STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH
COURT OF APPEALS GUADALUPE COUNTY
Rodriguez assaulted a man, shattering the victim's knee
and causing him serious bodily injury. Rodriguez contends
that, while he intended to cause some bodily injury to the
victim, he did not honestly believe that his actions would
result in serious bodily injury. Rodriguez claims he should
have received a jury instruction that, if his belief was
reasonable under the circumstances, he should be convicted
only of misdemeanor assault. We disagree.
FACTS AND PROCEDURAL POSTURE
essential facts are these: Robert Rodriguez and his brother
assaulted Francisco Plaud-Acosta in a nightclub parking lot.
Francisco's knee was badly damaged as a result. "It
required surgery, followed by a long recovery period and
physical therapy." It is unlikely that Francisco's
knee will ever regain its pre-injury form.
State's theory was that Francisco's assault took
place in the course of a car-jacking. Rodriguez was charged
with aggravated robbery and aggravated assault.
sides elicited testimony suggesting that an injury of this
severity was not reasonably foreseeable, given its
(relatively) low-impact cause. Dr. Trent Twitero,
Francisco's orthopedic surgeon, "thought it a bit
unusual" that Francisco's knee was damaged as badly
as it was, "because usually in a bar fight we don't
see an injury quite like that[.]" He considered the
damage caused to Francisco's knee to be more on par with
"car accidents, or falls from a height[.]" Dr.
Twitero also compared Francisco's injuries to those
sometimes sustained by professional football players:
"you know, a very fast and athletic linebacker could hit
your knee when it was planted." And he described the
very particular positioning one's leg would have to be in
for an injury of this nature to occur: "I think he
probably would have had to be bearing weight on that leg at
the same time to kind of set it up with enough tension to
both sides rested and closed, the jury charge was drafted.
The charge included the following instruction:
The State's accusation is that the defendant
intentionally or knowingly caused serious bodily injury to
"Transferred intent" means a person is
criminally responsible for causing a result if the only
difference between what actually occurred and what the person
desired, contemplated, or risked is that: (1) a different
offense was committed; or (2) a different person or property
was injured, harmed, or otherwise affected.
This means that a person is criminally responsible for
causing serious bodily injury to a person although the person
did not intend or contemplate that the bodily injury be
"serious" as long as the person intended or had
knowledge that his conduct would cause any bodily injury to
objected to this instruction. His objection was overruled.
our opinion in Thompson v. State,  Rodriguez then
requested a mistake-of-fact instruction under Texas Penal
Code Section 8.02. Rodriguez's theory was that, if the
jury believed his intent was only to cause non-serious bodily
injury (sometimes called "simple" bodily injury),
should be acquitted of aggravated assault and convicted of
misdemeanor assault. This request was denied.
jury acquitted Rodriguez of aggravated robbery, convicted him
of aggravated assault, sentenced him to 12 years'
imprisonment, and assessed a $10, 000 fine.
raised only a single point of error before the Fourth Court
of Appeals: that the trial judge erred when he failed to
include Rodriguez's requested mistake-of-fact
instruction. Citing Thompson and Louis v.
State,  Rodriguez argued that, because "the
transferred intent doctrine was used to transfer the intent
from the bodily injury offense (assault) to the serious
bodily injury offense (aggravated assault), " he was
"entitled . . . to urge the mistake of fact defense-that
he had a reasonable, but mistaken belief that he was only
inflicting bodily injury."
court of appeals agreed: "[B]ecause the trial court gave
the jury an instruction on transferred intent . . . and
Rodriguez requested a mistake-of-fact instruction, the trial
court erred in refusing Rodriguez's
request." The court of appeals concluded that,
because "[i]t would not be unreasonable for Rodriguez to
be mistaken about the type of injuries his actions . . .
would cause, " the trial court's failure to give a
mistake-of-fact instruction prevented Rodriguez from
presenting a viable defense. It reversed Rodriguez's
conviction and remanded the case back to the trial
State raises the following issue on discretionary review:
"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?"
Thompson v. State, we "consider[ed] the scope
of" Texas Penal Code Section 6.04(b)(1), which provides:
A person is nevertheless criminally responsible for causing a
result if the only difference between what actually occurred
and what he desired, contemplated, or risked is that . . . a
different offense was committed[.]
concluded that this provision "can be used under certain
circumstances to transfer intent from a lesser offense to a
greater offense, even when those offenses are contained
within the same penal code section." Thus, in a
prosecution for injury to a child, the intent to cause bodily
injury "transfers" so that the offender may be
criminally liable for any serious bodily injury that in fact
recognized immediately that this construction could, if left
unchecked, raise a "concern that a person could be
penalized far beyond his actual
culpability." We thus saw fit to discuss one such
check, the Section 8.02 mistake-of-fact defense:
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.
as one's mistaken belief about the extent of the injury
being inflicted is reasonable under the circumstances, we
said, he may claim mistake-of-fact. "Of course, he would
still be guilty of the lesser-included offense of intending
to cause bodily injury." We suggested that whenever a
defendant in a criminal proceeding is "subject[ed]
to" the transferred-intent instruction, he is
"entitled (upon request) to a mistake of fact
instruction." Later, in Louis v.
State (another injury to a child case), we emphasized
the "entitled" language used in Thompson,
furthering the idea that giving a mistake-of-fact instruction
under these circumstances should be automatic (or, as the
State puts it, "reflexive").
other hand, we recently reaffirmed, in Celis v.
State, that a mistake-of-fact instruction should only be
given when the actor's mistake "negate[s] the
culpable mental state required for the
offense." We noted that, in a prosecution for
falsely holding oneself out as a lawyer, the State need not
prove a culpable mental state with respect to whether the
defendant was "in good standing with the State Bar of
Texas." We concluded that a mistake-of-fact
instruction would not be warranted as to that particular
element-even if the defendant's mistake was reasonable
under the circumstances-because any such mistake would not
negate an elemental culpable mental state. Conversely,
in prosecutions for first-degree injury to a child
(à la Thompson and Louis), the State
does have the burden to prove culpability with respect to the
causing of serious bodily injury (at least in the absence of
any transferred-intent instruction). This means that when it
comes to causing injury to a child, a mistake about the
potential injuriousness of one's conduct might negate an
elemental culpable mental state, satisfying that particular
prerequisite for a mistake-of-fact instruction.
corresponding doctrines (Thompson's suggestion
that a defendant subjected to a transferred-intent
instruction is "entitled" to mistake-of-fact and
Celis's reaffirmation that mistake-of-fact must
negate an elemental culpable mental state) raise the
following, largely dispositive question in this case: In a
prosecution for aggravated assault, does the State have the
burden to prove that the defendant harbored a culpable mental
state with respect to the element of "serious bodily