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PD-0439-16 07/27/2016

"Does the submission of an instruction on transferred intent entitle a defendant to an instruction on mistake of fact even if the greater offense does not have any additional culpable mental state and there is no evidence that the defendant harbored a mistaken belief?"

Rodriguez was convicted of aggravated assault. At the charge conference, the trial court announced that it would submit an instruction on transferred intent because Rodriguez would be responsible for causing serious bodily injury even if he intended only bodily injury. In response, Rodriguez requested an instruction on mistake of fact, which was denied.

The court of appeals disagreed and reversed. Relying on 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), it held that a defendant who is subject to a transferred intent provision is entitled, upon request, to a mistake-of-fact instruction. It held Rodriguez was harmed because he was unable to effectively present his defense.

The State makes several arguments against entitlement to a mistake instruction. First, there was no evidence that Rodriguez harbored any mistake about the effect of his conduct, reasonable or otherwise. Entitlement to a defense without evidence to support it violates a basic tenet of charge law. Second, an instruction on transferred intent was unnecessary because aggravated assault does not require any intent to cause serious bodily injury. Once bodily injury is intended, Tex. Penal Code § 22.02 makes the actor responsible for the serious bodily injury that results. Third, the reasoning of Thompson was flawed because the law of transferred intent is a legislative determination that responsibility for the harm actually caused cannot be avoided by mistake. Moreover, it was based on a case with an underlying offense that parallels aggravated assault.

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