








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1584/1585-11


MAURICIO CELIS, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS

NUECES COUNTY



 Keller, P.J., filed a concurring opinion in which Price and Keasler, JJ.,
joined.


 I write separately to respond to Judge Cochran's contention that the mistake-of-fact defense
applies to elements of an offense other than the culpable mental state.  Her position conflicts with
the language of the Penal Code, contradicts legislative history, and would produce a sea-change in
our law.
A. Language of the Penal Code

	Mistake of fact is a defense only if the defendant's mistake "negated the kind of culpability
required for the commission of the offense." (1)  Judge Cochran is correct that "culpability" generally
means the actor's blameworthiness for or guilt of the crime.  But the mistake-of-fact defense does
not say that it applies when the mistake negated general "culpability" for the commission of the
offense.  Rather, the defense applies when the mistake negated "the kind of culpability required" for
the commission of the offense.  The use of the word "required" seems pretty clearly to mean that the
culpability to which the defense refers is not culpability in general but, instead, the culpable mental
state "required" by the offense.  And "the kind of culpability" seems to be a reference to one of the
four kinds of mental states provided for by statute (intentionally, knowingly, recklessly, and with
criminal negligence).
	Any ambiguity in this regard is resolved when one looks to other provisions of the Penal
Code that use the word "culpability."  The Penal Code's general definition section says that "element
of offense" means:
(A) the forbidden conduct;

(B) the required culpability;

(C) any required result; and

(D) the negation of any exception to the offense. (2) 

When the words used in the mistake-of-fact defense (culpability required) are also used to define an
element of the offense (required culpability), we should conclude that the culpability to which the
defense refers is the culpability that is an element of the offense, i.e., the culpable mental state
required by the offense.  
	Moreover, the definition of "element of the offense" distinguishes the "required culpability"
from the forbidden conduct and from any required result.  What this means is that "required
culpability" must refer to the defendant's culpable mental state, and not to his guilt of the offense
as a whole.  
	Penal Code § 6.02 is titled "Requirement of Culpability." (3)  That section is devoted
exclusively to the treatment and application of culpable mental states. (4)  Subsections (a) through (c)
address when culpable mental states are required, and subsection (d) lists the culpable mental states
from highest to lowest. (5)  Then subsection (e) provides: "Proof of a higher degree of culpability than
that charged constitutes proof of the culpability charged." (6)  Subsection (e) unequivocally uses the
word "culpability" to mean the defendant's culpable mental state. (7)
	The statutes described above were all part of the enactment of the 1974 Penal Code, and the
portions relevant to the present case have not materially changed. (8)  We must assume that the
legislature was aware of all of these provisions when it used the phrase "the kind of culpability
required" in the mistake-of-fact defense. (9)  Given the legislature's use of the term "culpability" in §§
1.07 and 6.02 to describe culpable mental states that are required, we should conclude that the
legislature intended the same meaning for the term "culpability" in the mistake-of-fact statute.
	Prior cases from our Court have construed the mistake-of-fact defense to apply only if the
mistake negated the culpable mental state. (10)  It is true that these cases were decided before our
statutory construction decision in Boykin, (11) but the conclusions in those cases are consistent with the
plain meaning of the text of the statute. (12)  For that reason, we do not need to consider the legislative
history of the statute.  However, because Judge Cochran does so, and in the event the reader believes
the statute is ambiguous, I will do so as well.	
B. Legislative History

 Judge Cochran candidly acknowledges that the Practice Commentary to § 8.02 contradicts
her position.  The Practice Commentary states: "Mistake of fact constitutes a defense only if it
negates the culpable mental state.  Thus, Subsection (a) overturns the line of cases recognizing
mistake of fact as a defense to public welfare offenses that impose strict liability." (13)  In Thompson,
we said that the Practice Commentary "is often helpful because it was drafted by two individuals
who were part of the Penal Code revision project." (14)  Nevertheless, in that case, we did not find it
instructive in construing the mistake-of-fact statute because the enacted statute differed significantly
from the one proposed by the drafting committee. (15) 
	But we observed that "the mistake of fact defense appears to incorporate elements from both
the Model Penal Code [upon which the proposed code was based] and the prior version of the Texas
Penal Code," (16) thereby suggesting that the new mistake-of-fact defense was not simply a codification
of the prior law but was, instead, a mixture of prior law and new law.  Although we found the
Practice Commentary's global comment about the mistake-of-fact statute being a redundant
provision (17) to be unhelpful because of the significant differences between the proposed and enacted
versions of relevant statutes, (18) the Practice Commentary comment at issue in the present case
pertains to only a portion of the mistake-of-fact statute.  That portion of the statute--requiring that
the defendant's mistake negate "the kind of culpability required" for the offense--was clearly
derived from the language of the proposed code and is dissimilar to the language of the prior
statute. (19) 
	The relevant difference between the "culpability" language in the current mistake-of-fact
statute and its counterpart in the proposed code is that the proposed code specified the culpable
mental states to be negated ("intent, knowledge, recklessness, or criminal negligence"). (20)  This
difference can be explained by the fact that the Penal Code's Chapter 8 defenses (including mistake
of fact) also applied to offenses outside the Penal Code, (21) and those other offenses sometimes used
culpable mental states other than those specified in the Penal Code (e.g. wilfully). (22)  Rather than try
to catalog all possible "nonstandard" culpable mental states, the legislature sensibly took a global
approach to negating culpability.
	Judge Cochran contends that the question is whether Texas abandoned "its tried and true
approach" to the mistake of fact defense that existed from 1867 until 1974 by rendering the statutory
defense a virtual nullity.  The first answer to her question is that the framers of the 1974 Penal Code
were heavily influenced by the Model Penal Code and more modern legal developments and could
well have intended to break with the past.  The second answer is that, after Thompson, the mistake-of-fact defense's role in negating the transfer of intent gives it a non-redundant application.
C. Prior Caselaw

	Judge Cochran relies upon the Mose Green case (23) and other pre-1974 cases to support the
proposition that the mistake-of-fact defense has historically been applied even when the mistake did
not negate a culpable mental state required for the offense.  But as the above discussion shows, those
cases were decided under a mistake-of-fact statute that differs materially from the current statute. (24)
	In cases decided since the enactment of the new statute in 1974, the Court has said that the
mistake must negate a culpable mental state required for the charged offense. (25)  And at least two
cases from this Court since the 1974 enactment have held the mistake-of-fact defense to be
inapplicable when the mistake was about an element of the offense for which there was no culpable
mental state. (26) 
	In Billy Ray Green v. State, the defendant was charged with public lewdness, occurring in
a booth in an adult bookstore. (27)  The defendant contended that he was entitled to the defense of
mistake of fact because there was evidence that he was mistaken about whether the booth was a
public place. (28)  We held that he was not entitled to the defense because "[e]ven if [the defendant] did
form, through mistake, a belief that the booth was not a public place, such mistake of fact could not
be a defense since there is no requirement that a defendant know that the location where the act was
performed was a public place." (29)
	In Mays v. State, the defendant was charged with capital murder for killing peace officers. (30) 
He contended that he was entitled to a mistake-of-fact defense on the basis that he was  mistaken
about whether the officers were acting in the discharge of their official duties. (31)  Although the
offense of capital murder by killing a peace officer includes the element that the peace officer was
"acting in the lawful discharge of an official duty," (32) we held that the defendant was not entitled to
a mistake of fact defense because, among other things, "the defendant need not know that specific
fact," and so, the mistake "would not negate the required culpability for capital murder." (33) 
	Judge Cochran's position conflicts with our prior pronouncements in earlier cases and
conflicts specifically with the holdings in Billy Ray Green and Mays.  She relies heavily upon
Thompson, but Thompson's holding with respect to the mistake-of-fact defense is entirely consistent
with the conclusion that the defense applies only if the mistake negates the culpable mental state
required for the offense.  When the State seeks to transfer a culpable mental state from one offense
to another, the mistake-of-fact defense may be available to negate the culpable mental state for the
unintended, transferee offense. (34)  Judge Cochran recites Thompson's "three important observations"
about the prior mistake-of-fact statute, which included the first observation that the mistake did not
have to negate the culpable mental state required for the offense, but of the three observations, we
identified only the second--involving the reasonableness requirement--as being carried forward
from prior law. (35)  Judge Cochran criticizes McQueen as relying erroneously upon the Practice
Commentary in arriving at its conclusion that a culpable mental state must attach to the "without the
effective consent" element of the offense of unauthorized use of a motor vehicle, but McQueen's
holding appears to rest on considerations independent of the mistake-of-fact defense, as the opinion
relied heavily upon McClain v. State, (36) a case that construed the theft statute (37) and which did not
involve an issue regarding mistake of fact. (38)
	Judge Cochran gives some examples of offenses to which she believes the mistake-of-fact
defense should apply, but in most, if not all, of those cases, a culpable mental state attaches to the
element about which a mistake might be made.  For instance, Dangerous Dan goes moose hunting
but shoots a person by mistake and, under Judge Cochran's theory of mistake-of-fact, he is not guilty
of murder. (39)  But in an intentional and knowing murder, the State would already have to prove that
the defendant intended or knew that the being he killed was "an individual," elsewhere defined as
"a human being who is alive." (40)  A failure to prove intentional or knowing killing of an individual
would already exculpate Dan from murder, without regard to mistake of fact. 
	Judge Cochran cites theft as a classic example of the application of mistake of fact to an
element--without consent--to which a culpable mental state does not attach, but under McClain,
the required culpable mental state includes the owner's lack of consent. (41)  She cites Hill v. State, (42)
a prosecution for intentionally dispensing a controlled substance without a valid medical purpose,
as involving an example of when mistake of fact could apply to an element--without a valid medical
purpose--that was not embraced by a culpable mental state.  The opinion in Hill does not supply the
text of the controlled substances statute at issue, (43) but my research suggests that the statute is
structured in such a way that the culpable mental state applies to both the dispensing and the absence
of a valid medical purpose. (44)  Moreover, Hill quotes the portion of the Practice Commentary stating
that mistake of fact "constitutes a defense only if it negates the culpable mental state" (45) and nothing
in Hill suggests that it was following a contrary rule. (46)  Judge Cochran suggests her reasoning would
apply to possession of controlled substances, but in a controlled-substances prosecution, the State
is required to prove that the accused knew that the matter was contraband. (47) 
	Judge Cochran acknowledges that her rule would cause the mistake-of-fact defense to apply
to strict liability, public welfare offenses.  In essence, her view would eliminate strict liability
offenses in Texas except where a statute explicitly provides that mistake of fact is not a defense.  Her
view would also eliminate strict liability elements within other offenses, many of which were created
long after this Court had construed the mistake-of-fact defense as applying only when the mistake
negates the culpable mental state.  For example, for capital murders of children under age six, (48) we
have held that there is no requirement that the defendant know or intend that his victim be under six
years of age. (49)  But under Judge Cochran's view, a defendant might claim that he reasonably, but
mistakenly, believed that the child was seven years old.  It appears also that she would overrule Mays
and allow a capital-murder defendant to attempt to show that he was reasonably mistaken about
whether a police officer was acting in the lawful discharge of an official duty.  Untold numbers of
offenses would be affected by her view.
	And if we adopted not just Judge Cochran's rule, but the entirety of her reasoning, defendants
would be adversely affected in ways that the legislature never anticipated.  A hunting accident that,
until now, would have been considered at most to be criminally negligent homicide or manslaughter
would become murder if the defendant honestly, but unreasonably, thought he was shooting a deer
instead of a person.  The sweep of the theft statute would be substantially broadened to encompass
those who honestly believed that they had consent to take property but whose beliefs were
determined to be unreasonable.  Controlled-substance convictions could be had against persons who
honestly, but unreasonably, believed that they were in possession of something innocuous.  In short,
Judge Cochran's view would produce a sea-change in the criminal law.
	 The "interests of stare decisis are at their height for judicial constructions of legislative
enactments upon which the parties rely for guidance in conforming to those enactments." (50) 
Furthermore, when a judicial construction of a statute "is longstanding, there is some force to the
argument that, if the Legislature did not agree with the judicial interpretation, it would have acted
to change the statute." (51)  We should not change our construction of a statute to produce the dramatic,
far-reaching change in the law that would occur here without being certain that our prior construction
of the statute was incorrect.  Given the language of various provisions in the Penal Code, the Practice
Commentary, and the history of the mistake-of-fact provision, I do not believe our prior construction
has been shown to be incorrect.
	With these comments, I join the Court's opinion.
Filed: May 15, 2013
Publish    	
1.   Tex. Penal Code § 8.02(a).
2.   Id. §1.07(a)(22).
3.   Id. § 6.02 (title).
4.   Id. § 6.02,  passim.
5.   Id. § 6.02(a)-(c), (d).  See also id. § 6.02(f).
6.   Id. § 6.02(e).
7.   See Hicks v. State, 372 S.W.3d 649, 653 & n.4 (Tex. Crim. App. 2012); Contreras v.
State, 312 S.W.3d 566, 585 (Tex. Crim. App. 2010); Wasylina v. State, 275 S.W.3d 908, 910
(Tex. Crim. App. 2009); id. at 912 (Price, J., concurring).
8.   See Tex. Penal Code §§ 1.07(13), 6.02, 8.02(a) (1974).
9.   See Smith v. State, 309 S.W.3d 10, 14 (Tex. Crim. App. 2010) ("Since the Legislature
modified Article 21.15 as part of the same legislation that enacted the 1974 Penal Code, it must
have been aware of the terms of Section 6.03(c) of the Penal Code and intended for Article 21.15
to be given effect.").
10.   See McQueen v. State, 781 S.W.2d 600, 602 n.2, 603 (Tex. Crim. App. 1989); Beggs v.
State, 597 S.W.2d 375, 378 (Tex. Crim. App. 1980). 
11.   See Boykin v. State,  818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991).
12.   See id.
13.   Seth S. Searcy, III & James R. Patterson, V.A.P.C., § 8.02, Practice Commentary, Vol.
1, p. 212 (first paragraph) (1974).  See also id. at p. 213 (first full paragraph) ("Section 8.02,
however, clearly specifies that mistake of fact exculpates only if it negates the culpable mental
state.").
14.   Thompson v. State, 236 S.W.3d 787, 798 (Tex. Crim. App. 2007).  I disagree with Judge
Cochran's implication that the practice commentary may be disregarded because it "was written by
a practitioner, not any court or legislator, and it was written for the 1970 Proposed Penal Code, not
the provision that was actually enacted in 1974." First, Seth Searcy, who was responsible for the
commentary that applied to § 8.02, was not just any practitioner: he was the second director of the
Penal Code revision project.  See Seth R. Searcy, III, V.A.P.C., Foreword, Vol. 1, p. XXV (1974)
("prepared the commentary for the sections in Titles 1, 2, 5, 9, and Chapter 47 of Title 10"); T.
Gilbert Sharpe, V.A.P.C., Introduction, Vol. 1, p. VII (1974) (describing Searcy's role in the project). 
Second, the Practice Commentaries were commentaries on the 1974 Penal Code, though they were
built upon the earlier committee comments to the proposed code and were sometimes identical. 
Searcy, Foreword, at XXIV-XXV.
15.   Thompson, 236 S.W.3d at 799.
16.   Id.
17. Id. ("The drafters of the proposed penal code viewed the mistake of fact defense as
essentially redundant of the requirement that the State prove the mental element of an offense,
but they included the defense as a method of placing upon the defendant 'the burden of
producing evidence' so that a mistake of fact is something 'the prosecution does not have to
negate unless raised.'  That view was maintained in the practice commentary to the current
provision."). 
18.   The transferred-intent statute in the enacted code was entirely different from the version
in the proposed code, and the mistake-of-fact statute in the enacted code contained a reasonableness
requirement not contained in the proposed code's version.  See id. at 797-99.  The reasonableness
requirement was the only element of the mistake-of-fact statute that we identified as being derived
from prior law.  Id. at 794.
19.   Compare Tex. Penal Code § 8.02 (the current statute) ("if his mistaken belief negated
the kind of culpability required for the commission of the offense") to State Bar Committee on
Revision of the Penal Code, TEXAS PENAL CODE: A Proposed Revision, Final Draft, §
8.02(a)(October 1970) (the proposed code) ("if his ignorance or mistake negated the intent,
knowledge, recklessness, or criminal negligence required to establish an element of the offense
charged") and Tex. Penal Code, Art. 41 (1948) (the prior statute) ("the person so acting under a
mistake would have been excusable had his conjecture as to the fact been correct").
20.   See previous footnote.
21.  Tex. Penal Code § 1.03(b) ("The provisions of Titles 1, 2, and 3 apply to offenses
defined by other laws . . . .); cf. State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2007)
(conspiracy statute does not apply to offenses outside of the Penal Code because it is contained in
Title 4 and only Titles 1, 2, and 3 apply to offenses outside the Penal Code).  
22.   See, e.g., Tex. Agric. Code § 71.058(a) (wilfully or negligently); Tex. Bus. & Com.
Code § 17.11(b), (c) (wilfully); Tex. Family Code § 162.206 (wilfully).
23.   Green v. State, 221 S.W.2d 612 (Tex. Crim. App. 1949).  I include the first name in my
reference to the case because there is another important Green case that I will address below.
24.   See this opinion, footnote 19.  See also Tex. Penal Code, Art. 41 (1925) (essentially same
language as 1948 statute); Tex. Penal Code, Arts. 46, 47 (1895, 1911) (same); Tex. Penal Code,
Arts. 45, 46 (1879) (same).
25.   See, e.g., Willis v. State, 790 S.W.2d 307, 314 (Tex. Crim. App. 1990);  McQueen, 781
S.W.2d at 602 n.2, 603; Beggs, 597 S.W.2d at 378.  See also Posey v. State, 966 S.W.2d 57, 70
(Womack, J., dissenting). 
26.   Mays v. State, 318 S.W.3d 368, 383-84 (Tex. Crim. App. 2010); Green v. State, 566
S.W.2d 578, 584 (Tex. Crim. App. 1978).
27.   566 S.W.2d at 580-81.
28.   Id. at 584.
29.   Id.
30.   318 S.W.3d at 382.
31.   Id.
32.   Id. at 384; Tex. Penal Code § 19.03(a)(1).
33.   Mays, 318 S.W.3d at 384.
34.   See Thompson, 236 S.W.3d at 800.
35.   Id. at 794.
36.   687 S.W.2d 350 (Tex. Crim. App. 1985).
37.   See McQueen, 781 S.W.2d at 604.
38.   See McClain, passim.
39.   But under Judge Cochran's reasoning if Dan acted unreasonably--if he failed to exercise
reasonable care in determining whether the being shot was a person or an animal--he would be
liable for murder (instead of simple negligence) because mistake of fact exculpates defendants only
if their mistakes are reasonable.
40.   See Tex. Penal Code § 19.02(b)(1); § 1.07(26).
41.   McClain, 687 S.W.2d at 354-55.
42.   765 S.W.2d 794 (Tex. Crim. App. 1989). 
43.   See Hill, passim.
44.   See Ford v. State, 676 S.W.2d 609, 610 (Tex. App.-Beaumont 1984), quoting from
what appear to be a prior version of the referenced statutes: 

[3.08(g)] A practitioner, as defined by Section 1.02(24)(A) of this Act, may not
prescribe, dispense, deliver, or administer a controlled substance or cause a
controlled substance to be administered under his direction and supervision except
for a valid medical purpose and in the course of professional practice.

* * *

[4.08(a)(1)] It is unlawful for any person:

(1) who is a practitioner knowingly or intentionally to distribute or dispense a
controlled substance in violation of Section 3.08.

See also the current statutes with similar language: Tex. Health & Safety Code §§ 481.071(a),
481.128.
45.   765 S.W.2d at 795 n.2
46.   Id., passim.
47.   Ex parte Lane, 303 S.W.3d 702, 709 (Tex. Crim. App. 2009); Poindexter v. State, 153
S.W.3d 402, 405 (Tex. Crim. App. 2005).
48.   See Tex. Penal Code § 19.03(a)(8).
49.   Black v. State, 26 S.W.3d 895, 897 (Tex. Crim. App. 2000).
50.   Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. App. 2010).
51.   Id. at 888.
