Celis, Mauricio Rodriguez

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. PD-1584-11 & 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

C OCHRAN, J., filed a concurring opinion, which W OMACK, and J OHNSON, JJ.,

joined.

OPINION

I agree that the offense of falsely holding oneself out as a lawyer contains only one

culpable mental state, the intent to obtain an economic benefit.1 I also agree that the trial

judge did not err by instructing the jury on the definition of “foreign legal consultant.” But

1

TEX . PENAL CODE § 38.122(a) (“A person commits an offense if, with intent to obtain

an economic benefit for himself or herself, the person holds himself or herself out as a lawyer,

unless he or she is currently licensed to practice law in this state, another state, or a foreign

country and is in good standing with the State Bar of Texas and the state bar or licensing

authority of any and all other states and foreign countries where licensed.”).

I do, however, respectfully disagree with the plurality that appellant “was not entitled to an

instruction on a mistake-of-fact defense because his requested instruction did not negate the

culpability required for the offense.”2 If appellant had offered evidence that he reasonably,

but mistakenly, believed that he was authorized to practice law in Texas, he would have been

entitled to a mistake-of-fact instruction because that mistaken belief would negate the kind

of culpability required for the offense.3

I believe that the plurality mistakenly equates the phrase “negates the kind of

culpability required for the offense” with the phrase “negates the culpable mental state.” The

Legislature knew the difference between those two concepts and carefully chose its phrasing

in defining the mistake-of-fact defense in the 1974 Penal Code.4 We should not rewrite the

words of the statute to eviscerate the defense of mistake of fact. But because appellant failed

to offer evidence to support each aspect of his mistake-of-fact defense, I agree that the trial

judge properly denied a jury instruction on that defense. I concur in the judgment.

2

Plurality op. at 1-2.

3

See TEX . PENAL CODE § 8.02(a) (“It is a defense to prosecution that the actor through

mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind

of culpability required for commission of the offense.”).

4

The term “culpability” is broader than the term “culpable mental state” and refers to the

general “blameworthiness” or “guilt” of the actor. See Evans v. Michigan, ___ U.S. __, 133

S.Ct. 1069, 1077 (2013) (distinguishing between “elements” of an offense and criminal

culpability; “Culpability (i.e. the ‘ultimate question of guilt or innocence’) is the touchstone” for

purposes of an acquittal); United States v. Scott. 437 U.S. 82, 98 (1978) (distinguishing between

judicial determinations that go to “the criminal defendant’s lack of culpability” and relate to “the

ultimate question of guilt or innocence” and those that deal with procedural error); BLACK’S LAW

DICTIONARY 406 (“culpability” is “Blameworthiness; the quality of being culpable”; second

definition refers to Model Penal Code § 2.02); WEBSTER’S UNABRIDGED DICTIONARY 443 (2d

ed.) (“culpability” means “blamableness; liability to blame”).

Celis Concurring Opinion Page 3

I.

Appellant was charged with 23 counts of falsely holding himself out as a lawyer. The

evidence at trial showed that appellant was an investigator for a personal-injury attorney in

Corpus Christi. After having expressed his desire to become a lawyer for several years, he

hung a framed “license” on his office wall one day in 2000. Appellant claimed to have

received his “license” after graduating from Universidad Regiomontana in Monterrey,

Mexico, in 1999. This was while he was working full-time as an investigator in Corpus

Christi.5 In 2001, appellant left his investigator job and joined the law firm of Owen &

Associates. That firm specialized in recruiting personal-injury clients and referring them to

other lawyers for a percentage of the attorney’s fees. While he worked at that firm, appellant

made numerous representations to clients, office staff, and other attorneys that he was an

attorney licensed to practice law in Mexico.

In 2005, appellant formed CGT Law Group International6 and he repeatedly claimed

to be a licensed attorney in Mexico.7 During a civil lawsuit to recover attorney’s fees in

5

Gabriel Cavazos, a law-school professor in Monterrey, testified that it would be

impossible to work full time in Corpus Christi and simultaneously obtain a law degree in

Mexico.

6

“CGT” stands for Celis, Gwyther, and Talapia, the three people who formed the

partnership.

7

For example, appellant’s CGT business cards stated that he was an attorney licensed in

Mexico, as did the Owen & Associates business cards. The website for CGT noted, in

appellant’s biographical section, that he was a licensed attorney in Mexico. Appellant told

various clients, including Paloma Steele, that he was a licensed attorney in Mexico. In the CGT

professional-liability insurance application, appellant stated that he was licensed in Mexico,

admitted to the bar in 2000, and was a member in good standing with the Mexican Bar

Celis Concurring Opinion Page 4

Zapata County, appellant admitted that he did not have a license or “cedula” to practice law

in Mexico. He was unable to produce documentation of any law license or law degree.

The evidence at trial showed that appellant was not a lawyer, had never been a lawyer

in either Mexico or the United States, had not attended law school, and was not licensed as

a lawyer in either Mexico or the United States. Appellant’s civil-lawsuit testimony

established that appellant did not have a United States law license or a Mexican “cedula,” 8

but appellant stated that “I’m considered a lawyer in Mexico” because he has a diploma in

“judicial sciences”9 even though it has never been registered with the Ministry of Education,

which is a prerequisite for obtaining a “cedula” to practice law.10 It was undisputed that

appellant was not in good standing with either the Texas State Bar or the Mexican licensing

authority. The evidence also showed that, during 2006 alone, appellant received over $1.3

Association.

8

According to trial testimony, the Texas Board of Law Examiners requires attorneys from

Mexico to produce (1) a “cedula” as evidence of that person’s ability to practice law in Mexico,

and (2) a certificate from Mexico’s Ministry of Education stating that the person is currently

meeting the requirements to be an attorney in Mexico. Appellant never produced either of these

documents. Even with those documents, a person could only advise clients about the laws of

Mexico as a “foreign legal consultant”; he could not practice personal-injury law in Texas.

9

Despite promises to do so, appellant never produced any diploma or other certificate

stating that he had completed a course of legal study at the Universidad Regiomontana.

10

Appellant called two witnesses to testify about requirements to practice law in Mexico.

One of them, an attorney in appellant’s law firm, said that it is not necessary to go to law school

or obtain a law license to practice law in Mexico. “Anybody who goes and wants to practice in

the four areas of amparo, employment law, agrarian law, and criminal law can do that. Anybody

here can do that. And they can go to Mexico and do that.” When the prosecutor asked the

witness if “every single Mexican citizen is licensed to practice law?” the witness responded, “As

long as they’re not liars and they’re not mentally incompetent.”

Celis Concurring Opinion Page 5

million in attorney’s fees while at Owens & Associates.

The jury convicted appellant of fourteen counts of falsely holding himself out as a

lawyer and sentenced him to ten years’ probation and a $10,000 fine on each count.

The court of appeals rejected appellant’s eighteen points of error, including three

issues related to the jury charge, and affirmed the trial court’s judgment.11 The court of

appeals rejected appellant’s claim that he was entitled to an instruction on mistake of law

because

[a]ppellant’s alleged belief that he was licensed to practice law in Mexico and

in good standing with the licensing authority in Mexico does not negate the

culpable mental state to commit the offense. Therefore, appellant was not

entitled to a mistake of fact instruction regarding his belief that he was

licensed to practice law in Mexico and in good standing with the licensing

authority in Mexico.12

According to that court, a person who has taken all reasonable steps to ensure compliance

with the legal attorney-licensing requirements and who reasonably believes that he is

authorized to practice law in Texas is nonetheless subject to significant criminal punishment

even though his mistaken belief negates the kind of culpability required for the offense and

he is morally blameless. This cannot be. And it is not a correct interpretation of the law.

II.

A. The Origins of the Mistake-of-Fact Defense.

The history of the Texas mistake-of-fact provision was summarized by Presiding

11

Celis v. State, 354 S.W.3d 7 (Tex. App.–Corpus Christi 2011).

12

Id. at 29.

Celis Concurring Opinion Page 6

Judge Keller in Thompson v. State.13 She noted that, before enactment of the 1974 Code, the

mistake-of-fact defense was codified in Article 41 of the 1948 Penal Code. That provision

read as follows:

If a person laboring under a mistake as to a particular fact shall do an act

which would otherwise be criminal he is guilty of no offense, but the mistake

of fact which will excuse must be such that the person so acting under a

mistake would have been excusable had his conjecture as to the fact been

correct, and it must also be such a mistake as does not arise from a want of

proper care on the part of the person so acting.14

This statute (or its predecessor, Article 4515 ) defined and governed the mistake-of-fact

defense in Texas for almost 100 years. The statutory defense applied to virtually all offenses

and could be applied to any “particular fact” if a mistake about that fact would excuse the

actor “had his conjecture as to the fact been correct[.]” It was applicable to a wide variety

of facts that included the following

• Whether the defendant reasonably believed that the timber he “carried away”

belonged to Mr. X who authorized the defendant to take it, or Mr. Y who

13

236 S.W.3d 787, 793-800 (Tex. Crim. App. 2007).

14

TEX . PENAL CODE art. 41 (1948).

15

In 1882, Articles 45 & 46 of the Texas Penal Code read as follows:

Art. 45. No mistake of law excuses one committing an offense; but if a person

laboring under a mistake as to a particular fact shall do an act which would

otherwise be criminal, he is guilty of no offense.

Art. 46. The mistake as to fact which will excuse, under the preceding article,

must be such that the person so acting under a mistake would have been excusable

had his conjecture as to the fact been correct; and it must also be such mistake as

does not arise from a want of proper care on the part of the person committing the

offense.

Celis Concurring Opinion Page 7

claimed ownership of the land on which the timber had grown;16

• Whether the defendant reasonably believed that he did not know it was an

election day in a prosecution for keeping his saloon open on election day;17

• Whether the defendant, on trial for bigamy, reasonably believed that his first

wife was dead before he married his second wife;18

• Whether the defendant, on trial for kidnapping and abducting a female minor

for the purpose of prostitution, reasonably believed that the girl was over 17

and went with him voluntarily;19

• Whether the defendant, in a negligent homicide prosecution, reasonably

believed that “he had taken the cartridges from the gun, as was always his

custom under such circumstances”;20

• Whether the defendant reasonably believed that the liquor that he sold was not

intoxicating;21

• Whether the defendant reasonably believed that the scales he used to weigh

cotton were accurate rather than being a false weighing device;22

• Whether defendant, charged with violating the Pure Food Law by selling

adulterated food, reasonably believed that the cans he had for sale were not in

16

Lackey v. State, 14 Tex. App. 164, *1 (Tex. App. 1883); see also Donahoe v. State, 23

Tex. App. 457, 458 (Tex. App. 1887) (taking property belonging to another under a mistaken

belief that it belongs to a third person, who has authorized the taker to remove similar property

belonging to him, is not theft).

17

Hailes v. State, 15 Tex. App. 93, *1 (Tex. App. 1883).

18

Watson v. State, 13 Tex. App. 76, *4 (Tex. App. 1882).

19

Mason v. State, 14 S.W. 71, 71 (Tex. App. 1890).

20

McCray v. State, 140 S.W. 442, 443 (Tex. Crim. App. 1911).

21

Joyce v. State, 120 S.W. 453, 455 (Tex. Crim. App. 1909).

22

Smith v. State, 121 S.W.2d 347, 347-48 (Tex. Crim. App. 1938).

Celis Concurring Opinion Page 8

a bad condition;23 and

• Whether the defendant meat seller reasonably believed that the meat he sold

did not contain forbidden sulphites.24

There were two distinct situations in which no instruction on a reasonable mistake of fact

instruction was given to the jury: (1) when the mistake went to the felonious intent–the

culpable mental state; in that situation any honest mistake, even a stupid one, was sufficient

to exonerate the defendant;25 and (2) when the defendant was charged with statutory rape;

23

Keeton v. State, 151 S.W.2d 819 (Tex. Crim. App. 1933).

24

Neill v. State, 225 S.W.2d 829, 830 (Tex. Crim. App. 1950) (“Under the express

provisions of Art. 709, P.C., the sale of an article of food containing sulphite is made unlawful.

Neither knowledge nor intent is a part of that offense. Lack of knowledge on the part of the

accused that the article of food contained sulphite arises only as a matter of defense under the

general statute relating to the defense of mistake of fact.”).

25

Neeley v. State, 8 Tex. App. 64, *1-2 (Tex. App. 1880) (quoting the Texas Supreme

Court’s discussion in Bray v. State, 41 Tex. 204 (Tex. 1867), to the effect that the statutory

provisions of mistake of fact and its “want of proper care” limitation applies only “to acts

‘otherwise criminal,’ or acts in themselves criminal if unexcused, and not to acts which become

criminal only when committed with a fraudulent or felonious intent”; jury instructions that

required a finding of “proper care” when defendant claimed that he had a “good faith” belief that

the cow he killed he had bought from Mr. X, when, in fact, it belong to Mr. Y); see also Brown v.

State, 43 Tex. 478, *2 (Tex. 1875), a case in which the defendant was convicted of falsely

holding himself out as a notary public, in which the Texas Supreme court explained,

It was not the intention of the law to punish one who honestly believed himself

entitled to the office in which he assumed to act. The language of the statute,

“falsely assume or pretend,” implies a guilty knowledge. The ordinary test of

criminality is the criminal intent or guilty knowledge; and in this case we think the

statute makes such intent or knowledge an essential constituent of the offense.

The provisions of the code as to mistake do not apply to offenses of this character.

(See Buck Bray v. The State, 41 Tex., 203.).

Id. at *2 (some citations omitted). Thus, if the statute required an intentional or knowing mental

state concerning the element about which the defendant was mistaken, any mistake, not merely a

reasonable mistake, negated that culpable mental state and exculpated the defendant.

Celis Concurring Opinion Page 9

in that situation, Texas, like the majority of states, concluded that even a reasonable mistake

about the minor’s age would not exculpate a defendant because an underage girl was legally

incapable of consenting to an intimate act.26

In Thompson, we made “three important observations” about this statutory defense:

! “First, the mistake did not have to negate the culpable mental state required for

the offense; all that had to be shown was that no offense would have been

committed if the mistaken belief had been correct.”27 Thus, the mistaken fact

merely had to negate the general culpability or blameworthiness of the

conduct, and the mistake could relate to any element of the offense.

! “Second, the defense contained a requirement that the mistake ‘not arise from

a want of proper care,’ which is roughly equivalent to the current statutory

requirement that the defendant’s mistaken belief be ‘reasonable.’”28 Then, as

now, the jury generally decided whether a given mistake was “reasonable” or

“did not arise from a want of proper care.” 29

26

Robertson v. State,102 S.W. 1130, 1131 (Tex. Crim. App. 1907) (“Under the decisions

in this state, a person accused of rape on a girl under 15 years of age cannot justify his act by

proof that he believed the girl was over 15 years of age. The decisions in Texas are uniform on

this proposition.”); see generally United States v. Ransom, 942 F.2d 775, 776 (10th Cir. 1991)

(“The history of the offense of statutory rape indicates that from ancient times the law has

afforded special protection to those deemed too young to understand the consequences of their

actions. The more prevalent view seems to be that these statutory provisions did not require the

prosecution to show that a defendant believed the victim to be under the lawful age of consent

and that no defense was allowed for a reasonable mistake of age.”). Texas has always followed

this view, despite the fact that it was never the view of the English common law which did

exonerate a statutory rape defendant who made a reasonable mistake of the girl’s age. See

Myers, Reasonable Mistake of Age, 64 MICH . L. REV . 105, 110 (1965) (“Reasonable mistake of

age has never been denied as a defense in an English statutory rape case.”).

27

236 S.W.3d at 794.

28

Id.

29

Id. Sometimes a mistake-of-fact instruction would not be submitted to the jury: (1)

when that mistake is unreasonable as a matter of law (see Mays v. State, 318 S.W.3d 368, 383

(Tex. Crim. App. 2010) (“although the general rule is that the jury must determine the relative

credibility of the evidence raising a ‘reasonable belief’ about a fact, reliance upon paranoid

Celis Concurring Opinion Page 10

! “Third, the defense did not specify that a mistake could result in liability for

a lesser-included offense; rather, the statutory language suggested that the

defense applied only when the mistake would completely exonerate the

defendant of any offense.”30 But the defense did apply if the defendant would

not be guilty of any offense if his reasonable belief had been correct.

We noted that the distinction between mistakes that relate to the culpable mental state

(for which no instruction is necessary and for which the defendant need not show his mistake

was a reasonable one)31 and mistakes that relate to other facts or elements (for which an

instruction is necessary and for which the defendant must show that his mistake was a

reasonable one) was discussed in the 1949 case of Green v. State.32

In Green, the defendant was charged with stealing hogs; his defense was that he

beliefs and delusions negates the type of reasonableness that an ordinary and prudent person

would have under the circumstances”)); and (2) when there is no evidence in the record that

would support a finding that the mistake was a reasonable one (See Hill v. State, 765 S.W.2d

794, 795-97 (Tex. Crim. App. 1989) (noting that Section 2.03 of the Penal Code requires the

defendant to produce evidence supporting a defense, and concluding that the defendant “was

entitled to have the jury instructed on the defense of mistake of fact if there was some evidence

before the jury that through mistake he formed a reasonable belief about a matter of fact and his

belief negated the culpability essential to the State’s case.”); see generally Shaw v. State, 243

S.W.3d 647, 657-58 (Tex. Crim. App. 2007)).

30

Thompson, 236 S.W.3d at 794.

31

See id. at 796-97 (explaining that, under the Model Penal Code, a mistake need not be

“reasonable” and no special jury instruction need be given because the ignorance or mistake

simply negates a required culpable mental state; “The Model Penal Code commentary viewed

‘mistake of fact’ as being a mere evidentiary issue”); see also 1 PAUL H. ROBINSON , CRIMINAL

LAW DEFENSES § 62(d), at 262 (1984) (noting that the Model Penal Code “does not provide a

general mistake of fact defense but simply states the obvious: If a culpable state of mind is

required by an offense definition and cannot be proven because of the defendant’s ignorance or

mistake, then the defendant cannot be convicted of the offense.”).

32

221 S.W.2d 612 (Tex. Crim. App. 1949) (op. on reh’g).

Celis Concurring Opinion Page 11

thought that he owned the hogs. The defendant was entitled to an acquittal if he honestly

believed he had a claim of right to the hogs, even if that was an unreasonable belief, because

it rebutted any intent to steal.33 Thus, a mistake of fact that rebutted the culpable mens rea

(1) did not require any mistake-of-fact instruction, and (2) did not need to be reasonable or

“arise from a want of proper care.” As we stated in Thompson, the Green Court held that “a

finding of proper care was not required when intent was an element of the offense and the

mistake negated that intent.”34 We noted that Green “emphasized that the rule that the jury

should not be instructed on the ‘proper care’ element of mistake of fact applied ‘only to those

crimes where the unlawful intent is an essential element without which the offense does not

arise.’”35 Green clearly explained that if the mistake of fact directly rebuts the mens rea, no

instruction on mistake of fact is necessary. Therefore, it was error to instruct the jury that

Green’s mistake concerning ownership of the hogs had to be reasonable.” 36

The lesson from Green is that an honest mistake that negates the statutory culpable

33

Id. at 616.

34

Thompson, 236 S.W.3d at 794.

35

Id. at 795; see also ROBINSON , supra note 31, at 262.

36

221 S.W.2d at 616 (concluding that the defendant need not show that his mistake

depended upon reasonable diligence because “[a]n intent to steal property and a bona fide claim

of right to take it are incompatible. One who takes property in good faith, under fair color of

claim or title, honestly believing that he is its owner and has a right to its possession or that he

has a right to take it, is not guilty of larceny even though he is mistaken in such belief, since in

such case the felonious intent is lacking”; because defendant’s mistake negated the essential

element of “intent to steal,” jury should not have been instructed that it could acquit only if

defendant’s mistaken claim of ownership was reasonable as well as in good faith) (internal

quotation marks omitted).

Celis Concurring Opinion Page 12

mens rea need not be reasonable, but an honest mistake that concerns a different element of

the offense, such as the surrounding circumstances, must be reasonable. That distinction in

Green is the basis for the defense of mistake of fact under Section 8.02, which deals solely

with “reasonable” mistakes about elements other than the culpable mental state.

B. The Model Penal Code Mistake-of-Fact Provision Contrasted to the Texas

Provision.

In Thompson, we also contrasted the Model Penal Code provision concerning the

mistake-of-fact defense to the corresponding Texas statute. We noted that the 1970 Proposed

Texas Penal Code followed the Model Code provision and did not require the mistake to be

a reasonable one.37 Under the proposed code, the mistake-of-fact defense read:

It is a defense to prosecution that the actor was honestly ignorant or mistaken

about a matter of fact or law if his ignorance or mistake negated the intent,

knowledge, recklessness, or criminal negligence required to establish an

element of the offense charged.38

We noted that the drafters of the proposed 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.’” 39

37

236 S.W.3d at 798.

38

STATE BAR COMM ’N , 1970 PROPOSED PENAL CODE § 8.02(a).

39

Thompson, 236 S.W.3d at 799.

Celis Concurring Opinion Page 13

Mistake of fact was redundant in the 1970 draft because, under the Model Penal Code

and the 1970 proposed Texas Code, a culpable mental state attached to every essential

element of the offense. As the Practice Commentary to the 1974 Penal Code notes,

The 1970 proposed code contained a section 6.06 providing that “if the

definition of an offense prescribes a culpable mental state but does not specify

the conduct, circumstances surrounding the conduct, or result of the conduct

to which it applies, the culpable mental state applies to each element of the

offense.” 40

But the Texas Legislature did not enact that provision. It specifically rejected the suggestion

of the original code drafters and maintained its legislative right to attach culpable mental

states only to the specific elements that it chose. Thus, Section 6.02(b), the Texas provision

dealing generally with culpable mental states, reads quite differently from the corresponding

Model Penal Code provision. Section 6.02 reads:

(a) Except as provided in Subsection (b), a person does not commit an offense

unless he intentionally, knowingly, recklessly, or with criminal negligence

engages in conduct as the definition of the offense requires.

(b) If the definition of an offense does not prescribe a culpable mental state,

a culpable mental is nevertheless required unless the definition plainly

dispenses with any mental requirement.41

In Texas, the required culpable mental state applies to the conduct element, but the

Legislature may define offenses in which the culpable mental state also explicitly applies to

other elements. The Model Penal code provision, on the other hand, explicitly requires a

culpable mental state for each material element. It reads:

40

TEX . PENAL CODE § 8.02, Practice Commentary.

41

TEX . PENAL CODE § 6.02.

Celis Concurring Opinion Page 14

Except as provided in Section 2.05 [defining strict liability offenses], a person

is not guilty of an offense unless he acted purposely, knowingly, recklessly or

negligently, as the law may require, with respect to each material element of

the offense.42

42

MODEL PENAL CODE § 2.02(1). Sometimes Texas judges clearly would have preferred

a Model Penal Code method of attaching a culpable mens rea to every element of an offense.

Judge Clinton made a persuasive–if intellectually challenging–argument for the wisdom of a

hybrid Model Penal Code policy in his concurring opinion in Lugo-Lugo v. State, 650 S.W.2d 72,

85-89 (Tex. Crim. App. 1983). He did it by focusing on the concept of culpability rather than

culpable mental states. But culpability is a broader concept than the more narrow concept of our

four culpable mental states–intentionally, knowingly, recklessly, and negligently. Culpability

includes those subsidiary acts or circumstances surrounding conduct or a result. For example,

murder is the act (“cause”) and the result (“death”). The culpable mental state goes to the

result–a death, but causing a death is only blameworthy as murder if it is the death “of an

individual.” The element “of an individual” is an adjectival description of what kind of death the

actor must intentionally or knowingly cause. Id. at 88. As Judge Clinton noted, “[o]bviously,

circumstances surrounding conduct could make an otherwise benign act dangerous.” Id.

For example, suppose Dangerous Dan is moose hunting and marching through a moose-

infested forest when he sees a moving patch of brown, senses a stirring in the bushes, and then

hears a loud “moooo.” He intentionally shoots at what he reasonably believes is a moose.

Unfortunately, he finds the dead body of a fellow hunter who was wearing a moose-brown jacket

and holding a moose-calling horn. Dan committed the bad act–he caused a death–and he did so

with the culpable mens rea–intentionally–but he was mistaken about the type of death he caused;

he killed an individual rather than a moose. His mistake negates the kind of culpability required

for the offense of murder (shooting a moose during hunting season is not murder), and, if a jury

finds that his mistake was a reasonable one, he should be acquitted of murder, even though his

mistake did not go to the culpable mental state of “intentionally.” Our law does not punish every

intentional killing as murder, only those intentional killings of individuals. What matters in this

example is whether Dan’s mistake was a reasonable one under all of the circumstances, so the

jury must be instructed about the statutory mistake-of-fact defense.

Now look at an example of a mistake that negates the culpable mental state. Suppose the

same hunting scenario, but this time Dan knows that his wife, not a moose, is hiding in the

bushes. He testifies that he shot his rifle into the air to warn her that a real moose was charging

at her from behind. The bullet goes up and then comes back down into his wife’s head, killing

her instantly. His defense is that he mistakenly thought a bullet shot upwards could not come

down with enough velocity to hurt someone, and he did not intend to cause anyone’s death, much

less that of his wife, when he shot his rifle. In this case, even a stupid, unreasonable mistake,

rebuts the culpable mental state of intent, and the defendant does not need, and is not entitled to,

an instruction on the statutory defense of mistake of fact. His defense is like that of Farmer

Green who honestly (but perhaps unreasonably) thought the neighbor’s hogs were his own. See

Green v. State, 221 S.W.2d 612 (Tex. Crim. App. 1949) (op. on reh’g).

Celis Concurring Opinion Page 15

The Texas Legislature did not incorporate the language about “each material element” into

Section 6.02(b), which requires only one culpable mental state or mens rea for one criminal

act. We must assume that this omission was intentional. The Texas Legislature wanted to

be able to add additional mens rea requirements to specific elements of certain offenses and

omit them in others when it wanted to cast the risk–of a bad act, bad result, or the failure to

pay attention to attendant circumstances–upon the actor.

C. The Purpose of the Texas Statutory Defense of Mistake of Fact.

Generally, the legislature has great discretion in deciding upon the elements of a

criminal offense and what culpable mental state, if any, applies to which elements of the

offense.43 That discretion is somewhat limited by Section 6.02(b) of the Texas Penal Code

which states, “If the definition of an offense does not prescribe a culpable mental state, a

culpable mental state is nevertheless required unless the definition plainly dispenses with any

mental element.”44 Thus, if a statutory offense does not include any culpable mental

state–intentionally, knowingly, recklessly, or negligently–courts will presume that the

legislature simply forgot and will read one into the statute unless it is manifestly clear that

43

See Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008) (“The Legislature

has considerable discretion in defining crimes and the manner in which those crimes can be

committed. That discretion is limited only by the Due Process Clause of the federal constitution

and the Due Course of Law provision of the Texas Constitution.”); Willis v. State, 790 S.W.2d

307, 314 (Tex. Crim. App. 1990) (“the power to create and define offenses rests within the sound

discretion of the legislative branch of government”); see, e.g., Lambert v. California, 355 U.S.

225, 228 (1957) (“There is wide latitude in the lawmakers to declare an offense and to exclude

elements of knowledge and diligence from its definition.”).

44

TEX . PENAL CODE § 6.02(b).

Celis Concurring Opinion Page 16

the legislature intended a strict-liability offense–one without any culpable mental state.45

However, the presumption that the legislature intended a culpable mental state applies

only to the criminal conduct or “bad act,” not to every element of the offense.46 One mens

rea (intentionally, knowingly, recklessly, negligently), plus one “bad act,” equals one

criminal offense. The culpable mental state must relate to the conduct (or the result), but not

to any other element unless the legislature says so. Sometimes the legislature wants to attach

a culpable mental state to more than one element, sometimes it does not.47 For example, the

State need not prove that a capital-murder defendant knew that the child he intentionally

murdered was under ten years of age,48 but it must prove that the capital-murder defendant

knew that the peace officer he intentionally murdered was a peace officer.49 By choosing

45

Aguirre v. State, 22 S.W.3d 463, 472 (Tex. Crim. App. 1999).

46

See id. at 473 (noting that omitting a culpable mental state from one portion of a

criminal statute while including it in a second portion is a clear indication that the legislature

intended to dispense with a mental element in that first portion); see also Lomax v. State, 233

S.W.3d 302, 305 (Tex. Crim. App. 2007) (in drafting felony-murder statute, legislature clearly

intended to dispense with any additional culpable mental state beyond that required by the

underlying felony).

47

See Lambert, 355 U.S. at 288 (“The legislature’s authority to define an offense includes

the power “to exclude elements of knowledge and diligence from its definition.”).

48

TEX . PENAL CODE § 19.03(a)(8); see In the Matter of M.A., 935 S.W.2d 891, 894 (Tex.

App.–San Antonio 1996, no pet.) (concluding that the act of murder “requires intentional and

knowing conduct, but there is no additional mens rea requirement attached to the age of the

victim” under § 19.03(a)(8)). The court of appeals noted that Section 19.03(a)(1) requires the

additional culpable mental state that the defendant “knows” that it is a peace officer or fireman

that he is intentionally or knowingly murdering, but the legislature omitted that additional mens

rea when the victim is a child. Id.

49

TEX . PENAL CODE § 19.03(a)(1); see In the Matter of M.A., 935 S.W.2d at 894.

Celis Concurring Opinion Page 17

the wording of Section 6.02(b) instead of the corresponding Model Penal Code wording, the

Texas Legislature kept the authority to add (or not add) a culpable mental state to additional

elements beyond that of the forbidden conduct or result.50 It has used that authority to omit

additional culpable mental states when it wants to cast the attendant risk upon the actor.51

Sometimes a person has taken due care to avoid risk, but he has made a reasonable

mistake about some fact surrounding the offense. He has intentionally done the “bad act,”

but if the facts were as he reasonably believed them to be, he would not have committed any

50

Some examples include: (1) indecency with a child under Section 21.11(a)(1)(A) (“A

person commits an offense if, with a child younger than 17 years . . . the person . . . with the

intent to arouse or gratify the sexual desire of any person . . . exposes the person’s anus or any

part of the person’s genitals, knowing the child is present”). The actor must expose his genitals

with the “intent” to arouse someone’s sexual desire, but he must also “know” that a child is

present. Here, the legislature criminalized the conduct only if the person acted with a specific

intent when he exposed himself and he knew about the attendant circumstances; (2) deadly

conduct under Section 22.05(b)(2) (“A person commits an offense if he knowingly discharges a

firearm at or in the direction of . . . a habitation, building, or vehicle and is reckless as to whether

the habitation, building, or vehicle is occupied”). Here, the actor must engage in the conduct of

shooting a gun with a “knowing” mens rea, and he must be at least “reckless” about the attendant

circumstances of whether there are people in the building or car; (3) receipt of stolen property

under Section 31.03(a),(b)(2) (a person commits an offense if, acting with the intent to deprive

the owner, he . . . appropriates property that is stolen and that he knows was stolen by another).

See Polk v. State, 749 S.W.2d 813, 816 (Tex. Crim. App. 1988) (“The elements of [receiving

stolen property] are (1) a person, (2) with the intent to deprive the owner of property, (3)

appropriates property, (4) which is stolen property, (5) knowing it was stolen, (6) by another.”).

51

See, e.g., Schultz v. State, 923 S.W.2d 1, 3 (Tex. Crim. App. 1996) (only culpable

mental state in child abandonment statute, “intentional,” goes to act of “abandonment,” not to the

“circumstances that expose the child to an unreasonable risk of harm” ; “Had the Legislature

intended to require that the actor be aware of the risk of harm, it would have been a simple matter

to have included language to that effect.”); c.f. TEX . PENAL CODE § 22.10 (offense of leaving a

child in a vehicle requires an intentional leaving as well as knowledge of the circumstances–that

the child is “under seven years old and not attended by a person fourteen or older.”).

Celis Concurring Opinion Page 18

offense.52 He is not morally blameworthy, and his mistake negates the kind of culpability or

blameworthiness that the offense is intended to punish. The mistake-of-fact defense set out

in Section 8.02(a) safeguards conduct that is without guilt from criminal condemnation.53

This is a crucial due-process provision that is not merely a redundant rebuttal of the culpable

52

See, e.g., People v. Watkins, 2 Cal. App. 4th 589, 594, 3 Cal. Rptr. 563, 566 (Cal. Ct.

App. 1992), in which the California court explained the common-law doctrine of mistake-of-fact:

To determine whether a mistake of fact applies we must assume the facts were as

the defendant perceived them. If under this assumed state of facts the defendant’s

actions would not have constituted a crime, the defense applies. Conversely, if

under this assumed state of facts the defendant’s actions would still have been

unlawful, the defense does not apply.

Id. (citations omitted).

53

One of the objectives of the Penal Code is to “safeguard conduct that is without guilt

from condemnation as criminal.” TEX . PENAL CODE § 1.02(4). For example, the situation in Hill

v. State, 765 S.W.2d 794 (Tex. Crim. App. 1989), shows how the statutory mistake-of-fact

defense protects those whose conduct is without guilt even though they have intentionally

committed the forbidden act. Dr. Hill prescribed Ritalin (a controlled substance), to a female

patient. He was convicted of commercially dispensing a controlled substance without a valid

medical purpose. The evidence was undisputed that Dr. Hill intentionally and knowingly

dispensed a controlled substance, but his defense was that the woman (an undercover officer)

told him that she had narcolepsy and that the symptoms she described and test results were

consistent with that condition. He claimed to be mistaken about a specific fact–the patient had

narcolepsy–and a reasonable mistake about that fact negates the kind of culpability required for

the offense. His mistake did not negate the culpable mens rea “intentionally dispense a

controlled substance,” but it did negate an element–“without a valid medical purpose”–and it is

this element that makes the “intentional dispensing” a criminal act. This Court held that Dr. Hill

was entitled to an instruction on mistake of fact, and, because the trial judge had denied his

request for such an instruction, he was entitled to a new trial. Id. at 797-98. On the other hand,

had Dr. Hill contended that he thought it was aspirin that he was prescribing, that evidence would

directly rebut the culpable mens rea. He would not be entitled to an instruction on mistake of

fact, but the jury need not believe that his mistake was reasonable. If he honestly, but stupidly,

believed he was prescribing aspirin, he is not guilty of intentionally dispensing a controlled

substance.

Celis Concurring Opinion Page 19

mental state.54

Take the classic law-school example of “mistake of fact” and theft. Theft is the

appropriation of property with the intent to deprive the owner of that property without his

effective consent.55 The culpable mental state is “with the intent to deprive the owner of

property” and the “bad act” is the taking of property without the owner’s effective consent.

The statute does not explicitly require the actor to know that the owner did not give effective

consent.56 The legislature cast upon the actor the duty to ensure that he is acting with the

54

Some cases in which the fact mistaken does not directly rebut the culpable mental state,

but some other element include those (1) concerning the nature of the substance possessed,

Sands v. State, 64 S.W.3d 488, 493-95 (Tex. App.–Texarkana 2001, no pet.) (defendant entitled

to mistake-of-fact instruction where he testified he thought syringe of methamphetamine

contained vitamin B–12); Pena v. State, 353 S.W.3d 797, 814 (Tex. Crim. App. 2011) (defendant

claimed that truckload of what was asserted to be marijuana was really hemp to be used for

crafts); (2) concerning whether property is “abandoned,” In re F.L.R., 293 S.W.3d 278, 280-81

(Tex. App.–Waco 2009, no pet.) (juvenile was entitled to instruction on mistake-of-fact defense

when he claimed that he thought the sweatshirt he found in bleachers–when no one else was

around and which had no markings or identification on it–had been abandoned, especially when

coupled with private investigator’s testimony that owner told him that he left his sweatshirt

there); (3) concerning whether a person is in a car, Granger v. State, 3 S.W.3d 36, 38-39

(Tex. Crim. App. 1999) (murder defendant who testified that he thought that the parked car he

fired his gun at was unoccupied was entitled to mistake-of-fact instruction); (4) concerning

whether the car that the defendant’s car hit had fled the scene of the accident, Loudermilk v.

State, 993 S.W.3d 382, 384-85 (Tex. App.–Eastland 1999, pet. ref’d) (in trial for failure to leave

identification at accident and for leaving scene of collision without giving required information

to driver of other vehicle, defendant was entitled to mistake-of-fact instruction when he and his

passenger testified that traffic was moving normally after accident, they did not see that other car

that came to rest under overpass, and they believed they were victims of “hit-and-run”).

55

TEX . PENAL CODE § 31.03.

56

Id., § 31.03(b)(1). Theft of stolen property, prohibited by Section 31.03(b)(2)–the very

next section of the theft statute–does require the actor to know that the property was stolen by

another when he appropriates it, so it seems apparent that the legislature consciously omitted any

culpable mental state for the attendant circumstance of “without the owner’s effective consent”

from Section 31.03(b)(1).

Celis Concurring Opinion Page 20

owner’s effective consent when he takes someone else’s property. But here’s the law school

hypothetical of the Dowager’s Umbrella: Because it was about to rain, everyone who came

to the Saturday church meeting, except Dan, brought a black umbrella and placed it into one

of the vestry pigeonholes. Dan received an emergency call to come home during the

meeting. He asked Susie, who was sitting next to him, if he could borrow her umbrella. She

said, “Sure, take it and keep it. I have another. Mine is the black umbrella in the No. 2

pigeonhole.” Dan took the black umbrella from the No. 2 pigeonhole and left.

Unfortunately, that black, gem-encrusted umbrella belonged to the Dowager who had moved

Susie’s umbrella to make room for her own. She filed theft charges against Dan. Dan

appropriated the black umbrella from pigeonhole 2, intending to keep it, and he did not have

the Dowager’s consent. He made a mistake and took the wrong umbrella. But he acted

reasonably in taking what he thought was Suzie’s black umbrella from pigeonhole 2 because

he did have her consent. His conduct is morally blameless. His mistake negates the kind of

culpability required of the offense of theft–taking someone else’s property without their

consent. If his belief had been correct (the umbrella he took was Suzie’s), he would not have

committed the offense of theft.57 The mistake-of-fact defense exculpates Dan.

The law should not punish those who have made reasonable mistakes about the facts

57

See ROLLIN M. PERKINS & RONALD N. BOYCE , CRIMINAL LAW 1045 (3d ed. 1982).

The professors set out the general rule:

[M]istake of fact will disprove a criminal charge if the mistaken belief is (a)

honestly entertained, (b) based upon reasonable grounds and (c) of such a nature

that the conduct would have been lawful and proper had the facts been as they

were reasonably supposed to be.

Celis Concurring Opinion Page 21

or circumstances surrounding their acts. That is the purpose of Section 8.02(a), the Penal

Code defense of mistake of fact. The statutory defense does not go to the culpable mental

state set out in the penal offense because, as Professors Perkins and Rollins explain, “even

an unreasonable mistake, if entertained in good faith, is inconsistent with guilt if it negates

some special element required for guilt of the offense such as intent or knowledge.” 58 Honest

but unreasonable mistakes that directly rebut the required culpable mental state simply negate

one of the State’s elements, and “[i]f any such element is found to be wanting, guilt has not

been substantiated; and hence if proof of a mistake of fact, even without the support of

reasonable grounds, negatives the existence of such an element, it also disproves the charge

itself.” 59

To return to the 1949 case of Green v. State: If Farmer Green honestly believed that

the hogs he killed were his own, it does not matter if his mistake was reasonable. He did not

commit the offense of theft because he did not intend to appropriate someone else’s property.

He is rebutting the State’s element of “intent to deprive” and he does not invoke the mistake-

of-fact defense. If, however, he reasonably but mistakenly thought that the hogs belonged

to Farmer Jones (when in fact they belonged to Farmer Dell) who had given Farmer Green

consent to slaughter his hogs, then the statutory defense applies and Farmer Green is entitled

to an instruction on mistake of fact. Farmer Green had the intent to deprive Farmer Jones of

58

Id. at 1046.

59

Id.

Celis Concurring Opinion Page 22

his hogs, but he thought that he had the owner’s consent to do so. If the hogs had been

Farmer Jones’s then his “conduct would have been lawful and proper had the facts been as

they were reasonably supposed to be.” 60

The question in this case is whether the statutory defense of mistake-of-fact that had

existed in Texas from at least 1867 until 1974 was carried forward in the 1974 Penal Code

or whether the Texas Legislature intended to abandon its tried-and-true approach to that

defense by rendering the statutory defense a virtual nullity. That former approach was simple

and effective: a defendant was entitled to raise a mistake of fact relating to any fact required

for conviction, but it had to be reasonable one before it would exculpate him. The two

exceptions to the general statutory rule were: (1) if the mistake negated the culpable mental

state, no instruction was needed and the defendant’s good faith (even if stupid) mistake

would exculpate him; and (2) the mistake-of-fact defense did not apply to statutory rape

because a child under the legal age could not consent to intimate acts.

Unfortunately, many cases from this Court interpreting and applying the post-1974

Penal Code statutory defense of mistake of fact versus rebuttal of the culpable mental state

have been less than clear. Take, for example, McQueen v. State,61 in which this Court held

that a mistake-of-fact defense applied in an unauthorized use of a motor vehicle case when

the defendant claimed that he had consent to drive what he mistakenly believed was Tim

60

Id. at 1045.

61

781 S.W.2d 600 (Tex. Crim. App 1989).

Celis Concurring Opinion Page 23

Eden’s motorcycle.62 The statutory defense of mistake of fact under Section 8.02 should, and

does, apply to this scenario. McQueen’s mistaken belief, if reasonable, would negate the

kind of culpability required for the offense because, had his belief that Tim Eden did own the

motorcycle been true, then McQueen would not have been guilty of any crime.

Unfortunately, in McQueen, this Court perpetuated the mistake of quoting a statement from

Beggs v. State,63 citing the Practice Commentary to Section 8.02 that the “kind of culpability”

specified in Section 8.02 means “culpable mental state.”64 But that commentary 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. That single little error–relying

upon an inapplicable commentary by a practicing lawyer rather than the explicit language of

the statute–has been responsible for virtually all of the subsequent problems in addressing

the mistake-of-fact defense. Because of that initial error, this Court, in McQueen, concluded

that it would attach a culpable mental state of “knowing” to the element of “without the

effective consent of the owner” so that the mistake-of-fact defense would apply to a culpable

mental state. But the Legislature did not attach a culpable mental state to “without the

62

Id. at 603 (“The mistake of fact was the defendant’s erroneous belief that he had the

owner’s consent to use the vehicle. Since a mistake of fact defense is available only if it negates

the culpable mental state required for he commission of the underlying offense, . . . such requisite

mental state must pertain to the defendant’s belief about the owner’s effective consent.”).

63

597 S.W.2d 375 (Tex. Crim. App. 1980).

64

781 S.W.2d at 603 n.2 (citing Beggs, 597 S.W.2d at 378).

Celis Concurring Opinion Page 24

effective consent of the owner,” and it was not required to do so.65 It could, and did, cast the

duty of care and inquiry upon the actor to inquire as to ownership. But, just as with the

Dowager’s Umbrella, if a person made a reasonable mistake about who the owner was and

whether he had that person’s consent, then he may invoke the statutory defense of mistake

of fact.

D. Mistake-of-Fact and “Licensed to Practice Law.”

The mistake-of-fact defense indisputably would have applied to the offense of falsely

holding oneself out as a lawyer under the pre-1974 Penal Code provision concerning mistake

65

In McQueen, this Court implied that the legislature just forgot to include an explicit

culpable mental state for the element of “without the effective consent of the owner” and

declared that the offense would be one of strict liability unless it judicially added a second one:

Thus, once the State proved that the vehicle was operated at all, the requisite

mental state with regard to the nature of conduct would be self-proved, (we cannot

foresee any time one would operate a vehicle unintentionally or unknowingly),

and the defendant would be held liable regardless of anyone’s awareness of the

owner’s consent or lack thereof. To require culpability only as to the otherwise

lawful act of operating a vehicle wholly fails to “safeguard conduct that is without

guilt from condemnation as criminal.”

Id. at 604. That would be a persuasive argument if the statutory defense of mistake of fact did

not exist and could not be invoked to the element of “without the owner’s effective consent.”

And, in fact, the McQueen Court did not require the State to prove that McQueen knew he did

not have the motorcycle owner’s effective consent; proof “that appellant did not have the consent

of Bobby Akin, the owner of the motorcycle” was sufficient to prove that “appellant knew he did

not have Akin’s consent.” Id. at 604-05. This was all a very topsy-turvy way of coming to the

right conclusion. If the Court had not been beguiled by the inapplicable practice commentary

about how the Texas Legislature supposedly intended that the phrase “the kind of culpability

required for the offense” really meant the different phrase, “the culpable mental state,” this Court

and others would not have made the mistake of inappropriately adding multiple culpable mental

states to offenses when the Legislature did not do so. Presumably the Legislature knew that it did

not need to do so because the statutory defense of mistake of fact was available to a defendant

who had exercised reasonable care, did make reasonable inquiry, and whose reasonable mistake

negated the required culpability for the offense.

Celis Concurring Opinion Page 25

of fact. Indeed, in the 1889 case of Pettit v. State, the court of appeals held that the defendant

doctor, charged with practicing medicine without having first filing his certificate, was

entitled to an instruction on the statutory defense of mistake.66 Practicing medicine without

filing one’s license is directly analogous to, and substantially similar to practicing law

without a license, so if the Texas Legislature carried forward its former mistake-of-law

statute into the 1974 Penal Code, that defense would certainly apply to Section 38.122.

Presiding Judge Keller’s opinion in Thompson is the most recent discussion of the

purpose and history of the current Texas provision dealing with the mistake-of-fact defense

under § 8.02(a).67 The same understanding of the mistake-of-fact defense in Thompson

would also apply to reasonable mistakes concerning whether the defendant was properly

licensed and authorized to practice law in Texas.

The offense of falsely holding oneself out as a lawyer has only one culpable mental

state: the intent to obtain an economic benefit for himself.68 Thus, a person is not subject to

66

14 S.W. 127, 127 (Tex. App. 1889) (defendant had obtained his medical certificate and

given it to a man who said he was going to the county-seat that day and would record the license,

but evidence showed that this man suddenly fell ill and did not make the trip, and defendant had,

meanwhile, treated patients that day; “If the defendant, at the time he practiced medicine as

charged against him, labored under the mistake that his certificate had been filed for record in

Van Zandt county, and if said mistake did not arise from a want of proper care on his part, he was

entitled to be acquitted.”).

67

Id. at 789; see also Louis v. State, 393 S.W.3d 246, 252-54 (Tex. Crim. App. 2012)

(following Thompson, and holding that defendant in capital-murder prosecution was entitled to

mistake-of-fact instruction that he reasonably thought his “spankings” of child would not cause

serious bodily injury).

68

TEX . PENAL CODE § 38.122. See Satterwhite v. State, 979 S.W.2d 626, 628 (Tex.

Crim. App. 1998) (offense of falsely holding oneself out as a lawyer has three elements: “First,

Celis Concurring Opinion Page 26

criminal penalties under this statute if he falsely says that he is a lawyer, but he does not have

any intent to benefit economically from that falsehood. Some non-criminal examples, as the

plurality notes, include a third-year law school student’s “puffery” to friends and relatives

that he is a lawyer, the inmate “writ-writer” who files legal papers for fellow inmates as an

act of friendship, the “catch-me-if-you-can”69 pseudo-lawyer who provides nothing but pro

bono representation.70

In this case, the plurality explains that the Legislature could, and did, cast the duty of

complying with all of the Texas attorney licensing requirements upon the actor. The practice

of law is a highly regulated profession, and legislatures may reasonably heighten the duties

of those in particular professions that affect public health, safety, or welfare.71

appellant intended to obtain an economic benefit for himself by representing Mr. Lemke. Second,

appellant held himself out as a lawyer to Lemke. Thirdly, appellant was not in ‘good standing’

with the State Bar at the time he represented John Lemke because he was in default in the

payment of his bar dues resulting in the suspension of his law license.”) (footnote omitted).

69

See Catch Me If You Can (Dreamworks 2002), the Steven Spielberg movie in which

Leonardo Di Caprio played the role of Frank Abagnale, Jr., who swindled millions as he falsely

acted as a Pan Am pilot, a doctor, and a prosecutor.

70

See Plurality Op. at 13 n.11.

71

Morissette v. United States, 342 U.S. 246, 254-56 (1952) (noting that “public welfare

offenses” regulate “the duties of those in control of particular industries, trades, properties or

activities that affect public health, safety or welfare.”); see also Aguirre v. State, 22 S.W.3d 463,

475 n.44 (Tex. Crim. App. 1999) (noting that the members of certain professions may be

required to meet “special skill and attention” and “if the law is broken there will be a suspicion

that it was a deliberate breach due to self-interest”) (quoting GLANVILLE WILLIAMS, CRIMINAL

LAW 235 (2d ed. 1961)); Tovar v. State, 978 S.W.2d 584, 586-88 (Tex. Crim. App. 1998)

(violation of the Open Meeting Act required only the culpable mental state of knowingly calling

a meeting, not that the person knew whether an open meeting was required).

Celis Concurring Opinion Page 27

The controlling purpose of all laws, rules, and decisions forbidding unlicensed

persons to practice law is to protect the public against persons inexperienced

and unlearned in legal matters from attempting to perform legal services. The

objective is to protect the public against injury from acts or services,

professional in nature, deemed by both the legislature and the courts to be the

practice of law, done or performed by those not deemed by law to be qualified

to perform them.72

But the crime of falsely holding oneself out as a lawyer is not a strict liability offense as it

does contain a culpable mental state requirement: the intent to obtain an economic benefit.73

And, to protect against conviction of a crime when a person has taken all reasonable care to

ensure that he is in compliance with the pertinent attorney licensing requirements, a

defendant may invoke the statutory mistake-of-fact-defense.74 Of course, if the former Penal

72

Brown v. Unauthorized Practice of Law Committee, 742 S.W.2d 34, 41-42 (Tex.

App.–Dallas 1987, writ denied) (citations omitted).

73

See WILLIAMS, supra note 71, at 244 (“we cannot classify crimes exclusively into

crimes of strict responsibility and crimes requiring fault. The same crime may be of strict liability

in respect of one element and require fault in respect of another.”); see, e.g., Zubia v. State, 998

S.W.2d 226 (Tex. Crim. App. 1999) (in offense of injury to child, culpable mental state does not

apply to age of child); Johnson v. State, 967 S.W.2d 848 (Tex. Crim. App. 1998) (same for

offense of indecency with child).

74

See Satterwhite, 979 S.W.2d at 630 (Mansfield, J., concurring). In this prosecution for

falsely holding oneself out to be a lawyer, Judge Mansfield noted:

Concern has been expressed that our holding in this case might lead to criminal

liability for, potentially, thousands of attorneys who inadvertently send their bar

dues in a few days late, whose checks are “lost in the mail” or who, accidently,

send a check for the wrong amount. Another situation, quite common, is where

the check is returned for insufficient funds when the remitter, in good faith,

believed there were sufficient funds in his account to cover the check. I believe

this concern is misplaced. The State must prove intentional, knowing or reckless

conduct on the part of the accused to obtain a conviction under Texas Penal Code

§ 38.122; such would rarely be provable in the instances cited in the two previous

sentences. In any event, anyone indicted under section 38.122, where such

circumstances existed, would have available the defense of mistake of fact under

Texas Penal Code § 8.02.

Celis Concurring Opinion Page 28

Code mistake-of-fact statute was carried forward into the 1974 Penal Code, a mistake-of-fact

defense would apply even to strict-liability, public-welfare offenses such as the sale of

adulterated food or using a false scale, because that defense applied under the former law.75

To establish his entitlement to a mistake-of-fact instruction in the prosecution of an

offense under Section 38.122, the defendant must offer some evidence that he reasonably

believed that

(1) He was currently licensed to practice law in Texas, some other state, or some

other country;

(2) He was currently in good standing with the State Bar of Texas; and

(3) He was currently in good standing with the state bar or other licensing

authority of the licensing state or jurisdiction.76

A defendant is not entitled to a jury instruction on his mistake-of-fact defense unless he has

offered some evidence to support a finding on each of these three requirements.

E. Appellant Was Not Entitled to a Mistake-of-Fact Instruction.

In this case, appellant argues that he offered some evidence to support a finding that

he reasonably believed that he was licensed to practice law in Mexico and was in good

standing with the licensing authority in Mexico. He submitted a written jury instruction to

Id.

75

See supra, notes 14 & 15.

76

See TEX . PENAL CODE § 38.122.

Celis Concurring Opinion Page 29

that effect.77 Unfortunately, appellant failed to offer any evidence (or instruction) that he

reasonably believed that he was a member in good standing of the State Bar of Texas.78

A person who is licensed to practice law in some other state or country cannot just

waltz into Texas and set out his attorney shingle. He must comply with the Texas State Bar

requirements first. It is patently unreasonable for any attorney to think that he could freely

77

Appellant’s requested instruction read as follows:

You are instructed that it is a defense to prosecution that a person 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.

A reasonable belief means a belief that would be held by an ordinary and prudent

person in the same circumstances as the defendant.

So if you find from the evidence in this case that at the time the defendant held

himself out as an attorney licensed in Mexico that he acted under a mistake of

fact, that is, the defendant had a reasonable belief that he was licensed to practice

law in Mexico and was in good standing with the licensing authority in Mexico,

or if you have a reasonable doubt thereof, you will acquit the defendant and find

the defendant “not guilty.”

78

The trial judge instructed the jury on “good standing” as follows:

“Good Standing with the State Bar of Texas” means:

(1) Being a “Member in Good Standing” of the State Bar of Texas; or

(2) Being certified to practice in Texas as a Foreign Legal Consultant

by the Texas Board of Law Examiners.

A “Member in Good Standing” of the State Bar of Texas is someone who meets

and complies with all applicable requirements of the Rules of the Supreme Court

of Texas governing admission to the bar of Texas and who is not in default of

payment of dues and who is not under suspension from practice.

A “Foreign Legal Consultant” is someone certified under the rules of the Supreme

Court of Texas governing admission to the Bar of Texas, and who is considered a

lawyer affiliated with the Bar of Texas.

Celis Concurring Opinion Page 30

roam the world practicing law in whatever jurisdiction he desired simply because he was

licensed to practice law in some other jurisdiction.

Here, the trial judge noted that appellant had not pointed to any evidence that he had

the reasonable but mistaken belief that he was in good standing with the State Bar of Texas

and therefore declined to give an instruction on mistake of fact. Appellant argued that “a

mistake of fact can go to any of the elements of the offense and not to all of them at one

time.” True enough, but appellant’s mistaken belief about being licensed in Mexico and in

good standing in that jurisdiction, if true, would not “negate the kind of culpability required

for the offense” and would not exonerate him from guilt. The practical test for whether a

defendant is entitled to a mistake-of-fact defense is this: If the facts were as the defendant

mistakenly believed them, would he be innocent of the charged offense? 79 In this case,

79

The cases decided under Texas’s former mistake-of-fact statute, did not require that the

mistake totally absolve the defendant from all blame or culpability, rather it would exculpate him

of the charged offense. For example, in one delicious 1920 case, Vyoral v. State, 224 S.W. 889

(Tex. Crim. App. 1920), the defendant was charged with aggravated assault of a female during a

“road rage” altercation in which he, from his car, threw a wrench at Mrs. Garrett, the driver of a

horse buggy. The sole aggravating factor in the case was the fact that the victim was a female,

otherwise the offense was a simple assault. The defendant claimed that he was entitled to an

instruction on mistake of fact when he testified that he reasonably believed that Mrs. Garrett was

a man because she was “wearing a man’s hat and shirt, and presenting the general appearance of

a man while in the buggy[.]” Id. at 889. We explained,

[I]f Mrs. Garrett was wearing the apparel of a man, and presented the appearance

of one, and appellant was misled into the belief that she was a man, without fault

or want of care upon his part, we know of no reason why he would not be afforded

the benefit of the law as applied in criminal cases of an honest mistake of fact.

The mistake, if the jury found it existed, while it would not have excused, it

would have mitigated, the offense.

Id. This mistake did not, of course, rebut the defendant’s culpable mental state of intentionally or

knowingly causing bodily injury, nor did it exculpate him from all culpability, but it did mitigate

Celis Concurring Opinion Page 31

appellant would not be innocent, because he was required to have a reasonable belief that he

was in good standing with the State Bar of Texas as well as being licensed and in good

standing in Mexico.

I respectfully disagree with the plurality’s holding that the mistake-of-fact defense

cannot apply to any element except the culpable mental state, but because appellant failed

to offer evidence of his entitlement to a mistake-of-fact instruction, I concur in the Court’s

judgment.

Filed: May 15, 2013

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the offense, and therefore he was entitled to such an instruction.

Suppose a modern-day actor was charged with aggravated robbery of an elderly person

and article 41 was still Texas law. If the defendant reasonably believed that the person he was

assaulting and whose property he was trying to take was, in fact, under the age of 65 (think Sally

Field, Diana Ross, Mia Farrow, Al Pacino, Harrison Ford, Robert Redford), the defendant could

rely on Vyoral as precedent for his entitlement to a mistake-of-fact instruction that could lower

the offense from a first degree felony offense under Section 29.03(a)(3), to a second degree

robbery under Section 29.02(a).