ACCEPTED
12-15-00154-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/22/2015 1:27:36 PM
Pam Estes
CLERK
12-15-00154-CR
RECEIVED IN
12th COURT OF APPEALS
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
TYLER, TEXAS 9/22/2015 1:27:36 PM
PAM ESTES
Clerk
DANIEL LEE KNOD
Appellant, 9-22-2015
v.
THE STATE OF TEXAS
Appellee
On Appeal from the Seventh District Court of Smith County, Texas
Trial Cause No. 007 -0010-15
APPELLANT’S AMENDED BRIEF
ORAL ARGUMENT NOT REQUESTED
Austin Reeve Jackson
Texas Bar No. 24046139
112 East Line, Suite 310
Tyler, TX 75702
Telephone: (903) 595-6070
Facsimile: (866) 387-0152
IDENTITY OF PARTIES AND COUNSEL
Attorney for Appellant
Appellate Counsel:
Austin Reeve Jackson
112 East Line, Suite 310
Tyler, TX 75702
Trial Counsel:
Kurt Noell
231 S. College Ave.
Tyler, TX 75702
Attorney for the State on Appeal
Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS............................................................................................... iii
INDEX OF AUTHORITIES ......................................................................................... iv
STATEMENT OF THE CASE....................................................................................... 2
ISSUE PRESENTED ...................................................................................................... 2
STATEMENT OF FACTS ............................................................................................. 2
SUMMARY OF THE ARGUMENT ............................................................................. 3
ARGUMENT .................................................................................................................. 4
I. THE TRIAL ERRED IN DENYING A TIMELY REQUESTED
JURY INSTRUCTION AS TO THE DEFENSE OF MISTAKE
OF FACT ......................................................................................................... 4
Standard of Review ................................................................................................... 4
Applicable Statutes ................................................................................................... 5
Applying This Law to The Instant Case ................................................................... 6
Mr. Knod was Entitled to the Instruction ............................................................... 12
The Trial Court's Denial of the Instruction Harmed Mr. Knod .............................. 13
II. THE SENTENCE IMPOSED EXCEECED THE MAXIMUM
PERMISSIBLE SETNENCE AND, THEREFORE, IS VOID ................ 17
Standard of Review ................................................................................................. 17
The Sentence Imposed was Improperly Enhanced and is Void.............................. 17
CONCLUSION AND PRAYER .................................................................................. 20
CERTIFICATE OF SERVICE ..................................................................................... 21
CERTIFICATE OF COMPLIANCE ............................................................................ 21
APPENDIX A -- DEFENDANT'S REQUESTED MISTAKE OF FACT
INSTRUCTION ............................................................................................................ 22
APPENDIX B -- CHARGE OF THE COURT TO JURY ........................................... 24
iii
INDEX OF AUTHORITIES
TEXAS SUPREME COURT AND COURT OF CRIMINAL APPEALS:
Almanza v. State,
686 S.W.2d 157 (Tex.Crim.App. 1985) ........................................................ 4, 5, 13
Arline v. State,
721 S.W.2d 348 (Tex.Crim.App. 1986) ........................................................ 14
Beggs v. State,
597 S.W.2d 375 (Tex.Crim.App. 1980) ........................................................ 16
Celis v. State,
416 S.W.3d 419 (Tex.Crim.App. 2013) ........................................................ 12
Granger v. State,
3 S.W.3d 36 (Tex.Crim.App. 1999) .............................................................. 6
Hamel v. State,
916 S.W.2d 491 (Tex.Crim.App. 1996) ........................................................ 5, 12
Jackson v. State,
646 S.W.2d 225 (Tex.Crim.App. 1983) ........................................................ 17
Jordan v. State,
107 Tex.Crim. 414, 296 S.W. 585 (1927) .................................................... 7
Levy v. State,
818 S.W.2d 801 (Tex.Crim.App. 1991) ........................................................ 17, 20
Mendoza v. State,
88 S.W.3d 236 (Tex.Crim.App. 2002) .......................................................... 5, 6
Miller v. State,
815 S.W.2d 582 (Tex.Crim.App. 1991) ........................................................ 13
Mizell v. State,
119 S.W.3d 804 (Tex.Crim.App. 2003) ........................................................ 17
iv
TEXAS SUPREME COURT AND COURT OF CRIMINAL APPEALS
(CON’T):
Ovalle v. State,
13 S.W.3d 774 (Tex.Crim.App. 2000) .......................................................... 4
Rawlings v. State,
602 S.W.2d 268 (Tex.Crim.App. 1980) ........................................................ 18
Willis v. State,
790 S.W.2d 307 (Tex.Crim.App. 1990) ....................................................... 5
Woodfox v. State,
742 S.W.2d 408 (Tex.Crim.App. 1987) ........................................................ 6
TEXAS COURTS OF APPEAL:
Bang v. State,
815 S.W.2d 838 (Tex.App.—Corpus Christi 1991) ...................................... 13
Brown v. State,
14 S.W.3d 832 (Tex.App.—Austin 2000) ..................................................... 19
Durden v. State,
290 S.W.3d 413 (Tex.App.—Texarkana 2009) ............................................. 13,14,15
Egger v. State,
817 S.W.2d 183 (Tex.App.—El Paso 1991) ................................................. 5
Freeman v. State,
970 S.W.2d 55 (Tex.App.—Tyler 1998) ....................................................... 18, 19
Green v. State,
899 S.W.2d 245 (Tex.App.—San Antonio 1995).......................................... 16
Ingram v. State,
261 S.W.3d 749 (Tex.App.—Tyler, 2008) .................................................... 10, 11
v
TEXAS COURTS OF APPEAL (CON’T):
Murchison v. State,
93 S.W.3d 239 (Tex.App.—Houston [14th Dist.] 2002) ............................... 6
Ochoa v. State,
119 S.W.3d 825 (Tex.App.—San Antonio 2003).......................................... 4
Sands v. State,
64 S.W.3d 488 (Tex.App.—Texarkana 2001) ............................................... 13
STATUTES:
TEX. CODE CRIM. PROC. art. 36.19 .................................................................... 4, 13-14
TEX. CODE CRIM. PROC. art. 44.29 .................................................................... 20
TEX. PEN. CODE § 8.02 ...................................................................................... passim
TEX. PEN. CODE § 12.35 .................................................................................... 20
TEX. PEN. CODE § 12.425 .................................................................................. 18, 19
TEX. PEN. CODE § 31.03 .................................................................................... passim
vi
12-15-00154-CR
IN THE TWELFTH COURT OF APPEALS
TYLER, TEXAS
DANIEL LEE KNOD
Appellant,
v.
THE STATE OF TEXAS
Appellee
On Appeal from the Seventh District Court of Smith County, Texas
Trial Cause No. 007 -0010-15
TO THE HONORABLE JUSTICES OF THE COURT:
Comes now, Daniel Knod, by and through his attorney of record, Austin
Reeve Jackson, and files this his brief pursuant to the Texas Rules of Appellate
Procedure, and would show the Court as follows:
STATEMENT OF THE CASE
Daniel Knod appeals his conviction and sentence for the offense of felony
theft. (I CR 72). Mr. Knod was indicted for this offense in the Seventh District
Court of Smith County in January of 2015. (I CR 2). To this charge he entered a
plea of “not guilty” and proceeded to trial by jury. (I CR 72). Ultimately, Mr.
Knod was found guilty and sentence by the trial court to serve a term of eighteen
years’ confinement. (Id.). Sentence was pronounced on 27 May and notice of ap-
peal then timely filed. (I CR 69, 72).
ISSUE PRESENTED
I. THE TRIAL COURT ERRED IN DENYING A TIMELY
REQUESTED JURY INSTRUCTION AS TO THE DE-
FENSE OF MISTAKE OF FACT.
II. THE SENTENCE IMPOSED EXCEEDED THE MAXI-
MUM PERMISSIBLE SENTENCE AND, THEREFORE,
IS VOID.
STATEMENT OF THE FACTS
In December of last year an employee at Hall GMC in Tyler noticed a vehi-
cle drive out to some dumpsters located on Hall’s property. (VI RR 49). The
dumpsters included bins for recycling and scrap as well as trash. (VI RR 114-15).
The vehicle stopped in that area and a man exited, picked up a large metal wheel
rim, placed the rim in the car, and reentered the vehicle just before it drove off of
Hall’s lot. (VI RR 50-52). The employee notified his manager and they deter-
2
mined that the rim had been taken. (VI RR 53-54). Minutes later, Appellant, Mr.
Daniel Knod, sold what was identified as the same rim to a scrap yard just down
from Hall. (VI RR 72-74). When law enforcement later learned of this, they pre-
pared a warrant and eventually arrested Mr. Knod for the offense of theft of the
rim. (VI RR 139).
To the charge for which he was ultimately indicted, felony theft, Mr. Knod
entered a plea of “not guilty” and proceed to trial by jury. (I CR 2, 72). After the
jury found him to be guilty he asked the trial court to impose punishment. (I CR
72). Based on his criminal history the range of punishment was enhanced to that
of a second degree felony and the trial court imposed punishment at the high-end
of that range; eighteen years’ confinement. (I CR 72). Sentence was pronounced
on 27 May and notice of appeal then timely filed. (I CR 69, 72).
SUMMARY OF THE ARGUMENT
A defendant in a criminal case has the right to have the jury instructed to the
law applicable to the case including any defensive issues. Thus, where the evi-
dence before the court raises the possibility that a mistake of fact negates the cul-
pable mental state for the offense charged and the defendant timely requests such
an instruction, a trial court errs in refusing to include it in its charge to the jury.
Further, where that omission harms a defendant, an appellate court should reverse
the judgment of the trial court and remand the case for a new trial.
3
Under Section 31.03(e)(4)(D) of the Penal Code, a defendant who is charged
with committing a state jail felony theft on the basis of having two or more prior
convictions for theft, cannot have the punishment range applicable to his offense
further enhanced on the basis of additional felony theft convictions. Where the
State has done so and the result has been the imposition of a sentence that exceeds
the statutory range of punishment for a state jail felony, the resulting sentence is
void and the case must be remanded for a new hearing on punishment.
ARGUMENT
I. THE TRIAL COURT ERRED IN DENYING A TIMELY
REQUESTED JURY INSTRUCTION AS TO THE DEFENSE
OF MISTAKE OF FACT.
Standard of Review
An appellate court’s review of alleged jury charge error is a two-step pro-
cess. Ochoa v. State, 119 S.W.3d 825, 828-29 (Tex.App.—San Antonio 2003, no
pet.). Initially, a court must determine if the complained of error does, in fact, con-
stitute error. TEX. CODE CRIM. PROC. ANN. art. 36.19 (Vernon 2009); Ochoa, 119
S.W.3d at 828. If so, the court then determines whether the error resulted in harm
sufficient to warrant a reversal. Ochoa, 119 S.W.3d at 828. If the error in the
charge was brought to the trial court’s attention by way of a timely objection, re-
versal is required if the appellant can show the lesser standard of “some harm.”
Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App. 2000); Almanza v. State, 686
4
S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh’g). Whether harm resulted is
determined by reviewing the record as a whole. Almanza, 686 S.W.2d at 171.
Applicable Statutes
In this case Mr. Knod was charged with the offense of theft. (I CR 2). Un-
der Section 31.03 of the Texas Penal Code, a person commits the offense of theft if
they “unlawfully appropriate[] property with intent to deprive the owner of proper-
ty.” TEX. PEN. CODE § 31.03(a). Appropriation is unlawful if it is done without
the owner’s consent. TEX. PEN. CODE § 31.03(b). To this, and other offenses,
there exists a statutory defense of “mistake of fact” where such mistake affects the
actor’s “culpable mental state regarding commission of the offense charged.” TEX.
PEN. CODE § 8.02; Egger v. State, 817 S.W.2d 183, 187 (Tex.App.—El Paso 1991,
pet. ref’d) (citing Willis v. State, 790 S.W.2d 307, 314 (Tex.Crim.App. 1990).1
When evidence from any source raises a defensive issue and the defendant
properly requests a jury charge on that issue, the trial court must submit the issue
to the jury. Mendoza v. State, 88 S.W.3d 236, 239 (Tex.Crim.App. 2002). This is
true regardless of whether the evidence is weak or strong, unimpeached or contra-
dicted, and regardless of what the trial court may think about he credibility of the
defense. Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996).
1
Section 8.02 provides: “It is a defense to prosecution that the actor thorough mistake formed a
reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability re-
quired for commission of the offense.” TEX. PEN. CODE § 8.02(a).
5
Thus, within the context of a mistake of fact defense, the only issue before
the court at trial is whether there is some evidence, if believed, that raises the de-
fense by negating the defendant’s culpable mental state. Murchison v. State, 93
S.W.3d 239, 252 (Tex.App.—Houston [14th Dist.] 2002, pet. ref’d). Neither the
trial court nor an appellate court passes judgment on whether the defendant’s mis-
taken belief was reasonable. Granger v. State, 3 S.W.3d 36, 39 (Tex.Crim.App.
1999). Rather, if there is some evidence at all, the issue must be submitted to the
jury for them to resolve that question. Id.; Mendoza, 88 S.W.3d at 239; see also
Woodfox v. State, 742 S.W.2d 408, 410 (Tex.Crim.App. 1987) (“When a judge re-
fuses to give an instruction on a defensive issue because the evidence supporting it
is weak or unbelievable, he effectively substitutes his judgment on the weight of
the evidence for that of the jury.”).
Applying This Law to The Instant Case
Because Mr. Knod was charged with the offense of theft, the State was re-
quired to prove that he took the allegedly stolen property, the rim, with the intent to
deprive the owner of that property. TEX. PEN. CODE § 31.03. The intent to deprive
the owner of the property is the culpable mental state. Id. Thus, if Mr. Knod did
not intent to deprive the owner of the rim, there was no theft. Id.; Granger, 3
S.W.3d at 41; Murchison, 93 S.W.3d at 252.
6
In support of the idea that Mr. Knod was not acting with any intent to de-
prive the owner of the rim of that property, important evidence was developed at
trial. For example, there was testimony from multiple witnesses that the rim was
located in a trash / recycling area near a dumpster where one could conclude that it
had been abandoned. See Jordan v. State, 107 Tex.Crim. 414, 296 S.W. 585
(1927) (abandoned property cannot be the subject of theft); (VI RR 67-68, 11).
Mr. Knod: Now … in Exhibit Number 8 there’s a fenced area. And
inside that little fenced area there’s a dumpster?
Witness: Yes, sir
…
Mr. Knod: [A]ctually, [there are] two or three more dumpsters …
correct?
Witness: Yes, sir.
…
Mr. Knod: Other than maybe the dumpster with – which designates
it’s for cardboard – the blue one on the right side. There’s nothing
saying to anyone, other than employees of Hall, that these materials
are being held for recycling, is there?
Witness: There’s no bin there –
Mr. Knod: Well, there’s nothing that says any of these materials are
being held for recycling by Hall GMC?
Witness: No, sir.
Mr. Knod: Not a sign that says “recycling area” or anything like that?
Witness: No, sir.
7
Mr. Knod: In fact, the most common thing you put in dumpsters is
trash, correct?
Witness: Yes, sir.
(VI RR 67-68).
Mr. Knod went on to develop evidence that the rim was located near an ac-
tual trash dumpster and piles of trash-like materials such as broken pallets. (VI RR
68, 114-15). Moreover, Mr. Knod established that the dumpster area from which
the rim was taken, while in a gated area, was not secured. (VI RR 116). In fact,
the gates were open and there was nothing indicating that the area was for employ-
ees only or subject to a “no trespassing” restriction. (Id.).
8
As State’s Exhibits 8, 9, and 102 make obvious to any viewer, the rim taken
in this case was taken from an area one could reasonable assume contained aban-
doned and discarded rubbish; or, in the parlance of Section 31.03, property that
2
(IX RR 26-31).
9
could not be the subject of a theft offense. Ingram v. State, 261 S.W.3d 749, 753
(Tex.App.—Tyler 2008, no pet.) (“[I]t is possible to take possession of abandoned
property without committing a theft or intending to commit a theft.”).
In addition to this evidence, Mr. Knod also argued that his behavior in sell-
ing the rim, during which transaction he was on camera and surrendered a copy of
his driver’s license complete with identifying information, further showed that he
believed he had a right to do what he was doing and was not acting in the deceitful
or secretive manner one might expect from a person in knowing possession of sto-
len property. (VI RR 79-80, 84-86, 94-97).
Based on the totality of this argument, Mr. Knod sought to argue to the jury
that he should be acquitted because he did not intend to unlawfully deprive anyone
of the rim. (VI RR 162-65).
The Requested Instruction
Although we now know that the owner of the rim did not intend to abandon
it, because there was some evidence indicating that the rim had been abandoned
and that Mr. Knod was acting in a manner consistent with someone who had found
property rather than stolen it, Mr. Knod sought a mistake of fact instruction. (VI
RR 173-74, 175-76). Specifically, the requested charge read:
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.
10
(I CR Supp.).3 The trial court, however, denied the charge. (VII RR 10-11).
In part, the court denied the charge based on this Court’s holding in Ingram,
261 S.W.3d 749 (Tex.App.—Tyler 2008). The trial court understood Ingram to
say, in order for a defendant to be entitled to a mistake of fact defense in similar
circumstances, there must be some testimony that the property taken was actually
“abandoned or trash or otherwise.” (VII RR 8). This, however, is not what the
Court held in Ingram. Id. at 754. Rather, the Court in that case focused its analy-
sis on the fact that under Texas law one cannot abandon real property. Id. at 753-
54. Thus, because the defendant in Ingram had committed a burglary of a habita-
tion, even if the property owner had abandoned the personal property inside the
home, the person who held title to the real property in which the personal property
was located had a greater possessory interest in the personal property taken than
did the defendant. Id. at 754. “Consequently, even if Appellant believed the per-
sonal property to be abandoned, his mistake was a mistake of law, not a mistake of
fact – Appellant intended to take the personal property for himself from the real
property of another; he just did not know such a taking was illegal.” Id.
Nowhere does Ingram impose a requirement that there be some evidence
that property was actually abandoned before a defendant is entitled to a mistake of
3
Although the order denying the requested charge was included in the initial Clerk’s Record, the
requested charge itself was not. (I CR gen.). Counsel has today filed a request with the Smith
County District Clerk to create a supplemental record that includes the document filed by Mr.
Knod in which the request for this language was made. A copy of the requested charge is at-
tached to this brief as “Appendix A.”
11
fact instruction under circumstances like those currently before the Court. To have
such a requirement would, first, make mistake of fact in applicable for if the owner
of property were to testify that he had abandoned property allegedly stolen from
him there could be no offense. TEX. PEN. CODE § 31.03. Second, such a require-
ment would ignore the rationale behind a mistake of fact defense that protects an
actor who commits an offense with no intent to do so but merely because he fails
to understand the facts of a situation as they actually are. See Celis v. State, 416
S.W.3d 419, 451-52 (Tex.Crim.App. 2013) (discussing purpose behind mistake of
fact defense and noting, “The law should not punish those who have made reason-
able mistakes about he facts or circumstances surrounding their acts.”).
Nonetheless, the trial court, which was the same court in which Ingram was
initially tried, took Ingram as “probably the most persuasive authority that I was
able to find,” and largely on that basis denied Mr. Knod’s requested charge. (VII
RR 10-11).
Mr. Knod was Entitled to the Instruction
Because there was some evidence, the fact that the rim was located amidst a
group of dumpsters with trash, scrap, and recycling, Mr. Knod’s innocent behavior
when selling the rim, for example, that if believed supported a mistake of fact de-
fense, the trial court should have given the requested instruction. Hamel, 916
S.W.2d at 493. Appellant will concede that, ultimately, the jury could have decid-
12
ed with the view taken by the State and the trial court that the evidence supporting
the defense was too weak or the conclusion too far-fetched to be resolved in Mr.
Knod’s favor, but he nonetheless had the right to have that issue resolved not by
the judge but by the jury. Sands v. State, 64 S.W.3d 488, 494 (Tex.App.—
Texarkana 2001, no pet.); see also Durden v. State, 290 S.W.3d 413, 419
(Tex.App.—Texarkana 2009, no pet.) (That the evidence supporting mistake of
fact defense “might have been seen by the trial court or the jury as feeble, contra-
dicted, impeached, or incredible” does not undermine a defendant’s “entitlement to
a defensive instruction.”). Where the trial court deprived him of that right, and de-
prived the jury of that opportunity, the court erred and this Court should hold that
Mr. Knod was entitled to his requested mistake of fact instruction. See, e.g., Bang
v. State, 815 S.W.2d 838, 842 (Tex.App.—Corpus Christ 1991, no pet.) (citing
Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App. 1991) (“When an accused
creates an issue of mistaken belief as to the culpable mental element of the offense,
he is entitled to a defensive instruction on ‘mistake of fact.’”).
The Trial Court’s Denial of the Instruction Harmed Mr. Knod
Because the trial court erred in failing to give the requested instruction, the
Court must determine whether that error harmed Mr. Knod. Almanza, 686 S.W.2d
at 171. As there was a timely request for the instruction to be given, the standard is
whether there was “some harm,” that is, “any harm.” Id.; TEX. CODE CRIM. PROC.
13
art. 36.19; see also Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986)
(“some” and “any” are synonyms when determining the amount of scrutiny to be
applied).
Here, the jury was instructed that Mr. Knod could only be found guilty if the
jury concluded that he had appropriated property “with the intent to deprive the
owner of the property….” (I CR Supp. (Jury Charge at Paragraph 7)).4 The Sixth
Court of Appeals has held that such an instruction mitigates against a finding of
harm:
While the trial court did err by denying the mistake-of-fact instruc-
tion, the jury’s verdict inferentially resolved the issue that would have
otherwise been required via the requested instruction.
Durden, 290 S.W.3d at 421.
However, Appellant would urge the Court to consider Justice Mosely’s in-
formative dissent in that case. Id. Unlike the majority, which saw the thread of
mistake of fact as a defense running throughout the entire trial and concluded, for
that reason, that no harm resulted in the denial of the requested instruction, Justice
Mosely saw the opposite. Id. at 422-23.
The centrality of the question of the mistake-of-fact defense in the tri-
al is undeniable. A jury is not nearly so precise about words as judges
and lawyers; such things as “with the intent to deprive” might not be
as concrete to a juror as to a trained legal specialist. An instruction in
4
As part of the aforementioned supplemental record request, Mr. Knod has also asked the Dis-
trict Clerk to forward to the Court the missing jury charge. A copy of the same is attached as
“Appendix B.”
14
the charge which would have explained the mistake-of-fact defense
would have served to magnify its importance and the viability of the
defense which had ben mounted. [The defendant] could have then
correctly argued on closing that the jury must first have found that
there was no mistake of fact before it went on to discuss whether the
State had met its burden of proof on each of the elements of the
charged offense. He could further have used the requested instruction
to emphasize in closing argument that it was not just his opinion that
the jury could not find guilt if there had been a mistake of fact, but
that the court had instructed it precisely that mistake of fact was a val-
id defense.
Id. at 423.
The harm about which Justice Mosely was concerned is also evident in the
case before the Court. From the first witness through the last Mr. Knod attempted
to establish that there was a legitimate and reasonable basis from which one could
conclude that Hall GMC had abandoned and discarded the rim that was taken in
this case and, as such, that if Mr. Knod was guilty of anything it was only of hav-
ing made an honest mistake about the circumstances surrounding the rim being
placed among a group of dumpsters, bins, and trash piles. While we do not know
whether the jury would have we do know, as Justice Mosely writes, that having the
judge tell the jury that the argued defense has legal validity as a concept is far
weightier and more effective than the same argument coming from defense coun-
sel. Id. at 423 (the charge from the court would have added “additional emphasis
[on the defendant’s] sole defense to the charge). This is particularly true where, as
here, closing argument began with the State attempting to discredit not only any
15
defense raised by Mr. Knod, but also by explicitly attempting to discredit Mr.
Knod’s defense counsel:
[I]n a criminal case both sides are not seeking the same thing. And
that’s why, while [defense counsel] and I practice both [sic] criminal
law, his job and my job are startlingly different.
I mention that, at this point, because you know, my oath as a prosecu-
tor is to seek justice in any particular case, not necessarily just get a
conviction at all costs. It’s to seek justice. [Defense counsel’s] obli-
gation is to his client. So unlike [defense counsel], I’m not bound and
I’m not influenced by the nonsensical whims of a criminal.
(VII RR 20).
The San Antonio Court of Appeals recognized just this type of harm in
Green v. State where that Court reversed a theft conviction where trial counsel
failed to request a mistake of fact instruction where appropriate. Green v. State,
899 S.W.2d 245 (Tex.App.—San Antonio 1995, no pet.). Relying on the Court of
Criminal Appeals’ holding in Beggs v. State, 597 S.W.2d 375 (Tex.Crim.App.
1980), the Court noted:
The failure of the charge to apply the law to the facts is calculated to
injury the rights of the defendant to a trial by jury; it deprives him of a
neutral and unbiased application of the law, leaving that function to
the partisan advocacy of opposing counsel in argument.
Green, 899 S.W.2d at 245 (quoting Beggs, 597 S.W.2d at 379 ) (internal citations
omitted).
Because as a result of the trial court’s denial of his requested mistake of fact
instruction Mr. Knod was denied his right to have the correct law correctly applied
16
to the facts of his case and to have all issues of fact resolved by the jury, the Court
should hold, regardless of any other language in the charge, that Mr. Knod was
harmed by the trial court’s error. To hold otherwise “would be to strike Section
8.02 from the Penal Code.” Jackson v. State, 646 S.W.2d 225, 225
(Tex.Crim.App. 1983) (en banc). Consequently the Court should reverse the
judgment of the trial court and remand the case for a new trial.
II. THE SENTENCE IMPOSED EXCEEDED THE MAXIMUM
PERMISSIBLE SENTENCE AND, THEREFORE, IS VOID.
Because Mr. Knod should be given a new trial on the basis of the first issue
raised, the Court need not address his second issue. However, should the Court
hold against Appellant on that initial issue, a review of his sentencing reveals that
that the judgment on punishment should be reversed and the case remanded for a
new hearing on sentencing.
Standard of Review
A sentence that is outside the statutory range of punishment for the offense
of conviction is void. Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App. 2003).
The allegation that a sentence is void may be raised for the first time on appeal.
Levy v. State, 818 S.W.2d 801, 802 (Tex.Crim.App. 1991).
The Sentence Imposed was Improperly Enhanced and is Void
In this case Mr. Knod was charged with the offense of theft, a Class A mis-
demeanor as alleged. (I CR 2); TEX. PEN. CODE § 31.03(e)(3). Because he had at
17
least two prior convictions for theft the offense level was enhanced to that of a
State Jail Felony. TEX. PEN. CODE § 31.03(e)(4)(D).
During the punishment phase of trial the State alleged that Mr. Knod had
two prior felony convictions: one for theft and one for retaliation. (VIII RR 29-
30). The State offered the prior judgments from each case and unquestionably
proved they were true. (VIII RR 29; IX RR PI, P2). Thus, the State and the trial
court believed it had been proved that Mr. Knod was a habitual offender and
should have his punishment range enhanced to that of a second degree felony.
TEX. PEN. CODE 12.425(b). As a result, Mr. Knod was sentenced to serve eighteen
years’ confinement. (I CR 72).
However, because one of the prior felony convictions alleged was a theft
conviction, as this Court has previously held, it could not be used to enhance the
offense level beyond that of a state jail felony. See Freeman v. State, 970 S.W.2d
55, 58-60 (Tex.App.—Tyler 1998, no pet.). In Freeman, this Court noted that the
theft provision under which Mr. Knod was charged, Penal Code Section
31.03(e)(4)(D), “was a special enhancement provision hat prevented the applica-
tion of the general enhancement provision of section 12.42 [of the Penal Code] as
to any prior felony convection for theft.” Id. at 59 (citing Rawlings v. State, 602
S.W.2d 268, 270-71 (Tex.Crim.App. 1980). Discussing the holding in Freeman,
the Austin Court of Appeals has explained:
18
Section 31.03(e)(4)(D) provides that theft of property having a value
of less than $1500 is a state jail felony if the defendant “has been pre-
viously convicted two or more times of any grade of theft.” Under
this subsection, a defendant’s history of theft convictions, regardless
of their number or degree, cannot elevate a subsequent theft of proper-
ty worth less than $1500 beyond the status of a state jail felony. For
this reason, the punishment for [a] third offense [of] theft under sec-
tion 31.03(e)(4)(D) cannot be enhanced pursuant to section 12.42(a)
by proof of additional felony theft convictions.
Brown v. State, 14 S.W.3d 832, 832-33 (Tex.App.—Austin 2000, pet. ref’d) (citing
Freeman, 970 S.W.2d at 59-60).
The prior holding of this Court makes clear that the previous felony theft al-
leged by the State to enhance Mr. Knod’s punishment in the instant theft case
should not have been used for that purpose. Freeman, 970 S.W.2d at 60. Remov-
ing it from consideration, the State alleged and proved on the one prior felony con-
viction for retaliation. (VIII RR 29). A conviction for a sate jail felony cannot
have its punishment range enhanced on the basis of a single prior felony conviction
absent specific circumstances not applicable in this case. See TEX. PEN. CODE §
12.425.5 Consequently, the applicable punishment range in this case was that of
only a state jail felony. TEX. PEN. CODE § 31.03(e)(4)(D); Brown, 14 S.W.3d at
833; see also TEX. PEN. CODE § 12.425(a) (a defendant convicted of a state jail fel-
ony shall be punished for a second degree felony if he has two prior felonies).
5
For example, a state jail felony with one prior felony conviction for an offense that included an
affirmative finding of a deadly weapon could be enhanced to a second degree felony. See TEX.
PEN. CODE § 12.425(c).
19
The punishment range for a state jail felony is confinement for a period of
six months to two years. TEX. PEN. CODE § 12.35. Thus, Mr. Knod’s eighteen
year sentence is well-outside that range. (I CR 72). A sentence that exceeds the
maximum possible sentence authorized by law is void. Levy, 818 S.W.2d at 802.
Therefore, the Court must reverse that portion of the judgment imposing sentence
and remand the case for a new punishment hearing. See TEX. CODE CRIM. PROC.
art. 44.29(b).
CONCLUSION AND PRAYER
Given that Mr. Knod suffered some harm as the result of the trial court’s re-
fusal to include the requested jury instruction regarding mistake of fact, a request
to which he was entitled, it is respectfully prayed that the Court reverse the judg-
ment below and remand the case for a new trial.
Alternatively, because the sentence in this case was improperly enhanced
and the resulting punishment imposed void, the Court should reverse the punish-
ment portion of the judgment and remand the case for a reassessment of sentence.
Respectfully submitted,
/s/ Austin Reeve Jackson
Texas Bar No. 24046139
112 East Line, Suite 310
Tyler, TX 75702
Telephone: (903) 595-6070
Facsimile: (866) 387-0152
20
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this brief was delivered to counsel for
the State by efile / facsimile concurrently with its filing in the Court.
/s/Austin Reeve Jackson
CERTIFICATE OF COMPLIANCE
I certify that this document complies with the requirements of Rule 9.4 and
consists of 4,662 words.
/s/ Austin Reeve Jackson
21
Appendix A
Defendant’s Requested Mistake of Fact Instruction
22
Appendix B
Charge of the Court to Jury
24