id.

at 59-60. He and his wife subsequently moved to another voting district,

out of the city and into the county. Id. at 60. While his wife filed a notice

of change of residency with county election officials, he never did. Id. He

owned property in the city and paid taxes there. Id. He then voted in an

election in the City’s Second Ward, First Precinct and was charged with

illegal voting. Id. at 60-61. At trial, he asserted an “‘entrapment by

estoppel’” defense believing that the case Commonwealth v. Bobino, 18

A.2d 458 (N.Y. 1941) held “that a lack of knowledge, as reflected by the

evidence in this case, does furnish an appropriate excuse since knowledge

of the law is an essential element of the offense.” Id. In Bobino, the

Superior Court of Pennsylvania found an instruction telling the jury that

“lack of knowledge will furnish no excuse” to be erroneous where the law

disqualified one who voted “knowing that he does not possess all the

qualifications” to vote. See 18 A.2d at 459. But the Cosentino court


                                     49
upheld that trial court’s ruling that the defendant was not entitled to the

defense:

      Thus, even if it is assumed that Cosentino could have invoked
      the “reliance doctrine” as an affirmative defense to the instant
      charge at trial, it is clear that he did not demonstrate the
      requisite elements supporting such a defense. Id. As the trial
      court noted, there is absolutely no evidence which indicates
      that any public official made any affirmative representation
      to Cosentino that he could continue to vote in the City’s
      Second Ward, First Precinct election district after he had
      changed his residence to Allegheny Township.

Id. at 67.

      All these cases stand for the proposition that to be entitled to a

Section 8.03 Mistake of Law instruction, the defendant has to

acknowledge that he believed the conduct charged was not a crime and

that he relied on specific legal authorities in forming that belief.

      D.     Appellee’s Reliance Was Unreasonable as a Matter of Law.

      As discussed above, Section 8.03 Mistake of Law is designed to

excuse the commission of the offense due to some governmental

misleading. Section 8.03 Mistake of Law, like entrapment by estoppel,

should apply “when the government affirmatively assures him that

certain conduct is lawful, the defendant thereafter engages in the conduct

in reasonable reliance on those assurances, and a criminal prosecution


                                     50
based upon the conduct ensues.” See United States v. Aquino-Chacon,

109 F.3d 936, 938-939 (4th Cir. 1997). LaFave reserves the judicial-

decision reliance on decisions, opinions or judgments “later determined

to be invalid or erroneous.” See Substantive Criminal Law, at 413-414

(emphasis added); see also Marrero, 507 N.E.2d at 1071 (must be a

“mistake in the law itself”). LaFave reserves the administrative-

interpretation defense to situations where he “reasonably relies upon an

erroneous official statement of the law contained in an administrative

order or grant or in an official interpretation by the public officer or body

responsible for interpretation, administration, or enforcement of the law

defining the offense.” See id. at 415 (emphasis added). Section 8.03

Mistake of Law applies, then, when one argues that some governmental

authority mislead him to committing an offense.

     Appellee said he relied on GA-0141, GSC-1, and Mills in believing

he was a resident of the RUD, but none of these sources give erroneous

advice. In fact, Appellee told McDuffee not to worry about the Grant

Letter because the issue was a “gray area.” See VII RR 212. Both GA-

0141 and GSC-1 address how Section 1.015 of the Texas Election Code

applied to college students attending Prairie View A&M University in


                                     51
Waller County, Texas, in light of possible attempts by county officials to

discourage students living in dormitories from registering to vote in local

elections. See Appendix K. The court in Mills v. Bartlett did not make

any clear declarations but instead noted that the “term ‘residence’ is an

elastic one and is extremely difficult to define.” 377 S.W.2d 636. GSC-1

gives the reader a similar warning: “As we have noted above, analysts of

Texas residence cases select a single case at their peril.” GSC-1 at 6.

Appellee was obviously trying to establish nominal residency for voting

purposes. See Texas v. Florida, 306 U.S. 398, 425 (1939) (self-serving

declarations of intent indicate a “desire to establish a nominal residence

for tax purposes”).

     In short, one who relies on his own subjective interpretation of the

law is not in a position to blame a court or a governmental agency for his

mistakes. See Hefner, 735 S.W.2d at 625 (defendant’s “subjective beliefs”

are unimportant where he “could not have formed a reasonable belief

based on court’s opinions or official statements that the conduct charged

in the indictment was legal”); Davis v. United States, 690 F.3d 330, 341

(5th Cir. 2012) (reliance unreasonable under Section 8.03 Mistake of Law

if based on factually dissimilar decisions). The mistake of law defense is


                                    52
“designed to recognize good faith reliance, not to encourage gambling.”

See Ostrosky v. State, 725 P.2d 1087, 1090 (Alaska Ct. App. 1986) (citing

2 P. Robinson, Criminal Law Defenses § 183, at 387 (1984)). This Court

should find this alleged reliance “unreasonable as a matter of law.” See

Green, 829 S.W. 2d at 223 (citing to Section 8.03 Mistake of Law).

     E.    A Mistake-Related Defense That Tended To Negate The
           Culpability Necessary for the Commission of the Offense
           Would Not Apply To Illegal Voting.

     Part of the confusion surrounding the application of Section 8.03

Mistake of Law in this case concerns the way in which this offense is

defined and how a defensive instruction designed to negate the

culpability necessary for the commission of the crime would apply. The

court of appeals held that the offense “incorporates knowledge of the law

or legal concepts” and that Appellee’s “knowledge of where he resided

turned on his understanding of the legal requirements for residence

under the election code.” See Jenkins, 2015 Tex. App. LEXIS 5667, at

**48, 54. If the accompanying mental state required knowledge of the

law, then a Section 8.03 Mistake of Law instruction would apply since

the defense applies when the defendant is attempting to “negate a




                                   53
culpable mental state that is in some way based on knowledge of the law

or legal concepts.” See id. at *48.

      As discussed above, the first problem with the majority’s analysis

is its understanding that a Section 8.03 Mistake of Law applies when one

is attempting to negate the mental state. Even if knowledge of the law is

an element of the offense, a Section 8.03 Mistake of Law defense would

not apply since it “does not negate a defendant’s criminal state of mind.”

Appellee, though, might be entitled to a Section 8.02 Mistake of Fact

instruction premised on the notion that most jurisdictions regard

mistakes of fact or law similarly.

      Second, under Texas law, knowledge of the law is irrelevant in a

prosecution for illegal voting. See Medrano v. State, 421 S.W. 3d 869, 884-

885 (Tex. App.—Dallas 2014, pet. ref’d) (citing Thompson v. State, 26

Tex. Ct. App. 94, 9 S.W. 486, 486 (1888)). A person commits the offense

of illegal voting “if the person votes . . . in an election in which the person

knows the person is not eligible to vote.” See Tex. Elec. Code §

64.012(a)(1) (West 2010). “Eligibility” is based on “residency,” and

“residency” is defined as one’s domicile, that is, “one’s home and fixed

place of habitation to which one intends to return after a temporary


                                      54
absence.” Id. at 11.001(a)(2) (West 2010); id. § 1.015(a) (West 2010).

Therefore, the State had to prove that Appellee voted in an election that

was outside his “home and fixed place of habitation.”

     In Thompson v. State, a criminal prosecution of a man accused of

voting knowing he was disqualified because he had been convicted of a

felony, the court of appeals said:

           As the defendant knew the fact that he had been
     convicted of the offense of assault with intent to murder, it
     must be conclusively presumed that he knew the legal
     consequences of such conviction; that he knew that the law
     declared that offense to be a felony, and that the Constitution
     and the law made one of the consequences of the conviction
     his disqualification to vote. He cannot be heard to deny such
     knowledge, and it was not necessary that it should be proved
     that he had such knowledge, because the presumption of law
     supplied and dispensed with such proof.

           While we have found no adjudicated case determining
     the precise question in accordance with our view of it we have
     found none which holds a contrary doctrine. It seems to us
     that if we were to hold the law to be that the State must prove
     that the defendant knew that the offense of which he had been
     convicted was a felony, and that such conviction disqualified
     him to vote, the effect would be that a conviction for illegal
     voting by persons convicted of felony could rarely be obtained,
     because it would be an exceptional case in which such proof
     could be made. Such a holding would not accord with our
     understanding of the spirit and reason of the law, and is not
     supported by any precedent to which we have been cited, or
     which we have been able to find.



                                     55
9 S.W. at 98. Accordingly, the State had to only prove factual not legal

knowledge; see also State v. Pruser, 21 A.2d 641, 641-642 (N.Y. 1941)

(defendant charged with “knowing she was not a qualified voter” could

not defend on basis that state had to prove she “had knowledge of the

legal effect of the proofs adduced by the state”).

     The holding in Thompson that the State only had to prove factual

knowledge and did not need to prove knowledge of the law or “legal

concepts” where the statute uses the word “knowingly” is well-

established. See Bryan v. United States, 524 U.S. 184, 192 (1998)

(knowledge requisite to knowing violation of statute is factual knowledge

not knowledge of the law); United States v. Int’l Minerals & Chem. Corp.,

402 U.S. 558, 563 (1971) (statute authorizing Interstate Commerce

Commission to promulgate regulations governing transportation of

certain corrosive liquids and to impose criminal penalties on those who

“knowingly violated” those regulations required proof that defendant

knew nature of his acts, not proof that he knew his acts violated

regulations). Here, Section 64.012 only requires the State to prove that

Appellee knew on the day he voted in the RUD election that his “home




                                     56
and fixed place of habitation” was outside the RUD; it did not require the

State to prove that he “had knowledge of the law or legal concepts.”

      Accordingly, Appellee was not entitled to a Section 8.03 Mistake of

Law instruction, Judge Stevens’s ruling should be upheld, and the

judgment of the trial court affirmed.

II.   The Court of Appeals Erred in Finding that Appellee Was Harmed
      by the Trial Court’s Failure to Provide a Section 8.03 Mistake of
      Law Instruction.

      The failure to provide a properly requested defensive instruction

must result in actual not theoretical harm. See Cornet v. State, 417

S.W.3d 446, 449-450 (Tex. Crim. App. 2013) (citing Sanchez v. State, 376

S.W.3d 767, 775 (Tex. Crim. App. 2012). A reviewing court must evaluate

the entire record including (1) the entire jury charge, (2) the state of the

evidence, including the contested issues and weight of probative

evidence, (3) the argument of counsel, and (4) any other relevant

information revealed by the record of the trial as a whole. Id. (citing

Almanza, 686 S.W.2d 171.

      First, given the charge the jury was provided, it would have been

impossible for the jury to have found Appellee guilty beyond a reasonable

doubt without having first considered whether he mistakenly believed he


                                    57
was a resident of the RUD. See Druery v. State, 225 S.W.3d 491, 495

(Tex. Crim. App. 2007) (no harm where refused charge is adequately

covered by charge). As the dissent notes:

     [B]ecause the jury could not find both that appellant knew he
     was not a resident but had a reasonable belief he was a
     resident, the knowing requirement in the charge fulfills the
     same function as the reasonable belief defense: giving the jury
     a vehicle to find appellant not guilty if he thought he was a
     resident in reliance on the authorities.

Jenkins, at **93-94.

     The “knowing” element was clearly provided in the trial court’s

charge. See CR at 312-313. The jury came “face-to-face” with the

determination of whether Appellee did in fact vote knowing he was not a

resident. See Sands v. State, 64 S.W.3d 488, 496 (Tex. App. – Texarkana

2001, no pet.) (“jury came face-to-face with making a decision of whether

Sands intentionally and knowingly possessed methamphetamine”); see

also Reyes v. State, 422 S.W. 3d 18, 31-32 (Tex. App. – Waco 2013, pet.

ref’d) (same); Durden v. State, 290 S.W.3d 413, 421 (Tex. App. –

Texarkana 2009, no pet.) (same).

     Additionally, the provision of a defensive instruction disproving a

“knowing” violation is “inherently illogical.” See Martin, 480 U.S. at 238

n.1 (Powell, J., dissenting). Appellee’s instruction, which he believes

                                   58
negated the mental element of “knowing,” would have fallen after the

reasonable doubt instruction and required him to prove he did not know

by a preponderance of the evidence. See CR at 318-319. “It makes no

sense to say that the prosecution has the burden of proving an element

beyond a reasonable doubt and that the defense has the burden of proving

the contrary by a preponderance of the evidence.” See Martin, 480 U.S.

at 238 n.1 (emphasis in orig.). If the State fails to meet its burden, the

jury will acquit, and if the State meets its burden and the jury finds the

defendant guilty, then the jury “necessarily has decided that the

defendant has not disproved an element of the crime. In either situation

the instructions on the affirmative defense are surplusage.” Id.

     Second, the evidence weighed heavily against Appellee. The State’s

theory that Appellee was one of the ringleaders in a scheme to “overthrow

a utility” was well-established. The jury heard that Appellee directed

people to change their addresses to The Residence Inn for the temporary

purpose of voting one time in an election. The jury also heard that after

the election these ten people needed to “make up” reasons for checking

back into the hotel to make it appear as if they were in fact bona fide

residents of the RUD. Appellee said, “We had to prove that we were


                                   59
honestly going to live at the Residence Inn.” See IX RR 164-165. If one

“honestly” believed he had established “residency for voting purposes,”

then there would be no need to check back into the hotel after the vote.

There was no good-faith mistaken belief about residency, and no rational

jury would believe this was lawful.

      Third, Appellee’s arguments and the State’s arguments were made

as if Appellee had received a Section 8.03 instruction. Appellee argued

that he believed he was not committing a crime and told the jury to read

defense exhibit 1, GSC-1, which discussed Mills, and defense exhibit 2,

GA-0141, which also discussed Mills and pointed out that those sources

“say exactly what Mr. Jenkins says they say” and uses the phrase

“[r]esidence for voting purposes.” IX RR 193, 195-197, 200. Appellee was

also able to make an argument that he would not have been able to make

if he were confined to Section 8.03: namely, “He talked with a lawyer who

understood the election process and got advice from him concerning how

do you establish residency for voting purposes.” IX RR 199.15 And

Appellee did make the argument he is advancing here on appeal, namely,


15
   Gallegos v. State, 828 S.W.2d 577, 579 (Tex. App.—Houston [1st Dist.] no. pet.)
(“reliance upon the advice of counsel does not constitute a permissible mistake of
law”).
                                       60
that he believed that he had established residency. IX RR 192, 199. He

concluded by arguing that “the State has failed to prove the most

important element in this case and that’s knowledge that the person

knew that they weren’t eligible to vote and they didn’t reside in the

district they weren’t supposed to vote.” IX RR 201.

     Fourth, Appellee was able to make a Section 8.03 Mistake of Law

argument without having to prove his defensive theory beyond a

preponderance of the evidence. If Appellee is correct in his interpretation,

he would have had the burden of proof to disprove intent. The net effect

of this burden-shifting would have been to reduce the State’s burden of

proof. See Okonkwo, 398 S.W.3d at 696 (instruction “problematic” since

it “would have decreased the State’s burden of proof”). That burden

shifting really is “problematic.” And, as indicated above, he made

arguments he never would have been able to make and presented

evidence he never would have been able to present had he received the

instruction. Clearly, the failure to provide the instruction in this case

worked to his advantage. Appellee was not going to be able to hurdle a

preponderance-of-the-evidence standard of proof.




                                    61
     In conclusion, Appellee was not harmed by the omission of the

Section 8.03 Mistake of Law instruction. This Court should affirm the

trial court’s judgment and remand this case to the court of appeals to

address Appellee’s second point of error.

                         PRAYER FOR RELIEF

     FOR ALL OF THESE REASONS, the State respectfully requests

that this Honorable Court grant this petition for discretionary review,

reverse the court of appeals and remand this case to the court of appeals

to address Appellee’s second point of error.

                                  Respectfully submitted,

                                  KEN PAXTON
                                  Attorney General of Texas

                                  CHARLES E. ROY
                                  First Assistant Attorney General

                                  ADRIENNE MCFARLAND
                                  Deputy Attorney General for Criminal
                                  Justice

                                  JONATHAN WHITE
                                  Assistant Attorney General
                                  Criminal Prosecutions Division

                                  EDWARD L. MARSHALL
                                  Chief, Criminal Appeals Division



                                    62
                                  /s/ Jon R. Meador
*Lead Counsel                     JON R. MEADOR*
                                  Assistant Attorney General
                                  Criminal Appeals Division
                                  State Bar No. 24039051

                                  P. O. Box 12548, Capitol Station
                                  Austin, Texas 78711
                                  (512) 936-1400
                                  (512) 936-1280 (FAX)

                                  ATTORNEYS FOR APPELLEE

              CERTIFICATE OF COMPLIANCE WITH
           TEXAS RULE OF APPELLATE PROCEDURE 9.4

     I do hereby certify that this brief complies with Tex. R. App. Proc.

9.4 in that it contains 14, 650 words, in Microsoft Word 14.0, Century, 14

points.

                                  /s/ Jon R. Meador
                                  JON R. MEADOR
                                  Assistant Attorney General




                                   63
                     CERTIFICATE OF SERVICE

     I do hereby certify that a true and correct copy of the foregoing

pleading is served by electronic filing, by email, and by placing the same

in the United States Mail, postage prepaid, on this the 2nd day of

November, 2015, addressed to:

George McCall Secrest, Jr.
Bennett & Secrest, LLP
808 Travis, 24th Floor
Houston, Texas 77002-4177
gmsecrest@aol.com

Lisa C. McMinn
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711
512/463-1660 (Telephone)
512/463-5724 (Fax)


                                  /s/ Jon R. Meador
                                  JON R. MEADOR
                                  Assistant Attorney General




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