Reversed and Remanded and Majority and Dissenting Opinions filed June 4,
2015.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00662-CR

                      JAMES ALAN JENKINS, Appellant
                                        V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 359th District Court
                          Montgomery County, Texas
                    Trial Court Cause No. 12-03-02579-CR

                   DISSENTING                  OPINION


      In this prosecution for illegal voting, appellant contends he was entitled to
jury instructions allowing him to prove by a preponderance of the evidence that,
due to a mistake of law, he reasonably believed he resided in the precinct in which
he voted. But those are not the instructions appellant requested. Moreover, the
charge given to the jury already required the State to prove beyond a reasonable
doubt that appellant knew he did not reside in the precinct in which he voted.
Because this charge gave the jury a more favorable vehicle to acquit the defendant
if it agreed with his defensive theory, the trial court did not commit harmful error
in denying appellant’s requested instructions.        I would therefore overrule
appellant’s first issue and address his second issue challenging the statutory
definition of residence used in illegal voting prosecutions as unconstitutionally
vague. Because the majority sustains the first issue and does not reach the second,
I respectfully dissent.

I.    Background: the jury charge and appellant’s requested instructions on
      mistake of law
      Appellant was charged with “vot[ing] . . . in an election in which the person
knows the person is not eligible to vote.” Tex. Elec. Code Ann. § 64.012(a)(1)
(West 2010). At trial, appellant admitted that he voted in an election for the
Woodlands RUD Board of Directors. Appellant maintained, however, that he did
not know he was ineligible to vote because he reasonably believed—in reliance on
certain election law authorities—that his residence was a Residence Inn located
within the territory of the RUD where he had stayed briefly. See id. § 11.001(a)
(West 2010) (defining eligibility to vote as requiring residence in the territory
covered by the election); see also id. § 1.015 (defining residence) (West 2010).
Appellant requested that the trial court instruct the jury on the Penal Code’s
affirmative defense of mistake of law, which applies if a defendant proves by a
preponderance of the evidence that “the actor reasonably believed the conduct
charged did not constitute a crime and . . . acted in reasonable reliance upon” an
official statement of the law or written interpretation of the law that meet certain
requirements. Tex. Pen. Code Ann. § 8.03(b) (West 2011); see also id. § 2.04(d)
(defining burden of proof on affirmative defense) (West 2011).

      The trial court denied the requested instructions. The court explained that
appellant’s theory of the case actually challenged the State’s ability to prove
beyond a reasonable doubt the element of the crime that appellant knew he was
ineligible to vote. Thus, the court reasoned, the jury would already have the issue

                                         2
before it in a different fashion in the charge, and appellant would have a fair
opportunity to argue the matter.

      To determine whether the trial court committed error by denying the
requested instructions and whether that error harmed appellant, it is useful to begin
with the language of the jury charge and the requested instruction themselves. The
charge provided, in pertinent part:

      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.

(Emphasis added). Appellant’s requested instructions provided, in pertinent part:

      If you all agree the state has proved, beyond a reasonable doubt, each
      of the elements listed above, you must next consider whether the
      defense of mistake of law applies.

      You have heard evidence that, when the defendant committed the act
      of illegal voting, he believed that his conduct did not constitute a
      crime.

      A person’s conduct that would otherwise constitute the crime of
                                          3
      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 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].
(Emphasis added).

II.   Mistake of law can be either a defense of confession and
      avoidance or a defense that negates an element of the offense.
      The majority first addresses the State’s argument that the trial court did not
err in denying these instructions because mistake of law is a defense of confession
and avoidance, and appellant did not essentially admit to every element of the
offense as required to claim such a defense.          A defense of confession and
avoidance is one that, by definition, does not negate an element of the charged
offense; rather, it excuses what would otherwise constitute criminal conduct. Shaw
v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007). An instruction on such a
defense is appropriate only when defendant essentially admits to every element of
the offense. Juarez v. State, 308 S.W.3d 398, 401 (Tex. Crim. App. 2010).

      The majority rejects the State’s argument by holding that the defense of
mistake of law “may be applied to negate the culpable mental state of an alleged
                                           4
offense when an accused contends that he reasonably believed his conduct was not
criminal based on his reasonable reliance on official statements or interpretations
of the law.” Ante, at 33. Therefore, the majority holds, “the affirmative defense of
mistake of law is not subject to the confession and avoidance doctrine” requiring
appellant to admit the elements of the offense before he can obtain an instruction
on the defense. Id. Although I agree that the defensive theory of mistake argued
by appellant would negate the culpable mental state of the particular offense in
question, it is important to recognize that mistake of law can be a defense of
confession and avoidance. Indeed, as explained in Part III.A. below, appellant’s
own requested instructions show that he asked the trial court to submit the defense
as one of confession and avoidance.

       “The general rule that ignorance of the law or a mistake of law is no defense
to criminal prosecution is deeply rooted in the American legal system,” Cheek v.
United States, 498 U.S. 192, 199 (1991), and it is recognized in our Penal Code.
See Tex. Penal Code Ann. § 8.03(a) (West 2011). 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 that required mental state does not violate the criminal law. See 1
Wayne R. LaFave, Substantive Criminal Law § 5.6(a), at 394–97 (2d ed. 2003).1
Although the first kind of mistake negates an element of the offense, the second
kind is a defense of confession and avoidance under Texas law.

       Regarding the first kind, “[i]nstead of speaking of ignorance or mistake of
. . . law as a defense, it would be just as easy to note simply that a defendant cannot
be convicted when it is shown that he does not have the mental state required by

       1
        See also United States v. Platte, 401 F.3d 1176, 1184 (10th Cir. 2005); State v. Steele,
236 P.3d 161, 171 (Utah App. 2010).
                                               5
law for the commission of that particular offense.” Id. at 395. When a legal
mistake negates the specific intent required for the crime in question, some courts
refer to the defense as one of “good faith” mistake, though the mistake may not
need to be a reasonable one to negate the required mental state. See, e.g., Cheek,
498 U.S. at 200–03 (holding defendant’s belief need not be objectively reasonable
to negate willful mental state required for criminal tax evasion).

      As to the second kind of mistake, Texas—like some other states—has
created a statutory exception that allows mistake of law to serve as a defense if the
defendant reasonably believed the conduct charged did not constitute a crime and
acted in reasonable reliance upon an official statement or written interpretation of
the law meeting certain requirements. Tex. Penal Code Ann. § 8.03(b). Because
the conduct charged includes the accompanying mental state, see id. § 1.07(a)(10)
(West 2011), this defense applies even when the defendant’s mistake would not
negate the culpable mental state for the particular crime charged.

      For example, in addressing a charge of intentionally and knowingly
possessing a firearm and body armor, our sister court recognized that a defendant’s
reasonable belief that he was entitled to a police officer exception would involve a
mistake of law even though it would not negate the culpable mental state of
intentional and knowing possession. Plummer v. State, 426 S.W.3d 122, 127 (Tex.
App.—Houston [1st Dist.] 2012), aff’d as reformed on other grounds, 410 S.W.3d
855 (Tex. Crim. App. 2013). Similarly, courts in other states have held that a
defendant could assert this type of statutory mistake defense even when he acted
with the culpable mental state of the crime charged. See State v. Sheedy, 480 A.2d
887, 888–89 (N.H. 1984) (holding defendant charged with willfully intercepting
telephone conversations entitled to present defense that he believed in reliance on
letter from public utility commission that his conduct was not governed by state
law); People v. Studifin, 504 N.Y.S.2d 608, 611–12 (N.Y. Sup. Ct. 1986) (holding

                                          6
defendant charged with knowingly possessing weapon not guilty given evidence
that he believed possession was not offense based on official statement that license
was required to sell weapon).2

       As these cases show, reasonable reliance on official statements will not
necessarily negate any culpable mental state applicable to a charged offense.
Rather, this kind of statutory mistake of law may also provide a defense when it
does not negate the culpable mental state. In these circumstances, it is a defense of
confession and avoidance.

       Moreover, the difference between these two kinds of mistakes has
significant implications for the question whether denying an instruction on mistake
of law is harmful error—implications that the majority does not address. When the
mistake would negate the culpable mental state of the crime, a jury charge that
simply lays out the crime’s elements already provides the jury with a vehicle to
give effect to the defense by finding that the State failed to prove the mental state
beyond a reasonable doubt. But when there is evidence of a reasonable mistake
that does not negate the culpable mental state, there is no way for the jury to give
effect to that evidence unless it is instructed that the mistake provides a defense if
the requirements of section 8.03 of the Penal Code are met. See Cornet v. State,
417 S.W.3d 446, 451 (Tex. Crim. App. 2013). For all of these reasons, we must
determine which kind of mistake appellant is asserting here.

       Applying this two-part understanding of mistake of law, I agree with the
majority’s conclusion that the particular mistake appellant claims here is the first

       2
          Federal courts and some courts in states with no comparable statute recognize a variant
of this exception under principles of due process. See Commonwealth v. Kratsas, 764 A.2d 20,
27–33 (Pa. 2001). This due process-based mistake defense likewise applies even if the defendant
acted with the culpable mental state of the crime charged. See Miller v. Commonwealth, 492
S.E.2d 482, 487–491 (Va. App. 1997) (dismissing charge of knowing and intentional possession
of firearm by felon because defendant reasonably relied on advice of probation officer that
possession was lawful).
                                               7
kind of mistake—one that negates the culpable mental state of the crime of illegal
voting. As the majority succinctly explains, appellant “did not deny registering to
vote and voting in the RUD election, but he disputed that at the time he cast his
vote he acted ‘knowingly,’ i.e.”—in the language of the jury charge—“that he
‘knew he was not eligible to vote because he knew he did not reside’ in the RUD.”
Ante, at 35. Indeed, “a jury could not conclude that [appellant] ‘knew he did not
reside in the [RUD]’ and also conclude, based on mistake of law, that [appellant]
‘reasonably believed’ that he did not commit a crime by voting in the election
based on his ‘reasonable reliance’ on the election law authorities.” Ante, at 32.

III.   Because the claimed mistake would negate an element of the offense,
       denying the requested instructions was not error and did not harm
       appellant.
       Having held that appellant’s claimed mistake of law would negate the
culpable mental state on which the jury was instructed, it follows that the trial
court’s denial of appellant’s request for separate instructions on that mistake was
not error and did not harm appellant. To explain the basis for these conclusions, I
examine appellant’s arguments regarding error and harm in turn. See Ngo v. State,
175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005) (explaining two-step process for
reviewing complaint of criminal jury charge error).

       A.    Error

       Appellant argues that the trial court erred in denying instructions on the
affirmative defense of mistake of law because he offered some evidence that he
reasonably relied on the election law authorities to form a reasonable belief that he
was a resident, for voting purposes, of the precinct in which he voted. To be sure,
the Court of Criminal Appeals has held that a trial court must instruct the jury on
statutory affirmative defenses whenever they are raised by the evidence. Walters
v. State, 247 S.W.3d 204, 208–09 & n.17 (Tex. Crim. App. 2007). But it has also

                                          8
held that when a defense is one of confession and avoidance, “defensive evidence
[that] merely negates the necessary culpable mental state . . . will not suffice to
entitle the defendant to a defensive instruction.” Shaw, 243 S.W.3d at 659; see
also Cornet, 417 S.W.3d at 451; Villa v. State, 417 S.W.3d 455, 462 (Tex. Crim.
App. 2013). As explained above, the kind of mistake of law that Texas has
recognized by statute is a defense of confession and avoidance.

      There are no Texas decisions addressing which of these principles should
control when a defendant requests a defensive instruction regarding a mistake of
law that would negate the culpable mental state of the offense. The federal courts
have addressed such requests, however, and most have concluded that the
defendant is not entitled to such an instruction. For example, in criminal fraud
cases, most circuits have held that an instruction regarding a defendant’s good-
faith belief that he was following the law is redundant because such a belief is
incompatible with the required specific intent to deceive. See, e.g., Green v.
United States, 474 U.S. 925 (1985) (White, J., dissenting from denial of certiorari
and noting circuit split in which Second and D.C. Circuits, among others, hold that
defendant is not entitled to separate good-faith instruction); United States v.
Sirang, 70 F.3d 588, 594 (11th Cir. 1995) (comparing decisions of the First,
Fourth, Fifth, Eighth, and Eleventh Circuits, which do not require good-faith
instruction, with decisions of the Tenth Circuit, which does); see also United States
v. Pomponio, 429 U.S. 10, 13 (1976) (per curiam) (holding in tax fraud prosecution
that “The trial judge . . . adequately instructed the jury on willfulness. An
additional instruction on good faith was unnecessary.”); United States v. Kokenis,
662 F.3d 919, 930 (7th Cir. 2011) (same); United States v. Simkanin, 420 F.3d 397,
409–412 (5th Cir. 2003) (same).

      In particular, the Fifth Circuit has changed its mind on this issue. Although
it held in some early cases that the district court abused its discretion in omitting a

                                          9
good-faith instruction despite the inclusion of instructions defining the required
mental state, its recent cases hold that there is no abuse of discretion if the
defendant is able to present his good-faith defense through witnesses, closing
arguments, and other jury instructions. United States v. Hunt, 794 F.2d 1095, 1098
(5th Cir. 1986); see also United States v. Frame, 236 Fed. Appx. 15, 18 & n.5 (5th
Cir. 2007).

       Of course, Texas courts analyzing this issue must also take into account that
mistake of law is a statutory affirmative defense. See Walters, 247 S.W.3d at 209–
10.   Texas courts analyzing the statutory defense of mistake of fact—which
explicitly negates the culpable mental state of the offense—have reached
conflicting conclusions about whether omitting an instruction on that defense is
error. See Okonkwo v. State, 398 S.W.3d 689, 695–96 & nn.5–6 (Tex. Crim. App.
2013).3 As Judge Womack has explained, the root of this disagreement is that the
defense of mistake of fact sits

       astride two principles in the law of the jury charge. While it is true
       that a defendant is entitled to an affirmative submission of a defensive
       issue, it is likewise true that no affirmative charge need be given when
       a defensive theory merely negates an element of the offense. . . . Had
       the Legislature not codified the defense of mistake of fact, we might
       be free to say that the jury charge could, and should, handle the issue
       adequately by requiring the jury to find the element of the culpable
       mental state in order to convict.

Posey v. State, 966 S.W.2d 57, 70 (Tex. Crim. App. 1998) (Womack, J.,
concurring).

       In Bruno v. State, a plurality of three judges of the Court of Criminal
Appeals concluded that an instruction on mistake of fact was unnecessary in a
prosecution for unauthorized use of a motor vehicle. 845 S.W.2d 910, 913 (Tex.

       3
        This issue also has divided courts in other states. See, e.g., State v. Locquiao, 58 P.3d
1242, 1253–55 (Haw. 2002) (collecting cases).
                                               10
Crim. App. 1993) (plurality op. of White, J.). There, the appellant testified that the
owner gave him her car, but the owner testified that the appellant grabbed her keys
and drove away.         The charge required the jury to find that the appellant
intentionally or knowingly operated the vehicle without the owner’s effective
consent. The plurality explained that a mistake instruction need not have been
given because “the jury could not believe both the testimony of [the] owner and the
testimony of appellant,” and the jury “would have necessarily been required to
disbelieve appellant’s story before they could find sufficient evidence to convict.”
Id. Three other judges concurred, agreeing that “the mistake of fact instruction[]
was unnecessary in the instant case.” Id. (Baird, J., concurring). This Court
followed Bruno in a non-precedential opinion, Hopson v. State, No. 14-08-735-CR,
2009 WL 1124389 (Tex. App.—Houston [14th Dist.] Apr. 28, 2009, no pet.)
(mem. op., not designated for publication),4 as did the Beaumont Court of Appeals
in Traylor v. State, 43 S.W.3d 725, 730–31 (Tex. App.—Beaumont 2001, no pet.).

       On the other hand, the Court of Criminal Appeals has said that when a
defendant’s evidence “creates an issue of mistaken belief as to only the culpable
mental state element of theft . . . , the defendant would be entitled to a defensive
instruction of ‘mistake of fact.’” Willis v. State, 790 S.W.2d 307, 314 (Tex. Crim.
App. 1990); see also Giesberg v. State, 984 S.W.2d 245, 249–50 (Tex. Crim. App.
1998).

       It is unnecessary to resolve this disagreement here because mistake of law—
unlike mistake of fact—is a statutory affirmative defense that the defendant has the
burden to prove, and the kind of mistake of law addressed by the statute is a
defense of confession and avoidance.                Critically, appellant’s own requested

       4
          In a later opinion, which has been reversed, this Court distinguished Bruno but opined
in dicta that Bruno’s discussion of this issue was itself dicta. See Okonkwo v. State, 357 S.W.3d
815, 820–21 (Tex. App.—Houston [14th Dist.] 2011), rev’d, 398 S.W.3d 689 (Tex. Crim. App.
2013).
                                               11
instructions would have submitted the defense as one of confession and avoidance.
The requested instructions focused on whether appellant “reasonably believed as a
result of mistake of law that the conduct charged did not constitute a crime.” The
jury charge described the conduct charged in this case, in part, as voting when
appellant “knew he did not reside in the precinct in which he voted.” See Tex.
Penal Code § 1.07(a)(10) (defining “conduct” as “an act or omission and the
accompanying mental state”). Thus, appellant’s requested instructions would have
asked the jury to decide whether appellant reasonably believed it was not a crime
for him to vote when he knew he did not reside in the precinct in which he voted.
This instruction is not supported by the defensive evidence that appellant contends
negates the culpable mental state: that he reasonably believed he resided at the
Residence Inn under the election law authorities, and therefore he did not vote in a
precinct knowing he did not reside there.5 Because appellant’s requested defensive
instructions do not negate an element of the charged offense, but rather excuse
what would otherwise constitute criminal conduct, they are subject to the
confession and avoidance doctrine.

       As the Court of Criminal Appeals has repeatedly held, “[w]hen the defensive
evidence does no more than negate an element of the offense, a defendant is not
entitled to an instruction on any defense subject to the confession-and-avoidance
doctrine.” Cornet, 417 S.W.3d at 451; see also Villa, 417 S.W.3d at 462; Shaw,
243 S.W.3d at 659. Applying this rule to the affirmative defense of mistake of law
appropriately takes all of the Legislature’s choices into account, especially given
the different burdens involved in proving an offense and an affirmative defense.
See Tex. Penal Code Ann. §§ 2.01, 2.04(d) (West 2011). Requiring courts to
       5
         Appellant’s requested instructions appear to be based on the recommended pattern
defensive instruction on mistake of law. The drafting committee notes in its introduction that the
recommended instruction does not address a situation in which the mistake tends to show the
defendant lacked the required culpable mental state. See Comm. on Pattern Jury Charges, State
Bar of Tex., Texas Criminal Pattern Jury Charges: Defenses § B12.2, at 162 (2013).
                                               12
instruct that a defendant may prove mistake of law by a preponderance of the
evidence respects the Legislature’s decision to codify that affirmative defense,
while omitting such an instruction when the evidence of mistake would do no more
than negate an element of the offense respects the Legislature’s requirement that
the State prove that element beyond a reasonable doubt.

       As explained above, appellant’s evidence of mistake would do no more than
negate an element of the illegal voting offense. “[A] jury could not conclude that
[appellant] ‘knew he did not reside in the [RUD]’ and also conclude, based on
mistake of law, that [appellant] ‘reasonably believed’ that he did not commit a
crime by voting in the election based on his ‘reasonable reliance’ on the election
law authorities.” Ante, at 32. Moreover, appellant did not support the instructions
he actually requested with evidence that he reasonably believed he did not commit
a crime even though he voted knowing he did not reside in the RUD.                           See
Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013) (holding “there
must be at least some evidence to support the defense” before the trial court is
required to give the requested instruction). Accordingly, appellant was not entitled
to the mistake instructions under Cornet and Krajcovic, and the trial court did not
err in denying them.

       B.      Harm

       Even if the trial court did err in denying appellant’s requested instructions, a
proper harm analysis reveals that appellant was not harmed by that error. When
the charge contains error and that error has been properly preserved by an
objection or request for instruction,6 reversal is required if the error is “calculated
to injure the rights of the defendant.” Trevino v. State, 100 S.W.3d 232, 242 (Tex.
Crim. App. 2003). The trial record must demonstrate that there is some actual

       6
         For purposes of the harm analysis, I assume without deciding that the majority is correct
that Jenkins preserved his complaint. Ante, at 25 n.9.
                                               13
harm, not just a theoretical complaint. Sanchez v. State, 376 S.W.3d 767, 775
(Tex. Crim. App. 2012). In assessing “the actual degree of harm,” we consider the
whole record, including “the entire jury charge, the state of the evidence, including
the contested issues and weight of probative evidence, the argument of counsel,
and any other relevant information revealed by the record of the trial as a whole.”
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).

      In Cornet, a case involving the omission of a medical-care defensive
instruction, the Court of Criminal Appeals held the omission was harmless error.
417 S.W.3d at 453. It observed that the omission of an instruction on a confession-
and-avoidance defense “is generally harmful because its omission leaves the jury
without a vehicle by which to acquit a defendant who has admitted to all the
elements of the offense.” Id. at 451. Nevertheless, the court conducted a record-
specific analysis of harm and held that the jury implicitly rejected the defendant’s
defense when it convicted him of a second offense involving the same event that
was inconsistent with his claim of providing medical care. Id. at 452.

      Here, appellant argues (notwithstanding the language of his requested
instructions) that his defensive theory of mistake of law sought to negate the
culpable mental state of illegal voting by proving that he reasonably believed he
resided in the precinct in which he voted. But the mental state of “kn[owing] he
did not reside in the precinct in which he voted” was already included in the jury
charge, providing the jury with a vehicle to give effect to appellant’s defense by
finding that the State failed to prove the mental state beyond a reasonable doubt.
Appellant was allowed to introduce evidence to support his defense. Because the
jury would have to reject appellant’s defensive evidence in order to convict him of
knowing he did not reside in the precinct in which he voted, the charge and the
state of the evidence indicate that any error in failing to instruct the jury on mistake
of law was not harmful. See Druery v. State, 225 S.W.3d 491, 505 (Tex. Crim.

                                          14
App. 2007) (“As we have stated, when a refused charge is adequately covered by
the charge given, no harm is shown.”).

      Many courts have reached a similar conclusion regarding the lack of harm
from failing to instruct on a defense of mistake of fact that would negate the
culpable mental state. See Reyes v. State, 422 S.W.3d 18, 31–32 (Tex. App.—
Waco 2013, pet. ref’d) (holding “mistake-of-fact instruction was not essential
because the factfinder would necessarily have had to reject Reyes’s defense to
convict Reyes of the elements of the crime as a principal” and that “Reyes was not
harmed by the failure to have his requested instruction on the mistake of fact
defense submitted to the jury”); Durden v. State, 290 S.W.3d 413, 421 (Tex.
App.—Texarkana 2009, no pet.) (“While in some instances the denial of a proper
defensive instruction would cause harm by preventing the defendant from arguing
an issue, i.e., self-defense, here, Durden fully argued that he thought the wire was
abandoned and that he had no intent to deprive the owner of the property . . . .
While the trial court did err by denying the mistake-of-fact instruction, the jury’s
verdict inferentially resolved the issue that would have otherwise been required via
the requested instruction. It would require us to resort to mere conjecture to
conclude, on this evidentiary record, that Durden suffered any actual harm.”);
Sands v. State, 64 S.W.3d 488, 496 (Tex. App.—Texarkana 2001, no pet.); see
also Posey, 966 S.W.2d at 70–71 (Womack, J., concurring) (observing that
although the power to create defenses belongs to the Legislature, “the close
relationship between the defense of mistake of fact and the culpability element of
the offense is important in the consideration of the harmfulness of the omission of
an instruction on the defense,” and concluding that charge on culpable mental state
allowed jury to “give effect to the defense of mistake of fact”).

      This conclusion of harmlessness applies even more strongly to the defense
of mistake of law because appellant’s defensive theory was less favorable to him

                                          15
than the jury charge he received. The jury charge required the State to prove
beyond a reasonable doubt appellant’s knowledge that he did not reside in the
precinct in which he voted, while appellant’s theory would have required him to
prove by a preponderance of the evidence that he reasonably believed he did reside
in that precinct. Cf. Giesberg, 984 S.W.2d at 250 (“A defensive issue which goes
no further than to merely negate an element of the offense alleged . . . does not
place a burden of proof upon a defendant to establish it.”). Given that the jury
could not find both knowing non-residence and reasonable belief of residence,
including both standards in the charge with different burdens would, at the very
least, have confused the jury. See Lowry v. State, 671 S.W.2d 601, 603 (Tex.
App.—Dallas 1984) (“[W]hen the affirmative defense requires a negation of an
element of the crime, there seems to be an insoluble conflict for the jury due to the
existence of simultaneous burdens of proof. In other words, the jury may become
confused by the different burdens of proof and inadvertently fail to accord due
consideration to evidential matters relating to the affirmative defense.”) (citing
Comment, Affirmative Defenses Under the New York New Penal Law, 19 Syracuse
L. Rev. 44, 47 (1967)), aff’d in relevant part, 692 S.W.2d 86 (Tex. Crim. App.
1985). Indeed, if the State had requested and received a mistake of law instruction,
appellant would surely be arguing on appeal that the instruction unconstitutionally
shifted the burden to him of disproving an element of the offense. See 692 S.W.2d
at 87–88 (affirming portion of court of appeals’ decision holding that statute
violated due process by labeling element of offense as an “affirmative defense”
and shifting burden to defendant to disprove it).

      Moreover, the charge required the State to prove actual knowledge of non-
residency, while appellant’s defensive theory would have required the jury to
decide whether appellant’s belief regarding residency was reasonable.          “This
would have been problematic for appellant because the instruction[s] would have

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decreased the State’s burden of proof by permitting the jury to convict him if it
concluded that his mistake was unreasonable, even if it found that the belief was
honest.” Okonkwo, 398 S.W.3d at 696; see id. at 702 (Cochran, J., concurring).7
The observation of Professors Dix and Schmolesky in the related context of
mistake of fact is equally apt here: “in light of the fact that [the requested
instruction] is duplicative of other mandatory instructions and is harmful to the
defense, it is difficult to imagine that an erroneous refusal to grant a [request] for a
charge concerning the defense would ever fail to be harmless.” 43 George E. Dix
& John M. Schmolesky, Texas Practice: Criminal Practice and Procedure §
43:36, at 917 (3d ed. 2011).

       The majority contends that harm is shown because appellant’s defensive
theory had “no context in the absence of the imprimatur of the court, contained in
its charge, that a mistaken interpretation of law—when interpretation of law is an
element of the offense and is disputed—might support a finding of not guilty.”
Ante, at 44. To the contrary, the record as a whole reveals that the charge (quoted
above) included as an element of the offense the culpable mental state of
knowledge that appellant did not reside in the precinct in which he voted, and
appellant’s counsel was able to argue that the State failed to prove this element
because appellant thought he resided in the precinct and was eligible to vote there
under the election law authorities.

       In sum, because 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


       7
         In some other states, the State—not the defendant—has been the party relying on the
mistake of law defense to suggest that the mistake must be reasonable in order to negate the
culpable mental state for the crime. E.g., Steele, 236 P.3d at 170–72 (noting but not resolving
argument); State v. Jacobson, 697 N.W.2d 610, 615–16 (Minn. 2005) (rejecting State’s
argument).
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jury a vehicle to find appellant not guilty if he thought he was a resident in reliance
on the authorities. Indeed, the charge as given was better for appellant because it
placed the burden on the State and did not require reasonableness. Accordingly, I
would hold that any error in failing to charge the jury separately on appellant’s
defensive theory of mistake of law was harmless. Because the majority instead
holds that this failure was harmful error requiring a new trial, I respectfully dissent.




                                        /s/    J. Brett Busby
                                               Justice



Panel consists of Justices Boyce, Busby, and Wise (Wise, J., majority).
Publish — TEX. R. APP. P. 47.2(b).




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