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concluding that trial court did not err in denying instruction on defense of mistake of fact because "the [asserted] defense 'did not negate the kind of culpability required for the offense [of violating a protective order]"
Summary of this case from Holt v. StateOpinion
NO. 03-16-00258-CR
04-27-2018
Douglas Scott Hoopes, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
NO. D-1-DC-15-907033 , HONORABLE JIM CORONADO, JUDGE PRESIDING MEMORANDUM OPINION
A jury convicted appellant Douglas Scott Hoopes of the offense of violating a protective order and assessed punishment at 1,265 days' imprisonment. The district court rendered judgment on the verdict. In two points of error on appeal, Hoopes asserts that the district court erred in failing to instruct the jury on the statutory defenses of mistake of fact and mistake of law. We will affirm the district court's judgment.
See Tex. Penal Code § 25.07(a), (g).
BACKGROUND
Although the conviction now challenged on appeal was founded factually on an incident that occurred in January 2015, the legal issues are framed chiefly by several years of preceding events. The jury heard evidence that beginning in September 2009, Hoopes had been restrained by a succession of family-violence protective orders issued under Family Code Chapter 85 and prohibiting him from, among other things, going within 200 yards of his now-ex-wife, her residence, and her workplace. These included an order signed on September 15, 2011, that was founded on findings that Hoopes had violated the 2009 protective order during its effective period. This order specified an original two-year period of duration (i.e., until September 15, 2013), "unless [Hoopes] is incarcerated on that date, in which case the order will remain in effect for one year after the date of [Hoopes's] release from incarceration."
The judgment of divorce, also in evidence, was rendered in April 2010.
See Tex. Fam. Code § 85.002 (authorizing issuance of protective order without necessity of family-violence findings generally required "[i]f the court finds that a respondent violated a protective order by committing an act prohibited by the order . . . , that the order was in effect at the time of the violation, and that the order has expired after the date that the violation occurred"). The 2011 protective order reflects that it was signed approximately three days after the specified expiration date of the 2009 order.
See id. § 85.025(a)(1) (generally providing for two-year duration), (c) (then providing that "[i]f a person who is the subject of a protective order is confined or imprisoned on the date the protective order would expire under Subsection (a) or (a-1), the period for which the order is effective is extended, and the order expires on the first anniversary of the date the person is released from confinement or imprisonment"); Act of May 25, 2011, 82nd Leg., R.S., ch. 627, § 2, 2011 Tex. Gen. Laws 1523, 1523.
Section 25.07 of the Penal Code creates an offense, generally a Class A misdemeanor, where a person has engaged in certain specified conduct that violates a court order issued under statutes that include "Chapter 85, Family Code," the statutory basis for the protective orders that restrained Hoopes. The jury heard evidence that Hoopes had been convicted of protective-order violations he committed not only in 2009, but also again in 2010 and 2011. The first two convictions yielded Hoopes sentences of 90 and 180 days in county jail, respectively, but the third conviction was enhanced to a third-degree felony by the two prior convictions and resulted in a sentence of seven years' imprisonment.
See id. § 25.07(g).
See Hoopes v. State, 438 S.W.3d 93, 93 (Tex. App.—Amarillo 2014, pet. ref'd).
Hoopes appealed his felony conviction and ultimately prevailed before the Amarillo Court of Appeals. The basis for reversal was a sufficiency-of-the-evidence challenge to the State's proof of the specific statutory authority, enumerated within Penal Code Section 25.07, under which the protective order had been issued. While acknowledging that the protective order itself "contains several references to the Family Code," the Amarillo court concluded that the evidence nonetheless fell short of enabling the jury reasonably to infer "the specific Family Code provision under which [the order] was issued from among those listed in [Penal Code] section 25.07(a)." In light of that perceived failure of proof, the court rendered judgment acquitting Hoopes of his felony conviction based on the 2011 violation.
See id. at 94-96.
See id. at 95 (citing Villareal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009), for proposition that Penal Code Section 25.07 required State to prove the specific enumerated statute under which the protective order had been issued); accord Garrett v. State, No. 03-14-00138-CR, 2015 Tex. App. LEXIS 11577, at *3 (Tex. App.—Austin Nov. 10, 2015, no pet.) (mem. op., not designated for publication) (recognizing that "[t]o obtain a conviction under section 25.07, the State must prove, as an element of the offense, that the violated order was issued under one of the statutes listed in section 25.07").
See Hoopes, 438 S.W.3d at 95-96; cf. Garrett, 2015 Tex. App. LEXIS 11577, at *4-5 (distinguishing Hoopes and affirming conviction under section 25.07 where protective order, admitted into evidence at trial, substantively tracked Chapter 85's provisions, enabling jury to "reasonably infer[] from the extensive shared language and similarities between the protective order violated by Garrett and the statutory language of chapter 85 that chapter 85 served as the authority under which the protective order was issued").
See Hoopes, 438 S.W.3d at 96.
The Amarillo court issued its opinion in May 2014, and the State thereafter unsuccessfully sought rehearing and then review by the Texas Court of Criminal Appeals. Consequently, mandate did not issue until January 12, 2015, following which Hoopes was released from prison on January 15, 2015. In the meantime, on June 24, 2014 (after the Amarillo court's opinion had issued but before the further appellate proceedings had concluded), the district court, citing a then-anticipated release date of August 30, 2014, had signed an order formally extending the underlying protective order (which, as noted, had already stated a duration until one year after Hoopes was released from incarceration) "until August 30, 2015, one year after [Hoopes's] release from incarceration." The order cited as its basis the Chapter 85 provision governing the duration of protective orders issued thereunder.
The State filed a motion for rehearing on June 23, 2014, which the court of appeals overruled on July 10, 2014, and a petition for discretionary review on September 11, 2014, which the Court of Criminal Appeals refused on November 26, 2014.
I.e., section 85.025.
With this prologue, the jury heard further evidence that on January 16, 2015—the day after Hoopes was released from prison—he had called his ex-wife and informed her that he was going to meet her at her workplace at a state office building in downtown Austin, one of the prohibited locations specified in the protective order. Hoopes later arrived at the building and was subsequently arrested for violating the protective order.
Hoopes was thereafter charged by indictment with violating the protective order, and in turn Penal Code Section 25.07, through his conduct on January 16, 2015. As with his most recent conviction that had been overturned by the Amarillo court, the alleged offense was aggravated to a felony based on Hoopes's previous misdemeanor convictions for violations in 2009 and 2010. At trial, Hoopes did not contest that his conduct on January 16, 2015, would have violated the terms of the protective order, assuming that order had remained in effect. Rather, Hoopes's focus, as relevant to this appeal, was to develop the predicate for the submission of either or both a "mistake of fact" or "mistake of law" defense as to whether the protective order was still in effect when Hoopes made his fateful building visit in January 2015. To that end, Hoopes presented testimony professing the contemporaneous belief that the Amarillo court's ruling had overturned or rendered ineffective not only his conviction under Section 25.07, but also the underlying protective order, leaving him unrestrained by any protective order thereafter. The district court refused to submit either defense to the jury.
See Tex. Penal Code §§ 8.02 (mistake of fact), .03 (mistake of law).
On appeal, Hoopes does not dispute the validity of the protective order or of its subsequent extension. Nor could he collaterally attack these orders in this appeal. See Poteet v. State, 957 S.W.2d 165, 167 (Tex. App.—Fort Worth 1997, no pet.) (overruling appellant's "impermissibl[e] attempt[] to collaterally attack the protective order after he has violated it"); see also Rogers v. State, No. 09-15-00270-CR, 2017 Tex. App. LEXIS 5684, at *8 (Tex. App.—Beaumont June 21, 2017, no pet.) (mem. op., not designated for publication) (holding that appellant "cannot collaterally attack the validity of the protective order on an appeal for his conviction for violating it"); Perez v. State, No. 08-15-00253-CR, 2017 Tex. App. LEXIS 4368, at *8-12 (Tex. App.—El Paso May 11, 2017, pet. ref'd) (op., not designated for publication) (concluding that if protective order was improperly approved by trial court, "the error would make the order voidable, and not void").
As noted, the jury subsequently found Hoopes guilty of violating the protective order as alleged and assessed punishment at 1,265 days' imprisonment. The district court rendered judgment accordingly. This appeal followed.
STANDARD OF REVIEW
"A defendant is entitled to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless of how the trial court views the credibility of the defense." "However, '[t]he issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.'" "Therefore, if the evidence, when viewed in the light most favorable to the defendant, does not establish the defense, the defendant is not entitled to an instruction on the issue." "[T]he evidence must be such that it will support a rational jury finding as to each element of the defense." "In determining whether a defense is supported by the evidence, 'a court must rely on its own judgment, formed in the light of its own common sense and experience, as to the limits of rational inference from the facts proven.'" "The requirement that the evidence must rationally support a jury finding before a defensive instruction is required serves to preserve the integrity of the jury as the factfinder by ensuring that it is instructed as to a defense only when, given the evidence, that defense is a rational alternative to the defendant's criminal liability." "If a jury were instructed as to a defense even though the evidence did not rationally support it, then the instruction would constitute an invitation to the jury to return a verdict based on speculation." "Whether a defense is supported by the evidence is a sufficiency question reviewable on appeal as a question of law."
Celis v. State, 416 S.W.3d 419, 430 (Tex. Crim. App. 2013) (citing Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008)); see Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006); Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999); Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996); Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991) (op. on reh'g).
Kuhn v. State, 393 S.W.3d 519, 532 (Tex. App.—Austin 2013, pet. ref'd) (quoting Tex. Penal Code § 2.03(c)).
Id. (citing Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001); Granger, 3 S.W.3d at 38; Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984)).
Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007).
Kuhn, 393 S.W.3d at 532 (quoting Shaw, 243 S.W.3d at 658).
Shaw, 243 S.W.3d at 658 (citing Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997)).
Id.
Id. (citing Wilson v. State, 777 S.W.2d 823, 825 (Tex. App.—Austin 1989), aff'd, 853 S.W.2d 547 (Tex. Crim. App. 1993)).
ANALYSIS
Mistake of Fact
In his first point of error, Hoopes asserts that the district court erred in denying his request for an instruction on the defense of mistake of fact. The statute governing the mistake-of-fact defense provides that "[i]t 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." Thus, a mistake-of-fact defense is a "defense" in the sense that it inferentially rebuts the mens-rea element of the State's case. "When he raises evidence of a mistaken belief as to the culpable mental state of the offense, a defendant is entitled to an instruction on mistake of fact upon request." However, the defense "applies only with respect to elements that require proof of a culpable mental state." Therefore, "an instruction on mistake of fact is limited to any culpable mental state required for the offense."
See 43 George Dix & John Schmolesky, Texas Practice Series: Criminal Practice and Procedure § 43:36 (3d ed. 2011) (observing that "unlike many other statutory defenses, mistake of fact negates an element of the offense: the culpable mental state," and explaining that "[t]he purpose of requesting such an instruction would be to emphasize that a mistaken belief may be the reason that the proof fails with regard to the mental state required for conviction").
Celis, 416 S.W.3d at 430 (citing Beggs v. State, 597 S.W.2d 375, 378 (Tex. Crim. App. 1980); Granger, 3 S.W.3d at 41; Giesberg v. State, 984 S.W.2d 245, 246 (Tex. Crim. App. 1998)).
Id. (citing Beggs, 597 S.W.2d at 378).
Id. at 431 (citing Thompson v. State, 236 S.W.3d 787, 798 (Tex. Crim. App. 2007)).
Here, Hoopes was charged with violating Section 25.07 of the Penal Code, which provides in relevant part that a person commits an offense if, in violation of an order issued under Chapter 85 of the Family Code, the person knowingly or intentionally goes to or near the residence or place of employment or business of a protected individual as specifically described in the order. The Court of Criminal Appeals has held that, "from a plain reading of the statute, the culpable mental states 'intentionally or knowingly' in Section 25.07(a) apply to the performance of the acts that are described in the subsections that follow those words. They do not apply to the preceding language, 'in violation of an order' etc." The court further held that although the statute requires the State to prove that the defendant had "some knowledge of the protective order," the statute does not require the State to prove that the defendant "knew its provisions."
Harvey v. State, 78 S.W.3d 368, 371 (Tex. Crim. App. 2002).
Id. at 373.
In this case, the State presented evidence that Hoopes intentionally went to his ex-wife's place of employment and that he had knowledge of the protective order. This evidence included Hoopes's own testimony on cross-examination:
Q. So you admit that you went on January 16th of 2015 to your ex-wife's place of work at [] —Additional evidence included the protective order itself, which indicated that Hoopes was present at the hearing on the application for the protective order and, therefore, would support a finding that Hoopes had "some knowledge" of the order.
A. Oh, I sure did. I was very intent about it. It's not even debatable.
. . . .
Q. You know there was a protective order in existence —
A. Yes. I know there was a protective order.
Hoopes's asserted defense—that he believed the opinion of the Amarillo Court of Appeals had rendered the underlying protective order ineffective or invalid—would not, even if credited factually, tend to rebut the above evidence of mens rea. The defense implicates neither Hoopes's intent in going to his ex wife's workplace nor his knowledge of the protective order. Because the defense "did not negate the kind of culpability required for the offense," the district court did not err in denying Hoopes a mistake-of-fact instruction.
See Celis, 416 S.W.3d at 429-32.
Additionally, for the mistake-of-fact defense to apply, "[t]he mistaken belief must be one of fact, not a mistake about whether the defendant's conduct is illegal." Here, Hoopes's defense, as reflected in his testimony, was that he had a mistaken belief as to whether his conduct in going to his ex-wife's workplace was illegal. As the State argued during the charge conference, this belief was, "at best," a mistake of law, not a mistake of fact. Thus, the district court would not have erred in denying Hoopes a mistake-of-fact instruction for this reason as well.
43 Dix & Schmolesky § 43:36.
See Plummer v. State, 426 S.W.3d 122, 127-28 (Tex. App.—Houston [1st Dist.] 2012), aff'd as reformed on other grounds, 410 S.W.3d 855 (Tex. Crim. App. 2013); Ingram v. State, 261 S.W.3d 749, 754 (Tex. App.—Tyler 2008, no pet.); Legere v. State, 82 S.W.3d 105, 108 (Tex. App.—San Antonio 2002, pet. ref'd); Vitiello v. State, 848 S.W.2d 885, 887 (Tex. App.—Houston [14th Dist.] 1993, pet. ref'd) see also Chatman v. State, Nos. 13-10-00190-CR & 13-10-00191-CR, 2011 Tex. App. LEXIS 2830, at *13 (Tex. App.—Corpus Christi Apr. 14, 2011, no pet.) (mem. op., not designated for publication) (concluding that defendant's belief that she had right to enter apartment despite eviction was mistake of law, not mistake of fact); De La Garza v. State, No. 03-96-00084-CR, 1998 Tex. App. LEXIS 6550, at *38 (Tex. App.—Austin Oct. 22, 1998, pet. ref'd) (op., not designated for publication) ("A defendant's reasonable belief that the charged conduct did not constitute a crime is a mistake of law, not a mistake of fact.").
We overrule Hoopes's first point of error.
Mistake of Law
In his second point of error, Hoopes asserts that the district court erred in denying his request for an instruction on the defense of mistake of law. The statute governing the mistake-of-law defense provides that "[i]t is an affirmative defense to prosecution that the actor reasonably believed the conduct charged did not constitute a crime and that he acted in reasonable reliance upon a written interpretation of the law contained in an opinion of a court of record or made by a public official charged by law with responsibility for interpreting the law in question." "Thus, to be entitled to the statutory defense of mistake of law, a defendant must present some evidence that (1) he reasonably believed that his conduct did not constitute a crime; and (2) he reasonably relied upon either an official statement of the law or a written interpretation of the law of the type specified in the statute." The statute "requires reliance on a narrow class of official statements or interpretations of the law." Appellate opinions are among the authorities on which a defendant may generally rely, although "'[s]ection 8.03 was not created to allow a criminal defendant to rely upon old interpretative opinions, opinions that conflict with others, or on overruled opinions.'" Moreover, the legal authority must implicate "the conduct charged in the indictment" rather than some unrelated matter.
Jenkins v. State, 468 S.W.3d 656, 673 (Tex. App.—Houston [14th Dist.] 2015, pet. dism'd) (citing Green v. State, 829 S.W.2d 222, 223 (Tex. Crim. App. 1992)).
Hawkins v. State, 656 S.W.2d 70, 73 (Tex. Crim. App. 1983); Tafel v. State, 524 S.W.3d 687, 692 (Tex. App.—Waco 2016, pet. ref'd); see also 43 Dix & Schmolesky § 43:42 ("The requirement that the reliance must be from a court or agency charged by law with the responsibility for interpreting it has been strictly construed.").
Jenkins, 468 S.W.3d at 673 (quoting Green, 829 S.W.2d at 223); see also 43 Dix & Schmolesky § 43:42 ("The law relied upon must be currently valid unless the prosecution is for former conduct that was authorized by the law at the time it occurred.").
See Hefner v. State, 735 S.W.2d 608, 625 (Tex. App.—Dallas 1987, pet. ref'd).
Here, as previously noted, the legal authority upon which Hoopes claimed to rely was the opinion by the Amarillo Court of Appeals acquitting him of a previous violation of the protective order. In its opinion, the court had concluded that the State had failed to present evidence of an essential element of the offense—"the statutory authority under which the protective order was issued"—and reversed Hoopes's conviction for that reason. In relevant part, the court analyzed the sufficiency issue as follows:
See Hoopes, 438 S.W.3d at 94.
See id. at 96.
The State's indictment of appellant did not allege the statutory authority under which the protective order was issued, . . . The State was required to show the protective order was issued under the authority of one of the statutes listed in Penal Code section 25.07(a). Having considered all of the evidence in the light most favorable to the judgment, we conclude a rational trier of fact could not have found, beyond [a] reasonable doubt, that element of the alleged violation of section 25.07. The evidence is insufficient to support appellant's conviction for violation of a protective order under section 25.07. We sustain appellant's second issue, reverse the judgment of the trial court, and render a judgment of acquittal.[]
Id. at 94-96. By agreement of the parties, only the portion of the opinion reprinted above was admitted into evidence during trial.
As mentioned earlier, Hoopes provided testimony tending to show that he believed that this opinion had the effect of overturning or rendering ineffective or invalid not only his prior conviction under Section 25.07, but also the underlying protective order. On appeal, Hoopes maintains that this testimony entitled him to a mistake-of-law instruction. However, as the State correctly observes in its brief, "the validity of the protective order itself was not within the purview of the decision appellant claims to have relied upon," and "the court issued no opinion or interpretation of whether the protective order itself was invalid in any way, nor was it asked to render an opinion on that issue." Instead, the sole issue addressed in the opinion was whether there was sufficient evidence to support Hoopes's prior conviction for violating the protective order. The court concluded that there was not. But the court's opinion went no further than that. The opinion did not provide a "written interpretation of the law" that Hoopes was accused of violating or address the validity of the protective order that formed the basis for Hoopes's conviction. Nor did the opinion purport to address any broader implications of the court's holding, such as whether the protective order would remain enforceable beyond its original expiration date, even though Hoopes had been acquitted of the offense that had authorized the extension of the protective order. In other words, to the extent that Hoopes's acquittal of violating the protective order on a prior occasion had any bearing on the continued enforceability of that order in 2015, the opinion simply did not speak to that issue.
Specifically, Hoopes testified as follows:
Q. But if this protective order said that that is a prohibited place for you to go and that you are not to go within 200 yards of it, that would be a violation of that order, wouldn't it?We note that the phrase "in all things" did not appear in the opinion itself. Instead, the phrase appeared in the court's mandate, which provided in relevant part: "WHEREFORE, WE COMMAND YOU to observe the order of said Court of Appeals for the Seventh District of Texas, in this behalf, and in all things to have it duly recognized, obeyed, and executed."
A. If it was valid, yes, it would be.
Q. You don't believe it's valid?
A. I do not believe it's valid. That's why I'm fighting.
. . . .
Q. Now, Mr. Hoopes, I believe my last question to you was with regard to the appeal that you have referred to in which you were acquitted by the court of appeals that in your mind that somehow means that the protective order is somehow invalid. Is that how you interpret that to be?
A. Because I believe the protective order is invalid. And those three words, it said "in all things," and I was hoping somebody would explain what that meant.
. . . .
Q. Sir, when you received some notice that you had been found not guilty on appeal how did that make you feel?
A. I thought it was over.
. . . .
Q. And you just said a minute ago to this jury you thought it was over at that point, didn't you?
A. I did. It said reversed in all things. And I'm thinking what is all—all things is everything.
And again, Hoopes does not argue on appeal that it does. See supra n.15.
We recognize that Hoopes is a layperson and not a lawyer and that he cannot be expected to completely understand the implications and inherent limitations of a court's holding in a legal opinion. However, we must also be mindful that the mistake-of-law defense is a "very narrow exception" to the legal maxim that ignorantia juris non excusat, and the defense has been "strictly construed" by Texas courts. For example, in Green v. State, the defendant claimed to have relied on dicta from an 1873 United States Supreme Court opinion in an attempt to excuse his behavior. Noting that the opinion was "an old interpretative opinion that is in conflict with others and has been overruled in Texas," the Texas Court of Criminal Appeals concluded that reliance on that opinion was "unreasonable as a matter of law" and, therefore, that the defendant was not entitled to a mistake-of-law instruction. Similarly, in Hefner v. State, the defendant, who had been accused of theft of client funds, claimed to have relied on court opinions voiding orders that were tangentially related to his case but did not address the underlying theft allegations against him. The Dallas Court of Appeals concluded that the defendant was not entitled to a mistake-of-law defense because "[w]hether Hefner reasonably thought the orders were void is not the issue." The court explained that "Hefner was charged with theft," and "Hefner's subjective beliefs regarding the validity of the court's orders are simply of no importance in this prosecution for theft." The court added, "Reliance by Hefner on a court's opinions nonetheless does not excuse Hefner's conduct as charged in the indictment. Hefner could not have formed a reasonable belief based on [a] court's opinions or official statements that the conduct charged in the indictment was legal." Consistent with this and other Texas precedent narrowly construing the mistake-of-law defense, we similarly conclude in this case that as a matter of law, Hoopes could not have formed a reasonable belief based on anything written in the opinion of the Amarillo Court of Appeals that his conduct in going to his ex-wife's workplace was legal in light of the protective order. Accordingly, on this record, we conclude that the district court did not err in denying Hoopes an instruction on the defense of mistake of law.
Latin for "ignorance of the law excuses not."
43 Dix & Schmolesky § 43:42.
829 S.W.2d at 222.
Id. at 223.
Id.
Id.
Id.
See Green, 829 S.W.2d at 223; Tafel, 524 S.W.3d at 692; Hefner v. State, 735 S.W.2d 608, 625-26 (Tex. App.—Dallas 1987, pet. ref'd). Cf. Jenkins, 468 S.W.3d at 658-60, 673 (defendant charged with offense of illegally voting was entitled to mistake-of-law instruction after defendant presented evidence that he relied on opinions by Attorney General and Secretary of State that provided a "written interpretation of the law" applicable to case, specifically voting eligibility requirements).
We overrule Hoopes's second point of error.
CONCLUSION
We affirm the judgment of the district court.
/s/_________
Bob Pemberton, Justice Before Justices Puryear, Pemberton, and Field Affirmed Filed: April 27, 2018 Do Not Publish