Opinion
No. 05-02-00639-CR.
Opinion Filed April 3, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 366th District, Collin County, Texas, Trial Court Cause No. 366-81639-01. Affirmed.
Before Chief Justice THOMAS and JUSTICES MOSELEY and O'NEILL.
MEMORANDUM OPINION
A jury convicted Leslie Wayne Taylor of burglary of a building. A trial court assessed punishment at one year confinement. Taylor appeals. In a single issue, he asserts the trial court erred by failing to instruction the jury on the mistake of fact defense. The background of this case and the evidence adduced at trial are well-known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. Rs. App. P. 47.2(a), 47.4. We affirm. Taylor argues the trial court erred in failing to include a "mistake of fact" instruction in the jury charge, because his testimony was sufficient to raise a mistake of fact defense. To be entitled to an instruction on a mistake of fact defense, the evidence must raise an issue as to whether the appellant mistakenly formed a reasonable belief about a "matter of fact" that would negate the requisite culpable mental state required for the commission of the offense. See Tex. Pen. Code Ann. § 8.02 (Vernon 2003). We view the evidence in a light must favorable to an appellant; however, if the evidence does not establish a mistake of fact defense, no instruction is required. Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App. 1999). For Taylor to be guilty of burglary of a building, he must have intended to deprive the owner, Larry Stone, of his personal property. See Tex. Pen. Code Ann. §§ 30.02(a), 31.03(a). Taylor testified he never intended to deprive Stone of his personal property, but that he mistakenly believed the property was abandoned. Taylor asserts his mistaken belief that the property was abandoned was a "matter of fact" that negated the requisite mental state for theft, and in turn the commission of the burglary. We disagree. Taylor admitted he entered someone's land and took personal property, not his, without anyone's consent. Cf. Vitiello v. State, 848 S.W.2d 885, 887 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd) (appellant not entitled to mistake of fact instruction because, assuming appellant's version was true, his only mistake was believing his actions were lawful). There is no evidence that Taylor had been told the property had been abandoned, or that he thought he had effective permission of the owner to enter the lot and take the personal property, or that, by mistake, he entered onto and took property from the wrong lot. See Gardner v. State, 780 S.W.2d 259, 263 (Tex.Crim. App. 1989) (mistake of fact instruction should have been given because the appellant mistakenly believed that the person who consented to him taking the car was the true owner). Taylor's testimony, instead of raising a "mistake of fact," at most only shows Taylor did not believe that his conduct was illegal. Cf. Legere v. State, 82 S.W.3d 105, 109 (Tex.App.-San Antonio 2002, pet. ref'd) (holding an appellant's belief that "eight-liners" (gambling devices) were not illegal is not a mistake of fact). After viewing the evidence in a light must favorable to Taylor, we conclude the evidence does not raise an issue as to a "matter of fact" that would have negated the requisite mental state for theft and in turn the commission of the burglary. Thus, the trial court was not required to give a mistake of fact instruction. See id. Accordingly, we resolve Taylor's single issue against him and affirm the trial court's judgment.