No.

WR-79302-01

In the
Court of Criminal Appeals
For the
State of Texas



No. 744824-A
In the 351
st
District Court
Of Harris County, Texas


MAURA WIGGINS LEVINE
Applicant
V.
THE STATE OF TEXAS
Respondent


RESPONDENTS BRIEF


DEVON ANDERSON
District Attorney
Harris County, Texas

JOSHUA A. REISS
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
Fax No.: 713/755-5809
Reiss_josh@dao.hctx.net
SBOT#: 24053738


Counsel for the State of Texas

ORAL ARGUMENT REQUESTED
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/28/2014 9:26:39 AM
Accepted 4/28/2014 12:23:18 PM
ABEL ACOSTA
CLERK
April 28, 2014
2


IDENTITY OF PARTIES AND COUNSEL

Maura Levine (the applicant).
Counsel for the applicant: Randy Schaffer, The Schaffer Firm, 1301
McKinney, Suite 3100, Houston, Texas 77010.
Counsel for the State: Assistant District Attorney Joshua A. Reiss, Harris
County District Attorneys Office, 1201 Franklin Street, Suite 600, Houston, Texas
77002.

3

TABLE OF CONTENTS

INDEX OF AUTHORITIES ...................................................................................... 5
STATEMENT OF THE CASE .................................................................................. 8
ISSUES PRESENTED .............................................................................................10
STATEMENT OF FACTS ......................................................................................12
A. States Evidence at Guilt-Innocence ...........................................................12
B. Defenses Evidence at Guilt-Innocence ......................................................13
C. The Applicants Testimony .........................................................................14
D. Defense Counsels Closing Argument ........................................................16
E. Jury Charge and Deliberations ....................................................................18
SUMMARY OF THE ARGUMENT ......................................................................19
ARGUMENT ...........................................................................................................22
DEFENSE COUNSEL DID NOT RENDER DEFICIENT
PERFORMANCE FOR FAILURE TO REQUEST A MISTAKE OF FACT
JURY INSTRUCTION WHEN THE LAW IS UNSETTLED REGARDING
WHETHER THE INSTRUCTION IS ALWAYS NECESSARY IN ORDER
TO GIVE EFFECT TO THE STATUTORY DEFENSE ..............................23
A. Bruno v. State Creates an Unsettled Legal Environment .........................24
B. Okonkwo v. State Recognizes as Unresolved the Necessity of Requesting
a Mistake of Fact Jury Instruction to Give Effect to the Defense When
the State Must Prove the Mens Rea Beyond a Reasonable Doubt ...........28
C. Defense Counsel Did Not Render Deficient Performance in an Unsettled
Legal Environment ...................................................................................31
4

DEFENSE COUNSELS ASSERTION THAT HIS FAILURE TO
REQUEST A MISTAKE OF FACT INSTRUCTION WAS
INADVERTENT RATHER THAN STRATEGIC DOES NOT
DEMONSTRATE DEFICIENT PERFORMANCE .......................................32
A. Defense Counsels Affidavit is Unpersuasive .........................................33
B. Defense Counsels Affidavit is Insufficient to Support the Habeas
Courts Deficient Performance Finding ...................................................36
THE APPLICANT FAILS TO DEMONSTRATE STRI CKLAND
PREJUDICE BECAUSE THE JURY CONSIDERED HER MISTAKES OF
FACT ...................................................................................................................41
THE JURY CHARGE DID NOT EFFECTIVELY PREVENT THE
APPLICANT FROM PRESENTING A MISTAKE OF FACT DEFENSE 45
PRAYER ..................................................................................................................49
CERTIFICATE OF SERVICE AND COMPLIANCE ...........................................51



5


INDEX OF AUTHORITIES

CASES

Barajas v. State, No. 05-93-00042-CR, 1995 WL 519352, at *3 (Tex. App.
Dallas Aug. 28, 1995, no. pet.) (mem. op., not designated for publication) ........23
Barbar v. State, 167 Tex. Crim. 48 (1958) ..............................................................20
Bruno v. State, 845 S.W.2d 910 (Tex. Crim. App. 1993) (plurality opinion) . passim
Cooks v. State, 5 S.W.3d 292 (Tex. App. Houston [14th Dist] 1999, no pet.) .....38
Estrada v. State, 313 S.W.3d 274 (Tex. Crim. App. 2010) .....................................36
Ex parte Levine, No. WR-79302-01, 2014 WL 792080 (Tex. Crim. App. Feb. 26,
2014) (order, not designated for publication) ...................................................5, 17
Ex parte Reed, 271 S.W.3d 698 (Tex. Crim. App. 2008) ........................................31
Ex parte Smith, 296 S.W.3d 78 (Tex. Crim. App. 2009).........................................27
Ex parte Weinstein, 421 S.W.3d 656 (Tex. Crim. App. 2014) ................................31
Ex parte Welch, 981 S.W.2d 183 (Tex. Crim. App. 1998) ......................................27
Gardner v. State, 780 S.W.2d 259 (Tex. Crim. App. 1989) ....................................21
Grant v. State, No. 09-94-181-CR, 1998 WL 809413 (Tex. App.- Beaumont Nov.
18, 1998) ...............................................................................................................23
Griffith v. State, 315 S.W.3d 648 (Tex. App. Eastland 2010, pet. refd) .............38
Guerrero v. State, No. 01-11-00091-CR, 2012 WL 1564670 (Tex. App. Houston
[1st Dist.] May 3, 2012, no pet.) (mem. op., not designated for publication) ......23
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ......................................31
Hopson v. State, No. 14-08-00735-CR, 2009 WL 1124389 (Tex. App. Houston
[14
th
Dist.] Apr. 28, 2009, no. pet.) (mem. op., not designated for publication) .23
6

Levine v. State, No. 07-00-0155-CR, 2001 WL 43052 (Tex. App. Amarillo, Jan.
16, 2001, no pet.) (mem. op., not designated for publication) ............................... 4
Louis v. State, 393 S.W.3d 246 (Tex. Crim. App. 2012) ............................ 16, 40, 41
Mays v. State, 318 S.W.3d 368 (Tex. Crim. App. 2010) .........................................35
Okonkwo v. State, 357 S.W.3d 815 (Tex. App. Houston [14
th
Dist.] 2011, pet.
granted) .......................................................................................................... 26, 32
Okonkwo v. State, 398 S.W.3d 689 (Tex. Crim. App. 2013) .......................... passim
Posey v. State, 966 S.W.2d 57 (Tex. Crim. App. 1998) ..........................................42
Reyes v. State, No. 10-12-00205-CR, -- S.W.3d --, 2013 WL 5872738 (Tex. App.
Waco Oct. 31, 2013, pet. refd) ............................................................................38
Sands v. State, 64 S.W.3d 488 (Tex. App. Texarkana 2001, no pet.) ..... 22, 23, 51
Strickland v. Washington, 466 U.S. 668 (1984) .............................................. passim
Thompson v. State, 236 S.W.3d 787 (Tex. Crim. App. 2007) .................................40
Thompson v. State, 93 S.W.3d 16 (Tex. Crim. App. 2001) .....................................22
Traylor v. State, 43 S.W.3d 725 (Tex. App. Beaumont 2001, no. pet.) ........ 22, 23
Turner v. State, No. 04-03-00436-CR, 2004 WL 1881748 (Tex. App. San
Antonio Aug. 25, 2004, no pet.) (mem. op., not designated for publication) ......23
Vasquez v. State, 830 S.W.2d 948 (Tex. Crim. App. 1992) (per curiam) ...............35
Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000)....................................22

STATUTES

TEX. CODE CRIM. PROC. art. 36.14..........................................................................42
TEX. PENAL CODE 8.02 ............................................................................ 17, 32, 43
TEX. PENAL CODE 19.02(b)(1),(2) ......................................................................... 4
TEX. PENAL CODE 19.04 ......................................................................................... 4
7


OTHER AUTHORITIES

Applicants Brief in Support of Writ ........................................................................19
Applicants Writ ................................................................................................ 17, 24
Applicants Writ Exhibit No. 2, Affidavit of Don Catlett .................................. 28, 29
Finding of Fact No. 7 ...............................................................................................28
Finding of Fact No. 14 .............................................................................................19
Finding of Fact No. 26 .............................................................................................36
States Original Answer .................................................................................... 17, 31
States Trial Exhibit 28A ............................................................................................ 7

TREATISES

43 George E. Dix & John M. Schmolesky, Texas Practice: Criminal Practice and
Procedure 43.36 (2013) .....................................................................................33


8

TO THE HONORABLE COURT OF CRIMINAL APPEALS:
STATEMENT OF THE CASE

The applicant was charged by indictment for first-degree felony murder.
TEX. PENAL CODE 19.02(b)(1),(2). A jury found the applicant guilty of second-
degree felony manslaughter. TEX. PENAL CODE 19.04. The trial court imposed a
twenty year sentence in the Texas Department of Criminal Justice Correctional
Institutions Division.
The applicant filed a direct appeal contesting the trial courts order to
cumulate her manslaughter conviction with a separate conviction for attempted
murder, and the trial courts denial of a mistrial motion after the State improperly
impeached a defense witness. The Seventh Court of Appeals affirmed the
applicants conviction. Levine v. State, No. 07-00-0155-CR, 2001 WL 43052
(Tex. App. Amarillo, Jan. 16, 2001, no pet.) (mem. op., not designated for
publication).
The applicant filed this original application for writ of habeas corpus on
May 17, 2012. On February 28, 2013, the Hon. Mark Kent Ellis, 351
ST
District
Court, adopted Applicants Revised Proposed Findings of Fact and Conclusions of
Law and recommended to the Court of Criminal Appeals that habeas corpus relief
be granted.
9

On February 26, 2014, the Court of Criminal Appeals entered an order for
the parties to brief whether Okonkwo v. State, 398 S.W.3d 689 (Tex. Crim. App.
2013), affects analysis of the instant applications merits. Ex parte Levine, No.
WR-79302-01, 2014 WL 792080 (Tex. Crim. App. Feb. 26, 2014) (order, not
designated for publication).

10

ISSUES PRESENTED
(1) Mistake of fact is a statutory defense that negates the mens rea. In
Okonkwo, the Court of Criminal Appeals acknowledged that the law is unsettled
regarding whether a defense counsel must always request a mistake of fact jury
instruction in order give effect to the defense. Okonkwo, 398 S.W.3d at 695-96.
Did defense counsel render ineffective assistance for failure to request a mistake of
fact jury instruction when the law is unsettled?
(2) Defense counsels affidavit represents that his failure to request a
mistake of fact jury instruction was inadvertent rather than strategic. In
Okonkwo the Court of Criminal Appeals considered a similar affidavit and
concluded that defense counsels failure to request a mistake of fact jury
instruction was constitutionally reasonable. Id. at 696-97. Pursuant to Okonkwo,
is defense counsels affidavit determinative of deficient performance?
(3) In Okonkwo the concurrence determined that the appellant did not
demonstrate prejudice caused by defense counsels failure to request a mistake of
fact jury instruction: The jury obviously rejected appellants claim of an honest or
good-faith mistake by finding him guilty. If the jury rejected that claim, then it
inexorably follows that it would have rejected . . . that appellant made an honest
mistake and that his mistake was a reasonable one. Okonkwo, 398 S.W.3d at 702
(Cochran, J., concurring) (emphasis in original). Pursuant to the Okonkwo
11

concurrence, was the applicant prejudiced by defense counsels failure to request a
mistake of fact instruction when the jury considered and rejected her mistake of
fact claim by finding her guilty of manslaughter?
(4) In Okonkwo the Court of Criminal Appeals did not address the States
argument that defense counsel was not ineffective because the State was required
to prove the mens rea beyond a reasonable doubt and a mistake of fact instruction
was subsumed by the charge and merely negated an element the State was
required to prove. Okonkwo, 398 S.W.3d at 695. The jury charge in the instant
application directed the jurors to consider all the evidence, instructed that the
State must prove the mens rea beyond a reasonable doubt, and required the
applicant be acquitted if the State failed to meet its burden of proof. Was the
applicant effectively prevented from presenting a mistake of fact defense by the
absence of a mistake of fact instruction in the jury charge?

12

STATEMENT OF FACTS

A. States Evidence at Guilt-Innocence


The applicant was indicted and tried for the murder of complainant Bill
Robins (Robins) by striking the complainant with a deadly weapon, namely an
automobile (C.R. at 2). The State introduced a redacted copy of the applicants
written statement in which she acknowledged killing Robins by pinning him
against a brick wall with the hood of her car:
While at the dead end of the drive way, I stopped the car
and Billy got out. He was by the drivers side door and
he continued to yell at me. I thought he was going to go
home at this point. But he went to the front of the car
and he sort of leaned over the front of the car and this is
when he threw the glass at my car. The glass hit my
windshield. I guess it deflected off my windshield.
When Billy threw the glass, the car went forward and I
acidently [sic] pinned Billy against a brick wall. I backed
up right a way [sic] and I looked and I couldnt believe
that I had actually hit him with the car, when I had meant
to back out and away from him.
States Trial Exhibit 28A at 3-4 (bloc text removed).
To counter the applicants assertion of an accident, the State introduced
evidence of acceleration marks measuring 7 and 9 (IV R.R. at 32). These marks
were left in a straight line and reflected that the applicants car hit the wall at an
angle without any indication that she attempted to turn her wheel away from
Robins who was near a wall when he was struck (VI R.R. at 82) (VII R.R. at 165).
13

According to the States expert who testified at trial, in order to leave acceleration
marks of this length the applicants car had to be accelerated to approximately
3,700 RPMs while in neutral and then shifted into drive (VI R.R. at 131-37). The
States expert also testified that it would have been impossible to accelerate to
3,700 RPMs and shift the car from park into reverse due to the brake limiter (VI
R.R. at 134).
B. Defenses Evidence at Guilt-Innocence

Defense counsel presented witnesses to depict a version of events in which
the applicant was being physically abused by Robins and accidentally struck him
with her car in a desperate attempt to escape his violence. Kevin Donaldson
testified that the calendar year before the applicant killed Robins he witnessed
Robins strike the applicant with his hand during a drunken rage (VII R.R. at 73-
76). Frank Reohas testified that, on the evening the applicant killed Robins, he
witnessed them arguing about a job offer the applicant received that evening from
a man she met at a bar (VII R.R. at 97). Houston Police Department officer
Melissa Holbrook testified that hours after killing Robins the applicant pointed to
several discreet places on her body where she allegedly suffered injuries after
being struck by Robins (VII R.R. at 112). Randall Dodd (Dodd), an expert in
accident reconstruction, testified regarding his opinion that Robins death was an
accident stating that he believed the applicant took her foot off the accelerator prior
14

to striking the complainant and therefore lacked the intent to kill (VII R.R. at 170).
In rendering this opinion, Dodd acknowledged the following: the applicants car
was probably accelerated to 3,700 RPMs (VII R.R. at 168); he did not disagree
with the States expert that the car physically could not be shifted from park into
reverse at 3,700 RPMs (VII R.R. at 168); and, the applicant drove at an angle that
might have caused her to hit a building had she been in reverse (VII R.R. at 210).
C. The Applicants Testimony

The applicant testified at guilt-innocence against the advice of counsel (VIII
R.R. at 4). On direct examination, the applicant characterized Robins as very
angry because she had been talking about a job with a man at the bar they had
visited (VIII R.R. at 22). The applicant begg[ed] him to stop hitting me while in
the car and indicated that the physical abuse was so bad that she was concerned
that Robins would cause a car accident (VIII R.R. at 24-25). When Robins got out
of the applicants car in an alley he was very, very upset and threw a glass at the
applicants windshield (VIII R.R. at 27-28). Contrary to her written statement, the
applicant testified that she intended to accelerate her car forward, not backward:



15

Q: (By Mr. Catlett) When he threw the glass at your
automobile whats the next action that you took?

A: I turned my head at which point I thought I saw his
blurred figure in flight towards the car door.

Q: Why when you saw when you saw this impression
what action did you take?

A: At that point he was I perceived that he was seconds
away from grabbing the car door handle or coming
around in front of the car open car door so I looked at
him what I thought was him and I thought I have just I
accelerated the car to make the car door slam so I could
lock the doors.

Q: Accelerated the car after he threw the glass at your
windshield. Why did you do that?

A: I accelerated the car to make the car door slam.

Q: Why did you want it to slam?

A: So I could lock the doors? So I could prevent him
from attacking me some more.

Q: That resulted in your hitting the wall?

A: Yes. Evidently, yes. Yes.

Q: What did you do after your car hit the door?

A: I backed up the car and I backed up the car a ways
see. After I got the car door slammed then I was going to
back up after the parking lot after he was clear of the car
and the doors were locked then I intended to back up - -

16

(VIII R.R. at 30-31). The applicant testified that, when she realized she struck
Robins with the car, I couldnt believe [it] and told him that it was an accident
and not intentional (VIII R.R. at 32).
On cross examination the applicant acknowledged that she put the car [i]n
drive on purpose in order to slam the door, but did not see Robins in front of the
car (VIII R.R. at 90). The applicant did not dispute testimony that she accelerated
her car to over 3,000 RPMs and testified that she did not expect Robins to use
deadly force against her if he returned to the car (VIII R.R. at 91-93). The
applicant maintained that she acted in self-defense: If he had come back in the car
he would have hurt me very, very badly. He had done it before (VIII R.R. at 92).
D. Defense Counsels Closing Argument

Defense counsel stressed that the incident was an accident and that the
applicant lacked the requisite mens rea to be found guilty beyond a reasonable
doubt of any offense (VIII R.R. at 133, 157). In particular he asked the jury to
focus on defense expert Dodds opinion that the applicant took her foot off the
accelerator:
But she took her foot off the gas. We know that by the
physical evidence. And thats the most important piece
of physical evidence in this case. Because it tells you
you dont have time to think in .43 seconds. She cant sit
there and plot out Im going to kill this guy, Im going to
run him into the wall but Im going to make it look like I
didnt mean it so Im going to take my foot off the gas.
17

.43 seconds, her response to that car going towards the
wall was to take her foot off the gas. That tells you
conclusively she didnt want to go in that direction. That
was not her intent.

(VIII R.R. at 150).
Counsel continued with this argument, stating that because of the stressful
situation the applicant accidentally put her car in neutral rather than park when
she stopped in the alley and then compounded the problem by shifting the car one
click down to drive when she thought she was placing the car in reverse (VIII
R.R. at 151). Drawing on Robins violent nature, defense counsel also made clear
that the accident involved self-defense:
But I think the evidence here shows and this whole
thing about was she being assaulted or not and all that, I
mean this man was thrown out of her house twice; once
off a balcony because he was over there screaming and
cursing.

. . .

Now, was she trying to keep him in the car or was she
trying to get him out. Just like they had to try and get
him out of that apartment six months earlier. He was
drunk, he had been drinking for hours. . . . Hes arguing
with her, they get in the car hes arguing. Hes harassing
her, shes trying to get him out. And an unfortunate
accident occurred.

(VIII R.R. at 156-57).


18

E. Jury Charge and Deliberations

The jury charge contained instructions for murder, manslaughter, and
criminally negligent homicide and the applicable mens rea for each offense (C.R.
at 122-25). A self-defense instruction was included specific to the murder
allegation (C.R. at 126-27).
Regarding the presumption of innocence and the burden of proof the jury
was instructed as follows:
The prosecution has the burden of proving the
defendant guilty and it must do so by proving each and
every element of the offense charged beyond a
reasonable doubt and if it fails to do so, you must acquit
the defendant.
. . .
In the event you have a reasonable doubt as to the
defendants guilt after considering all the evidence before
you, and these instructions, you will acquit her and by
your verdict say Not Guilty.
(C.R. at 130).
During its deliberations, the jury requested to review certain evidence
including the applicants written statement (C.R. at 136). The jury returned a
verdict of manslaughter (C.R. at 166).



19

SUMMARY OF THE ARGUMENT

Okonkwo v. State, 398 S.W.3d 689 (Tex. Crim. App. 2013), affects analysis
of the instant application in four distinct regards. Each stands for the proposition
that the applicants claim for habeas corpus relief should be denied.
First, the law is unsettled regarding whether a mistake of fact instruction is
always necessary in order to give effect to the statutory defense. At the time of
trial jurisprudence regarding the necessity of requesting a mistake of fact
instruction was guided by Bruno v. State, 845 S.W.2d 910 (Tex. Crim. App. 1993)
(plurality opinion). Bruno is a fractured opinion and appellate courts have
struggled to determine whether it is a plurality opinion lacking in precedent or a
majority opinion holding precedential value. In Okonkwo, this Court determined
that Bruno is a plurality opinion. Okonkwo, 398 S.W.3d at 695 n.5. Underscoring
the unsettled legal landscape, Okonkwo also makes clear that the issue of whether a
mistake of fact instruction can be effectively subsumed in a jury charge absent a
specific instruction is unresolved. Id. at 695-96. Pursuant to Okonkwo, defense
counsel did not render deficient performance for failure to request a mistake of fact
jury instruction when the law is unsettled.
Second, the applicants claim that defense counsel rendered deficient
performance is premised upon an unpersuasive affidavit from defense counsel in
which he claims that his failure to request a mistake of fact jury instruction was
20

inadvertent rather than strategic. In Okonkwo, this Court considered a similar
defense counsel affidavit and concluded that defense counsel did not render
deficient performance when the defendants mistake could have been reasonable or
unreasonable. Id. at 696. This Court concluded that because a mistake of fact
instruction would have limited the jury to only consider a reasonable mistake as
a defense, a mistake of fact instruction would have been problematic because it
would have decreased the States burden of proof. Id. The applicants mistakes in
the instant case could also have been viewed by a juror as unreasonable. Pursuant
to Okonkwo, defense counsel rendered constitutionally reasonable performance
because a mistake of fact jury instruction would have lowered the States burden of
proof and been counterproductive.
Third, the applicant fails to demonstrate prejudice from defense counsels
failure to request a mistake of fact instruction because it is a reasonable deduction
from the record that the jury followed the direction of the charge to consider all
the evidence before you and gave effect to the applicants mistake of fact by
acquitting her of murder. Moreover, the Okonkwo concurrence determined that the
appellant did not demonstrate prejudice resulting from defense counsels failure to
request a mistake of fact instruction when the jury obviously rejected appellants
claim of an honest or good-faith mistake by finding him guilty. Id. at 702
(Cochran, J., concurring). Similarly, the applicant fails to demonstrate prejudice
21

when the jury considered and rejected her mistake of fact defense and found her
guilty of manslaughter.
Fourth, the State advances the following test to determine whether a defense
counsel must request a mistake of fact instruction: does the absence of a mistake of
fact instruction effectively prevent the jury from giving effect to a mistake of fact
defense that, if believed, would negate the mens rea and acquit the defendant?
This test is put forward in order to resolve the question left unresolved by
Okonkwo whether a mistake of fact defense can be subsumed in a jury charge
absent a specific instruction and is based upon this Courts jurisprudence in
Louis v. State, 393 S.W.3d 246, 254 (Tex. Crim. App. 2012). Applying this test to
the instant application it becomes clear that the absence of a mistake of fact jury
instruction did not effectively prevent the applicant from presenting, and the jury
considering, her mistake of fact defense.

22

ARGUMENT

The applicant asserts that defense counsel was ineffective for failing to
request a jury instruction on the statutory defense of mistake of fact as set forth in
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.

(b) Although an actor's mistake of fact may constitute a
defense to the offense charged, he may nevertheless be
convicted of any lesser included offense of which he
would be guilty if the fact were as he believed.

An examination of the record and the law reveals that the applicants claim
is a quintessential Strickland double failure in that the applicant fails to
demonstrate unreasonable performance or prejudice. Strickland v. Washington,
466 U.S. 668, 700 (1984).
1
Accordingly, the applicants claim for relief should be
denied.

1
The Court has asked the parties to address whether Okonkwo v. State, 398 S.W.3d 689
(Tex. Crim. App. 2013), affects the analysis of the applicants claims. Ex parte Levine, No. WR-
79302-01, 2014 WL 792080, at *1 (Tex. Crim. App. Feb. 26 2014) (per curiam) (order, not
designated for publication). The applicant also asserts a claim of ineffective assistance of counsel
for failure to object to a self-defense instruction in the jury charge. Applicants Writ at 7.
Okonkwo is only tangentially related to the applicants self-defense instruction claim insofar as it
concerns the proposition of law that a defense counsels affidavit responsive to an allegation of
ineffective assistance of counsel is subject to an objective review in the context of the entire trial
record. Okonkwo, 398 S.W.3d at 693. As a result, the States brief solely focuses on the
applicants claim of alleged ineffective assistance for failure to request a mistake of fact jury
instruction. The State reasserts that the applicants claim of ineffective assistance for failure to
23

I.
DEFENSE COUNSEL DID NOT RENDER DEFICIENT PERFORMANCE
FOR FAILURE TO REQUEST A MISTAKE OF FACT JURY
INSTRUCTION WHEN THE LAW IS UNSETTLED REGARDING
WHETHER THE INSTRUCTION IS ALWAYS NECESSARY IN ORDER
TO GIVE EFFECT TO THE STATUTORY DEFENSE

The applicants claim that defense counsel was deficient for failing to
request a mistake of fact jury instruction conflates two distinct issues: factual
sufficiency for the instruction with prevailing professional norms to make the
request. See Strickland, 466 U.S. at 688 (The proper measure of attorney
performance remains simply reasonableness under prevailing professional
norms.). Based on her written statement and trial testimony, the applicant avers
that she would have been entitled to a mistake of fact jury instruction. Applicants
Brief in Support of Writ at 11-12. In contrast to Okonkwo, the State acknowledges
that this is correct. Cf. Okonkwo, 398 S.W.3d at 695 (the State contends that
appellant would not have been entitled to a mistake of fact instruction because the
instruction was unnecessary.). However, this does not support the applicants
contention, and the habeas courts conclusion, that defense counsels
representation was deficient because it is necessary to request the instruction in
order to give effect to the defense. Applicants Brief in Support of Writ at 12;
Finding of Fact No. 14. Simply put, the law regarding the necessity of requesting

object to the self-defense instruction is meritless and refers the Court to its Original Answer for
discussion and analysis of that claim. States Original Answer at 18-21.
24

a mistake of fact instruction in all circumstances was unsettled at the time of trial
and remains so today after this Court elected not to resolve the matter in Okonkwo.
A. Bruno v. State Creates an Unsettled Legal Environment

At the time of the applicants trial, jurisprudence regarding the necessity of a
mistake of fact jury instruction was guided by this Courts opinion in Bruno v.
State, 845 S.W.2d 910 (Tex. Crim. App. 1993) (plurality opinion).
2
In Bruno the
defendant was convicted of unauthorized use of a motor vehicle. Id. at 911. His
defense at trial was mistake of fact; he asserted that he thought he had the
complainants permission to use the car. Id. The charge included instructions on
mistake of fact and that the jury could only convict the defendant if they believed
beyond a reasonable doubt that he intentionally and knowingly operated the motor
vehicle without the complainants consent. Id. The issue before this Court was the
appellants contention that the trial court should have additionally instructed the
jury that the State was required to prove, beyond a reasonable doubt, that he knew
he did not have the complainants permission to drive the car. Id.

2
Prior to Bruno, the closest this Court came to exploring the issue appears to be a pre-
Penal Code case Barbar v. State, 167 Tex. Crim. 48 (1958). In Barbar the defendant was
convicted in a court trial of possession of barbiturates. Id. at 49. The defendant testified that she
was in possession of tablets and capsules but did not know that they were barbiturates. Id. at 50.
This Court determined that under the undisputed evidence the defendant brought herself within
the defense of mistake of fact. Id. In dicta, this Court then noted that the defendant presented a
mistake of fact defense without the aid of a jury instruction: We are not unmindful that the trial
herein was before the court and appellant is cast in the position she would have been in had her
defense been submitted to and rejected by a jury. Id. at 51.
25

In this Courts lead opinion in Bruno, Judge White, joined by Judges
McCormick and Campbell, determined that the charge properly placed the burden
of proof on the State. Id. at 912. However, this opinion also concluded that such
analysis misses the real question presented by this case, which is whether the
mistake of fact instruction needed to be given in the first place. Id. The mistake
of fact instruction was unnecessary since [o]nly one of the incompatible stories
could be believed. Id. at 913. The Court explained, The jury heard both stories.
As they would have necessarily been required to disbelieve appellants story before
they could find sufficient evidence to convict, the instruction need not be given in
the instant case. Id.
In a two-sentence opinion, Judge Baird, joined by Judges Miller and Meyers,
concurred believing the mistake of fact instructions was unnecessary in the instant
case. Id. (Baird, J., concurring).
3
However, Judge Baird differed from the lead
opinion in its interpretation of Gardner v. State, 780 S.W.2d 259, 262-63 (Tex.
Crim. App. 1989), an unauthorized use of a motor vehicle case concerning a
mistake of fact defense and jury instruction in which the defendant alleged he had
consent to use the automobile from a third party who he believed had the

3
BAIRD, J. concurs, believing the mistake of fact instructions was unnecessary in the
instant case. However, I do not believe the defense of mistake of fact should be limited to third
party cases.
26

permission of the actual owner to use the car. Bruno, 845 S.W.2d at 913. Judges
Clinton, Overstreet, and Maloney concurred in the result. Id.
Simply put, Bruno has bred confusion among appellate courts with Judge
Bairds concurring opinion exacerbating the problem. The first sentence of Judge
Bairds concurrence could be interpreted to indicate that six members of this Court
agreed that a mistake of fact instruction is unnecessary when only one of two
incompatible stories could be believed, making the opinion binding for that point
of law. See Sands v. State, 64 S.W.3d 488, 497 (Tex. App. Texarkana 2001, no
pet.) (Cornelius, C.J., concurring) (Bruno has precedential value because six judges
held that it was not necessary to give a mistake of fact instruction in that case); see
also Thompson v. State, 93 S.W.3d 16, 26 (Tex. Crim. App. 2001) (examining the
plurality opinion in Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000)
(plurality opinion), and concluding that seven judges in Wesbrook embraced a
particular point of law and therefore Wesbrook was authority for that point of law).
In Brunos confusing wake, Judge Walker of the Ninth Court of Appeals indicated
the present state of the law regarding the propriety of submitting the defensive
issue of mistake of fact is entirely unclear to me. Traylor v. State, 43 S.W.3d
725, 731 (Tex. App. Beaumont 2001, no. pet.) (Walker, J. concurring).
4
Indeed,

4
To underscore this point Judge Walker attached as an exhibit to his concurrence an
unpublished dissenting opinion of this Court authored by Judge Johnson and joined by Judges
Meyers and Price referencing the decision of the majority to reverse the Ninth Court of Appeals
27

the First, Fourth, Fifth, Sixth, Ninth, and Fourteenth districts sharply split on
whether Bruno is a plurality or majority opinion and whether or not the Courts
determination that the mistake of fact instruction was unnecessary is dicta or
controlling.
5



decision Grant v. State, No. 09-94-181-CR, 1998 WL 809413, at *2 (Tex. App.- Beaumont Nov.
18, 1998). Traylor, 43 S.W.3d at 732-34. The Ninth Court of Appeals found that the trial court
erred in denying the appellants request for a mistake of fact jury instruction in an evading arrest
trial, but the Court of Criminal Appeals reversed concluding the instruction was encompassed
in the trial courts jury charge which instructed the jury to convict only if it found beyond a
reasonable doubt that appellant knew the officer in question was a police officer. Id. at 732.
This reasoning is akin to that advanced by the State to support its argument that the applicants
mistake of fact defense was effectively subsumed in the jury charge. See infra at 48-50.
5
Compare Sands, 64 S.W.3d at 497 (Cornelius, C.J., concurring) (Bruno holds
precedential value); Turner v. State, No. 04-03-00436-CR, 2004 WL 1881748, at *7 (Tex.
App. San Antonio Aug. 25, 2004, no pet.) (mem. op., not designated for publication) (citing
Bruno as authority for holding that an attorney was not ineffective for failing to request a mistake
of fact instruction when the jury necessarily had to consider defendants mistake of fact evidence
before being able to find defendant guilty beyond a reasonable doubt); Guerrero v. State, No. 01-
11-00091-CR, 2012 WL 1564670, at *4 (Tex. App. Houston [1st Dist.] May 3, 2012, no pet.)
(mem. op., not designated for publication) (same); Barajas v. State, No. 05-93-00042-CR, 1995
WL 519352, at *3 (Tex. App. Dallas Aug. 28, 1995, no. pet.) (mem. op., not designated for
publication) (same); Traylor, 43 S.W.3d at 730-31 (citing Bruno as precedent to support holding
that trial court did not err in refusing request for mistake of fact jury instruction when the jury
could not have convicted defendant if they believed his story); Hopson v. State, No. 14-08-
00735-CR, 2009 WL 1124389, at *2-4 (Tex. App. Houston [14
th
Dist.] Apr. 28, 2009, no. pet.)
(mem. op., not designated for publication) (citing Bruno as authority for the proposition that the
Texas Court of Appeals indicated that a trial court is not always required to submit an
unnecessary mistake-of-fact instruction if the defense is adequately covered by the charge as
given.), with Sands, 64 S.W.3d at 494 (holding Bruno is a plurality opinion, not binding
precedent, and its language regarding the mistake of fact instruction as unnecessary is dicta);
Okonkwo v. State, 357 S.W.3d 815, 820 (Tex. App. Houston [14
th
Dist.] 2011, pet. granted)
(holding that Bruno was a plurality opinion and the language upon which the State relied is dicta)
revd by Okonkwo, 398 S.W.3d at 696-97.
28

B. Okonkwo v. State Recognizes as Unresolved the Necessity of
Requesting a Mistake of Fact Jury Instruction to Give Effect to
the Defense When the State Must Prove the Mens Rea Beyond a
Reasonable Doubt

In Okonkwo, this Court determined that a defense attorney rendered
constitutionally reasonable performance when he failed to request a mistake of fact
jury instruction in a forgery trial even though it was the defendants only defense.
Okonkwo, 398 S.W.3d at 696-97; see also Okonkwo, 398 S.W.3d at 699-703
(Cochran, J., concurring). To reach this holding this Court examined Brunos
scope and reinforced that the necessity of requesting a mistake of fact jury
instruction in order to give effect to the defense the issue at the core of the
applicants claim
6
is unresolved.
To support its position in Okonkwo that defense counsels performance was
constitutionally reasonable, the State argued that, because an element of its case
required proof that the defendant acted with intent to defraud or harm another, it
necessarily had to prove that he knew the bills were forged, which was the same
fact about which appellant claimed to have been mistaken. Id. at 695. In
language suggestive of Brunos reasoning that [o]nly one of the incompatible
stories could be believed, this Court determined that the State correctly observes

6
Her mistaken beliefs negated that she recklessly caused his death. Had the jury so
believed or had a reasonable doubt, it would have acquitted her or, at most, convicted her of
negligent homicide. Counsel performed deficiently in failing to request an instruction on
mistake of fact. Applicants Writ at 6a.
29

that proof of the culpable mental state necessarily proves lack of mistake regarding
the authenticity of the bills. Id. at 695.
Although acknowledging that the States reasoning was correct, this Court
then specifically chose not to resolve the States second ground for review: Can it
ever be deficient performance not to request a mistake-of-fact instruction when the
offense requires the State to prove knowledge beyond a reasonable doubt?
Okonkwo, 398 S.W.3d at 693.
In other words, the State suggests that, because the
substance of the mistake-of-fact defense was subsumed
by the charge and merely negated an element the State
was required to prove, a mistake-of-fact instruction
would not have been required and served no purpose. By
contrast, appellant contends that, because the mistake-of-
fact instruction is codified, it must be given if it negates a
defendants culpable mental state, is raised by the
evidence, and is requested by a party. This Court has not
yet resolved this dispute, and we need not do so here in
the context of a complaint of ineffective assistance of
counsel because, under either of the scenarios promoted
by the State and appellant, appellant has not shown that
counsel was objectively unreasonable in failing to request
an instruction on mistake of fact.

Id. at 695-96 (emphasis added) (citations and footnotes omitted).
In deciding not to resolve the States second ground for review, this Court
examined Bruno in a footnote observing, A plurality of this Court determined that
a mistake-of-fact instruction was unnecessary because the jury could believe
30

either Bruno or the owner, but not both. Id. at 695 n. 5 citing Bruno, 845 S.W.2d
at 911.
Three points are particularly relevant from this footnote. First, this Court
clarified that Bruno is a plurality opinion. Second, this Court did not indicate that
Brunos reasoning was dicta. Third, this Court did not adopt the Fourteenth Court
of Appeals reasoning that Brunos reach was limited to unauthorized use of motor
vehicle cases. Cf. Okonkwo, 357 S.W.3d at 820 (The Bruno plurality merely held
that an instruction may not be required in a narrow subset of theft cases.).

31

C. Defense Counsel Did Not Render Deficient Performance in an
Unsettled Legal Environment

At a threshold level, the instant application is resolved by the Court of
Criminal Appeals decision in Okonkwo to leave undisturbed the dispute
regarding the necessity of requesting a mistake of fact jury instruction in order to
give effect to the defense. Because Bruno was a plurality opinion, and therefore
not precedent, defense counsel was unquestionably operating in an unsettled legal
environment. Indeed, this Court suggested that it was not certain Okonkwo would
have been entitled to a mistake of fact instruction under the facts of the case.
Okonkwo, 398 S.W.3d at 697 (Even if the law permitted counsel to obtain an
instruction on mistake of fact under these circumstances) (emphasis added).
To establish a claim of ineffective assistance of counsel, the applicant must
show that (1) defense counsels performance was deficient, and (2) she suffered
resulting prejudice, recognized as a reasonable probability that, but for counsels
errors, the result of trial would have been different. Strickland, 466 U.S. at 687-94.
Jurisprudence is well established that an attorney cannot commit deficient
performance when the law upon which a post-conviction claim rests is unsettled.
Ex parte Welch, 981 S.W.2d 183, 184 (Tex. Crim. App. 1998) ([W]e will not find
counsel ineffective where the claimed error is based upon unsettled law.).
32

The applicant invites this Court to overlook precedent and reject the
Supreme Courts direction that the proper measure to evaluate attorney
performance is simply reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688. Given that prevailing professional norms did not exist
at the time of trial, this Court should decline the applicants invitation and reject
her claim for relief. See Ex parte Smith, 296 S.W.3d 78, 81 (Tex. Crim. App.
2009) (counsel rendered constitutionally reasonable performance in advising
defendant to plead guilty to a felon in possession of a weapon charge when the law
was unclear at the time of the plea as to whether or not the defendants open felony
deferred adjudication was considered a conviction); see also Okonkwo, 398 S.W.3d
at 699-700 (Cochran, J., concurring) (defense counsels failure to request a mistake
of fact instruction was constitutionally reasonable when the law regarding the
applicability of with knowledge that the writing was forged as a culpable mental
state element of forgery was unsettled).
II.
DEFENSE COUNSELS ASSERTION THAT HIS FAILURE TO REQUEST
A MISTAKE OF FACT INSTRUCTION WAS INADVERTENT RATHER
THAN STRATEGIC DOES NOT DEMONSTRATE DEFICIENT
PERFORMANCE


The applicants claim of deficient performance is premised on the statement
in defense counsels affidavit that his failure to request a mistake of fact instruction
33

was inadvertent rather than strategic. Applicants Writ Exhibit No. 2, Affidavit of
Don Catlett. The habeas court determined defense counsels affidavit to be
credible and concluded that his failure to request an instruction on mistake of fact
was not strategic. Finding of Fact No. 7, 15. However, these findings are not
supported by the record, and this Court should exercise its authority to make
contrary findings and conclusions. Through the lens of Okonkwo it is clear that the
habeas court placed too much emphasis on defense counsels subjective critique of
his performance rather than conducting a more probing inquiry of the record.
A. Defense Counsels Affidavit is Unpersuasive

Drafted more than twelve years after trial, and absent reference that he
reviewed his file or the appellate record, defense counsels affidavit is riddled with
significant inaccuracies likely attributable to faded memories caused by the passage
of time. These errors render his affidavit unpersuasive and insufficient to support
the habeas courts deficient performance finding.
With regard to mistake of fact, defense counsel states the following
regarding his representation:
The indictment alleged that Levine intentionally
and knowingly caused the death of Bill Robins by
striking him with a motor vehicle. She told the police
and testified at trial that she thought she was shifting
from park into reverse when, in fact, she was shifting
34

from neutral into drive; that she drove forward instead of
backward; and that she did not intend to hit Robins.
. . . I argued that Robins died as a result of an
accident that occurred when Levine shifted from neutral
into drive in the belief that she was shifting from park
into reverse.
I never considered raising the defense of mistake
of fact contained in section 8.02(a) of the Penal Code. If
I had, I would have requested an instruction on this
statutory defense. Had the court given the instruction, I
would have argued that the jury should acquit Levine
because she reasonably believed that her car was in
reverse when she accelerated. Had the court refused the
instruction, I would have objected in order to preserve
the issue for appellate review. My failure to request an
instruction on mistake of fact was inadvertent rather than
strategic.
Applicants Writ Exhibit No. 2 (emphasis added).
Okonkwo requires that defense counsels affidavit be reviewed from an
objective standard in the context of the entire trial record. Okonkwo, 398 S.W.3d
at 693-94. Three glaring inaccuracies are immediately apparent from this objective
review.
First, the applicant did not testify at trial that she thought she was shifting
from park into reverse. Indeed, her testimony was profoundly different. Perhaps
in response to the States evidence that it would have been impossible for her to
accelerate her car to 3,700 RPMs and then shift into reverse, the applicant changed
her story and testified that she intentionally accelerated forward to make the car
doors slam shut (VI R.R. at 134) (VII R.R. at 30-31).
35

Second, defense counsels affidavit assertion he never considered the
defense of mistake of fact contained in section 8.02(a) of the Penal Code is not
supported by the record. The record reflects that defense counsel presented a
mistake of fact defense, characterized as an accident, through Dodds expert
opinion that the applicant took her foot off the accelerator. In closing argument,
defense counsel characterized Dodds testimony as the most important piece of
physical evidence in the case and made a plea for the jury to consider Dodds
opinion as it related to the mens rea: That tells you conclusively she didnt want
to go in that direction. That was not her intent. (VIII R.R. at 150-51).
Third, defense counsels affidavit contention that Had the court given the
[mistake of fact] instruction I would have argued that the jury should acquit Levine
because she reasonably believed that her car was in reverse when she accelerated
inaccurately suggests that his argument was contingent on the instruction. In fact,
absent a mistake of fact instruction, defense counsel made this very argument:
because of the stressful situation the applicant accidentally put her car in neutral
rather than park and then compounded the problem by shifting the car one click
down to drive when she thought she was placing the car in reverse (VIII R.R. at
151)
This Court will generally defer to the trial courts findings of fact that are
supported by the record. Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App.
36

2008). This same level of deference is also afforded a habeas judges ruling on a
mixed question of law and fact, if the resolution of those questions turns on an
evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997). However, this Court will afford no deference to findings and
conclusions that are not supported by the record. Ex parte Reed, 271 S.W.3d at
727. Simply put, the habeas courts findings merit no deference.
The multiple errors in defense counsels affidavit are not minor.
7
To the
contrary, in the space of a little more than one double-spaced page, defense counsel
inaccurately depicts the applicants testimony as well as his own trial strategy and
jury argument. Accordingly, this Court should exercise its authority to make a
contrary finding regarding the persuasiveness of defense counsels affidavit and
find that the applicant has not demonstrated deficient performance. See Ex parte
Weinstein, 421 S.W.3d 656 (Tex. Crim. App. 2014) (holding the habeas courts
materiality determination was unsupported by the record and entering a contrary
finding).
B. Defense Counsels Affidavit is Insufficient to Support the Habeas
Courts Deficient Performance Finding

In Okonkwo this Court considered a defense counsels affidavit that was
strikingly similar to that filed in support of the instant application and concluded

7
Defense counsels affidavit also inaccurately states the record regarding his self-defense
strategy. See States Original Answer at 18-20.
37

the affidavit was not determinative of deficient performance. Adopting this same
approach, the State respectfully submits that this Court should reach a similar
conclusion in deciding the merits of the instant application.
Okonkwos defense attorney indicated in an affidavit that his failure to
request a mistake of fact jury instruction was inadvertent rather than strategic:
At the close of the evidence in this matter, I did not
request that the trial court instruct jurors on the statutory
defense of mistake of fact as set out in Section 8.02(a) of
the Texas Penal Code. My failure to do so was not the
result of trial strategy or tactic. At the time for
formulating the jury charge, it did not occur to me to
request a charge on the statutory defense of mistake of
fact, even though the evidence adduced at trial was
clearly more than a scintilla of evidence tending to raise
the statutory defense of mistake of fact.
Okonkwo, 357 S.W.3d at 818, revd, 398 S.W.3d 689.
Notwithstanding the affidavit, this Court held that defense counsels
inadvertence was not objectively unreasonable. Okonkwo, 398 S.W.3d at 696. At
the heart of the Courts conclusion was a determination that the instruction might
actually have harmed the appellant because under the statutory defense of mistake
of fact the mistake must be reasonable. Id., citing TEX. PENAL CODE 8.02 (It
is a defense to prosecution that the actor through mistake formed a reasonable
belief about a matter of fact). The evidence at trial suggested that the mistake of
fact could have been reasonable or unreasonable. Id. Therefore, a mistake of fact
jury instruction would have been problematic for appellant because the instruction
38

would have decreased the States burden of proof by permitting the jury to convict
him if it concluded that his mistake was unreasonable, even if it found that mistake
to be honest. Id.; see also Okonkwo, 398 S.W.3d at 702 (Cochran, J., concurring)
(Appellants attorney urged the easier defense an honest mistake rather than
the more onerous one an honest and reasonable mistake) (emphasis in original).
Professors Dix and Schmolesky echo this Courts Okonkwo holding to note that
there is reason to hesitate before making a request for a mistake of fact
instruction as it lowers the proof required for conviction; for this reason they
characterize the decision to request the jury instruction as dubious. 43 George
E. Dix & John M. Schmolesky, Texas Practice: Criminal Practice and Procedure
43.36 (2013).
In the instant application, the habeas court concluded that defense counsels
incantation of no strategy satisfied Stricklands deficient performance prong;
Okonkwo necessitates a different determination. As in Okonkwo, by not requesting
a mistake of fact jury instruction, defense counsel permitted the jury to consider
the applicants mistakes as either reasonable or unreasonable. Indeed, the mistakes
could be interpreted in either light.
The evidence defense counsel presented at trial suggested that the applicant
committed a mistake that a juror may have found reasonable: accelerating her car
to 3,700 RPMs and accidentally shifting from neutral into drive when she thought
39

she was shifting from park into drive. However, a juror may also have found this
mistake to be unreasonable in light of evidence that it was impossible to accelerate
the car to over 3,000 RPMs and shift into reverse due to the brake limiter.
Testifying against defense counsels advice, the applicant offered a different
mistake that a juror may have found reasonable: she thought that Robins was
beside the car, not in front. Again, a juror may also have found this mistake to be
unreasonable in light of evidence that Robins was actually near a wall when he was
struck. Importantly, defense counsel made no characterization as to whether the
applicants mistake was reasonable or unreasonable thereby allowing the jury to
consider either possibility (VIII R.R. 149-58).
In short, defense counsels affidavit does not establish deficient performance
because the absence of a mistake of fact instruction actually benefitted the
applicant. Had the instruction been requested and given it would have limited the
jury to consider only reasonable mistakes made by an ordinary prudent person
under the same circumstances. Okonkwo, 398 S.W.3d at 702 (Cochran, J.,
concurring) citing Mays v. State, 318 S.W.3d 368, 383 (Tex. Crim. App. 2010).
Given the unreasonableness of the applicants mistakes this may have caused the
jury to convict based on a lessened burden of proof. Under these circumstances,
defense counsel did not render constitutionally deficient performance and the
applicants claim for relief should be denied. Okonkwo, 398 S.W.3d at 686; but cf.
40

Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992) (per curiam)
(defense attorney rendered ineffective assistance for failure to request a necessity
instruction when the defendant had nothing to lose by requesting a defensive
instruction) (emphasis added).

41

III.
THE APPLICANT FAILS TO DEMONSTRATE STRI CKLAND
PREJUDICE BECAUSE THE JURY CONSIDERED HER MISTAKES OF
FACT

The record suggests that the jury considered the applicants mistake of fact
defense, and did so to her benefit. Jurors were directed to consider all the
evidence, instructed that the State must prove the mens rea beyond a reasonable
doubt, and required to acquit the applicant if the State failed to meet its burden of
proof (C.R. at 122-25). Importantly, the jury specifically requested to see the
applicants statement in which she indicated that her intent was to back out and
away from Robins (C.R. at 136). The jury acquitted the applicant of murder and
convicted her of manslaughter (C.R. at 166).
Notwithstanding the clear language in the charge and the jurys request to
review the applicants statement detailing her mistake, the habeas court concluded:
a properly instructed jury . . . probably would have
concluded that she did not recklessly cause his death and
either acquitted her or convicted her of negligent
homicide. Thus, had the jury been instructed on the
defense of mistake of fact, there is a reasonable
probability that the outcome of the trial would have been
different.

Finding of Fact No. 26. This finding is bereft of citation to legal authority or
support from the record. Indeed, the finding is utter speculation. Cf. Estrada v.
State, 313 S.W.3d 274, 285-88 (Tex. Crim. App. 2010) (defendant demonstrated
42

false evidence prejudice from a jury note inquiring about testimony ultimately
found to be false). By contrast, applying the reasoning of the Bruno plurality and
the Okonkwo concurrence to the record of the case, it is clear that the applicant did
not suffer Strickland prejudice.
In Okonkwo the concurrence determined that the appellant did not satisfy
Stricklands prejudice prong. Okonkwo, 398 S.W.3d at 702 (Cochran, J.,
concurring). In reaching this determination, it appears that Brunos [o]nly one of
the incompatible stories could be believed reasoning served as a point of
reference:
The jury obviously rejected appellants claim of an
honest or good-faith mistake by finding him guilty. If the
jury rejected that claim, then it inexorably follows that it
would have rejected the two-pronged claim that appellant
made an honest mistake and that his mistake was a
reasonable one that an ordinary prudent person in his
position would have likely made.

Okonkwo, 398 S.W.3d at 702 (Cochran, J., concurring).
As in Bruno and Okonkwo, the jurors in the instant case were presented two
incompatible stories regarding the applicants intent. A reasonable deduction from
the record is the possibility that the jury considered and believed that the applicant
did not intend to accelerate forward and, in keeping with the jury charge, acquitted
the applicant of murder because the State failed to prove the mens rea beyond a
reasonable doubt. However, considering the same mistake, the jury rejected the
43

applicants claim that she was not reckless in light of her acknowledgement that
she accelerated to over 3,000 RPMs and evidence that Robins was near a wall
when he was struck. Indeed, Texas case law is replete with examples of juries
coming to similar conclusions. See, e.g., Griffith v. State, 315 S.W.3d 648, 652
(Tex. App. Eastland 2010, pet. refd) (evidence sufficient to support
manslaughter conviction when defendant struck complainant with a van and there
was ample evidence the defendant should have been aware of the complainants
location); Cooks v. State, 5 S.W.3d 292, 295-97 (Tex. App. Houston [14th Dist]
1999, no pet.) (evidence sufficient to support manslaughter conviction when
defendant struck complainant while driving twice the posted speed limit).
The inability of the applicant to demonstrate prejudice is further underscored
by this Courts decision to refuse discretionary review in the post-Okonkwo case
Reyes v. State, No. 10-12-00205-CR, S.W.3d , 2013 WL 5872738, at *7-9
(Tex. App. Waco Oct. 31, 2013, pet. refd). In Reyes, the defendant was
convicted of burglary of a habitation. Id. at *1. His defense was mistake of fact;
he acknowledged pawning property for his former girlfriend but alleged that he did
not know the property was stolen. Id. at *9. The trial court denied the defendants
request for a mistake of fact jury instruction and the Waco court of appeals
determined that this was error. Id. at *7-8. However, the appellate court cited to
Bruno as precedent that the defendant did not suffer some harm from the error:
44

Thus, a mistake-of-fact instruction was not essential because the fact finder would
necessarily have had to reject Reyess defense to convict Reyes of the elements of
the crime as a principal. Id. at *8-9, citing Bruno, 845 S.W.2d at 913 (plurality
opinion). In short, if Reyes did not suffer some harm because the jury would
necessarily have had to reject his defense to find him guilty, it logically follows
that the applicant in the instant case does not demonstrate prejudice because the
jury necessarily rejected her mistake in order to find that she acted recklessly and
committed manslaughter.
Simply put, the habeas courts conclusion that the applicant satisfies
Stricklands prejudice prong is unsupported by the record and not worthy of
confidence. Accordingly, the State respectfully requests that this Court exercise its
authority to make alternative findings and, consistent with Bruno, Okonkwo, and
Reyes, reject the applicants claim for relief.

45

IV.
THE JURY CHARGE DID NOT EFFECTIVELY PREVENT THE
APPLICANT FROM PRESENTING A MISTAKE OF FACT DEFENSE

In Okonkwo, this Court considered, but did not render an opinion, regarding
the States argument that a mistake of fact defense can effectively be subsumed in
a jury charge absent specific language on the statutory defense. Okonkwo, 398
S.W.3d at 695-96. The State advances this same argument, as well as a suggested
test, to demonstrate that the applicant fails to satisfy both Strickland prongs.
This Court has examined the contours of whether or not a mistake of fact
instruction is required in order for a jury to give effect to the statutory defense in
two cases involving the interrelationship between transferred intent and mistake of
fact: Thompson v. State, 236 S.W.3d 787 (Tex. Crim. App. 2007), and Louis v.
State, 393 S.W.3d 246 (Tex. Crim. App. 2012). Examining the Penal Code of
1948, the Model Penal Code, and the current Penal code, Thompson concluded that
The history of these two provisions reveals that the law of transferred intent with
respect to offenses has been entwined with the law of mistake. . . . these two
aspects of the law go hand-in-hand.
8
Thompson, 236 S.W.3d at 799. Mistake of
fact mitigates greatly the concern that a person could be penalized far beyond his

8
Okonkwo also recognized the close relationship between these two provisions of the
Penal Code and suggested that a defense attorney may per se render deficient representation if he
does not request a mistake of fact jury instruction to negate a transferred intent element.
Okonkwo, 398 S.W.3d at 697 n. 9, citing Thompson, 236 S.W.3d at 799-800.
46

actual culpability. Id. at 790. Because of this interrelationship, Louis held a
defendant suffered some harm from the trial courts failure to charge the jury on
mistake of fact: Lack of the requested instruction effectively prevented appellant
from presenting his defense and is not harmless. Louis, 393 S.W.3d at 254
(emphasis added).
Through the lens of Louis effectively prevented reasoning, the State
suggests that this Court adopt the following test to determine whether a defense
counsel must request a mistake of fact instruction: does the absence of a mistake of
fact instruction effectively prevent the jury from giving effect to a mistake of fact
defense that, if believed, would negate the mens rea and acquit the defendant?
Applying that test to the instant application, it becomes apparent that it was
unnecessary for defense counsel to request a mistake of fact instruction for three
distinct reasons.
First, mistake of fact was subsumed by the standard jury charge. Jurors were
directed to consider all the evidence, instructed that the State must prove the
mens rea beyond a reasonable doubt, and required to acquit the applicant if the
State failed to meet its burden of proof (C.R. at 122-25). Absent the instruction,
the charge permitted the jury to negate the mens rea if it determined that the
applicant had a mistaken belief of fact regarding the gear the car was in or where
Robins was standing.
47

Judge Womacks concurring opinion in Posey v. State, 966 S.W.2d 57, 70-
71 (Tex. Crim. App. 1998) (Womack, J., concurring), supports this position.
Posey concerned whether TEX. CODE CRIM. PROC. art. 36.14 imposes a duty on
trial courts to sua sponte instruct the jury on unrequested defensive issues. Id. at
62. The majority of this Court determined that the trial court did not err in
omitting mistake of fact from the jury charge when the appellant did not request
the instruction and did not object to its absence. Id. at 59-64. Judge Womack
concluded that the trial court should have submitted an instruction on mistake of
fact but that its omission from the jury charge was harmless:
In this case the jury could give effect to the defense of
mistake of fact. The charge permitted, and even
required, the jury to find the appellant not guilty if there
was a reasonable doubt about the culpable mental state
his knowledge that he did not have consent to drive the
vehicle. The charge fully defined knowingly, and the
application paragraph required the jury to find that the
appellant acted knowingly. (The adequacy of the charge
may explain why the appellant did not request a separate
defensive issue of mistake of fact.) The appellant had no
difficulty in presenting his defense under the charge that
was submitted, by arguing to the jury that his evidence
showed he did not know the vehicle was stolen. The
State met his argument directly. The defensive issue was
squarely presented to the jury by the charge.
Id. at 70-71.
9


9
See also Sands, 64 S.W.3d at 496 (trial courts error in failing to instruct on mistake of
fact was not harmful to the defendant when the State had to prove the mens rea beyond a
reasonable doubt and therefore the jury came face-to-face with making a decision of whether
[the defendant] intentionally and knowingly possessed methamphetamine.).
48

Second, because the State did not allege transferred intent to a higher level
offense, mistake of fact was not necessary to negate the transfer. Instead, the jury
charge included the lower level offenses of manslaughter and criminally negligent
homicide and the applicable culpable mental states of both (C.R. at 122-25). The
presence of these lesser included offenses is of particular note because TEX. PENAL
CODE 8.02(b) makes clear that a defendant may be acquitted of an offense due to
mistake of fact but may nevertheless be convicted of a lesser included offense if
the facts were as the defendant believed. A reasonable deduction from the record
is that this occurred in the applicants case. See supra at 44-45.
Third, the jury charge actually facilitated the applicants mistake of fact
defense. Because it did not simultaneously impose a duplicative, and potentially
harmful, instruction regarding the reasonableness of the applicants mistakes, the
jury charge was actually superior to one that the applicant insists should have been
requested. See supra at 39-40.
In sum, a mistake of fact jury instruction was unnecessary since the defense
was unquestionably subsumed in the applicants jury charge and the applicant was
not effectively prevented from presenting her defense. Accordingly, the
applicant fails to demonstrate deficient performance or prejudice, and her claim for
relief should be denied. Strickland, 466 U.S. at 700; Okonkwo, 398 S.W.3d at 702-
03 (Cochran, J., concurring).
49

PRAYER

The applicants claim for relief is meritless. She asks that a prevailing
professional norm be recognized and retroactively applied, inaccuracies in her
attorneys affidavit be overlooked, and prejudice be assumed notwithstanding a
reasonable deduction from the record that the jury actually gave effect to her
mistake of fact defense. The habeas court embraced the applicants claim; this
Court should not.
Okonkwo makes clear that the applicant fails to demonstrate that her attorney
rendered deficient performance or that she was in any way prejudiced by his
representation. To the contrary, defense counsel and the jury charge
unquestionably made the adversarial testing process work. Accordingly, the State
prays that the Court of Criminal Appeals deny the instant application for habeas
corpus relief.

50

SIGNED this 28th day of April, 2014.

RESPECTFULLY SUBMITTED,

DEVON ANDERSON
DISTRICT ATTORNEY
HARRIS COUNTY, TEXAS





_________________________________
Joshua A. Reiss
Assistant District Attorney
Harris County District Attorney
1201 Franklin
Houston TX 77002
(713) 755-6657
(713) 755-5809 (fax)
reiss_josh@dao.hctx.net
SBOT # 24053738



51


CERTIFICATE OF SERVICE AND COMPLIANCE

Service has been accomplished by sending a copy of the accompanying
instrument to the applicants counsel via U.S. mail at the following address:

Randy Schaffer
The Schaffer Firm
1301 McKinney
Suite 3100
Houston, Texas 77010

Pursuant to TEX. R. APP. P. 9.4, I certify that the instant document contains
9,101 words.

SIGNED this 28th day of April, 2014.



_________________________________
Joshua A. Reiss
Assistant District Attorney
Harris County District Attorney
1201 Franklin
Houston TX 77002
(713) 755-6657
(713) 755-5809 (fax)
reiss_josh@dao.hctx.net
SBOT # 24053738