Lead Opinion
OPINION
delivered the opinion of the Court in which
The State’s petition for discretionary review asks whether trial counsel for Chidie-bele Gabriel Okonkwo, appellant, rendered ineffective assistance by failing to request a jury instruction on the defense of mistake of fact.
I. Background
A. Facts
According to appellant, he received $60,000 dollars in the mail from a man in Nigeria whom he had never met, who told appellant that he needed assistance in making purchases in the United States. Appellant claimed that he believed the money was authentic currency. He took the money to three different locations with the intent of obtaining money orders. After he successfully obtained two money orders, he was arrested when a clerk who was suspicious about the authenticity of the money called the police. The police confirmed that the money had been forged. At trial, the sole issue was whether appellant knew that the money was forged.
The jury instructions required the State to prove that appellant, “with the intent to defraud and harm another, possessed] a forged writing, namely money, and ... possessed the writing with the intent to pass the writing and with knowledge that the writing was forgedFocusing on the instruction’s requirement that a defendant act with the intent to defraud or harm another, appellant’s counsel argued in his closing statements that the State had failed to prove forgery because a person cannot “intentionally or intend to act to defraud or harm another with currency that you don’t know is counterfeit.” Rejecting this argument, the jury found appellant guilty.
Appellant filed a motion for new trial claiming that he had received ineffective assistance of counsel based on counsel’s failure to request the inclusion of a mistake-of-fact instruction. The only evidence introduced was counsel’s affidavit, in which he stated that his failure to make the request was inadvertent and not the result of trial strategy. The trial court denied the motion for new trial without rendering findings of fact or conclusions of law.
B. Direct Appeal and State’s Petition for Discretionary Review
The court of appeals reversed appellant’s conviction. Okonkwo,
First, as on direct appeal, the parties dispute whether a subjective or objective standard should be used to assess the effectiveness of counsel. Appellant prefers the former and the State the latter. Focusing on this dispute, the State asks, “Must a reviewing court look beyond the testimony of trial counsel to determine whether not requesting a mistake-of-fact instruction was objectively reasonable?”
Second, also as on direct appeal, the parties dispute whether counsel was ineffective by failing to request an instruction on mistake of fact. The State argues that counsel was not ineffective because the substance of the mistake-of-fact instruction was subsumed by the charge describing the elements of the offense and that the instruction, which lessened the State’s burden of proof, would not have benefitted
As to these two grounds, we conclude that, under an objective standard, appellant’s counsel was not unreasonable in failing to request the instruction. Counsel, therefore, did not render deficient performance.
II. Strickland
In its first ground for review, the State argues that the court of appeals improperly focused on counsel’s subjective self-assessment rather than reviewing his conduct objectively. Appellant responds that the court of appeals properly considered counsel’s admission that his failure to request the instruction was not tactical. In deciding an ineffective-assistance claim, a reviewing court must analyze the reasonableness of counsel’s conduct on the facts of the particular case, viewed at the time of the conduct. Strickland v. Washington,
Courts “commonly assume a strategic motive if any can be imagined and find counsel’s performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it.” Andrews v. State,
Appellant cites Hardwick v. Crosby for the proposition that “[t]he mere incantation of ‘strategy’ does not insulate attorney behavior from review.”
Contrary to the State’s suggestion that the court of appeals used a subjective standard to find ineffective assistance based solely on counsel’s testimony, the court of appeals articulated and applied an objective standard. It based its decision not
III. Counsel’s Failure to Request Mistake-of-Fact Instruction Was Not Objectively Unreasonable
In its second ground for review, the State asks, “Can it ever be deficient performance not to request a mistake-of-fact instruction when the offense requires the State to prove knowledge of that fact beyond a reasonable doubt?” Appellate courts, however, should decide cases on the narrowest available ground, and resolution of this case does not require resolution of this question as it might to pertain to all other cases. See Randolph v. State,
A. Deferential Standard of Review
As noted above, the trial court denied appellant’s motion for new trial. An appellate court reviews a trial court’s denial of a motion for new trial for an abuse of discretion, reversing only if the trial court’s ruling was clearly erroneous and arbitrary. Riley v. State,
The trial court, as factfinder, is the sole judge of witness credibility at a hearing on a motion for new trial with respect to both live testimony and affidavits. Id. Accordingly, the appellate court must afford almost total deference to a trial court’s findings of historical facts as well as mixed questions of law and fact that turn on an evaluation of credibility and demeanor. Id. at 458. This same deferential review must be given to a trial court’s determination of historical facts based solely on affidavits, regardless of whether the affidavits are controverted. Id. at 457. Here, in viewing the evidence in a light most favorable to the trial court’s ruling, the court of appeals should have deferred to the trial court’s implied finding that counsel’s affidavit lacked credibility. In the absence of that affidavit, the court of appeals should have examined the totality of the record in a light most favorable to the trial court’s ruling to assess whether counsel, under an objective standard, rendered ineffective assistance.
Appellant was charged with forgery of a writing, which required the State to prove that he acted “with intent to defraud or harm another.” Tex. Penal Code § 32.21(b). When intent to defraud is the mens rea of the offense, the State must prove facts from which that intent is deducible beyond a reasonable doubt and, in the absence of that proof, a conviction will not be justified. Stuebgen v. State,
Relying on this observation, the State contends that appellant would not have been entitled to an instruction on mistake of fact because the instruction was unnecessary. It argues that when an offense “requires proof of knowledge beyond a reasonable doubt, there is no reason to also instruct the jury that a reasonable doubt on the issue [of knowledge] requires that the defendant be acquitted.” In other words, the State suggests that, because the substance of the mistake-of-fact defense was subsumed by the charge and merely negated an element the State was required to prove, a mistake-of-fact instruction would not have been required and served no purpose. See Bruno v. State,
The evidence introduced by appellant’s trial counsel suggested defensive theories that inconsistently asserted either (1) that appellant lacked criminal intent because he honestly believed that the bills were genuine, even if he was unreasonable in that belief,
IV. Conclusion
We reverse the judgment of the court of appeals and render a judgment affirming the judgment of the trial court.
COCHRAN, J., filed a concurring opinion in which JOHNSON and HERVEY, JJ., joined.
Notes
. The mistake-of-fact defense is codified at Texas Penal Code Section 8.02, which provides, "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.” . Tex. Penal Code § 8.02(a).
. Appellant was charged with forgery of money, a third-degree felony. Tex. Penal Code § 32.21(b) (person commits, offense if he "forges a writing with intent to defraud or harm another”) & (e)(1) (when writing is part of an issue of money, forgery is third-degree felony).
. Strickland, v. Washington,
. As we note below, the court of appeals should have examined the record in a light most favorable to the trial court’s ruling and, therefore, should have entirely disregarded counsel’s affidavit.
. In Bruno, an unauthorized-use-of-a-motor-vehicle case, Bruno testified that the owner of the vehicle had given him permission to use her car, but the owner testified that Bruno had fled with her car without her permission. Bruno v. State,
.See also Louis v. State,
. For example, in his closing argument, defense counsel stated,
One thing that has been proven in this case beyond a reasonable doubt is that [appellant] handled this money and acted in the circumstances in a totally unreasonable way that lacks common sense even at a basic level. That’s clear.... You can’t intentionally or intend to act to defraud or harm another with currency that you don't know is counterfeit.
. Some evidence tended to show that appellant reasonably believed the bills were genuine. Testimony showed that these types of cash transactions were typical in Nigeria and that some of the currency had been determined to be genuine when it was tested with a forgery-detection pen by a store clerk.
. We do not foreclose the possibility that an attorney could be ineffective by failing to request the instruction under different circumstances or by failing to request an instruction to negate a transferred-intent element. See Thompson,
Concurrence Opinion
OPINION
filed a concurring opinion in which JOHNSON and HERVEY, JJ., joined.
I join in the Court’s opinion. I agree that appellant’s trial attorney was not ineffective for failing to request a jury instruction on the statutory mistake-of-fact defense for two distinct reasons: (1) It is not at all clear that appellant was entitled to any instruction on mistake of fact, and (2) The jury instruction that the trial judge gave was more favorable to appellant’s defensive theory than an instruction on the statutory mistake-of-fact defense would have been. Furthermore, appellant cannot show prejudice even if his counsel should have requested such an instruction because the jury rejected the more defense-friendly theory of appellant’s honest, if stupid, mistaken belief in the authenticity of the bills.
Appellant was a Nigerian engineer who worked for a large oilfield company in the Houston area. He testified that he had been sent $60,000 in cash in a newspaper-wrapped box by a fellow Nigerian named Baba Tunde. Appellant did not know Baba Tunde, but that stranger wanted him to deposit the cash in appellant’s bank. Appellant refused to get his bank involved, but he agreed to purchase a series of money orders for Baba Tunde instead.
First, appellant stopped at a nearby Wal-Mart and bought a currency detector pen which, he said, is designed to distinguish authentic bills from counterfeit ones. When he tested it on some of the bills, the pen’s ink remained a yellowish hue, which indicated that the bills were authentic.
Appellant’s sole defensive theory was that he “honestly believed the bills to be genuine.”
unlawfully and with intent to defraud and harm another, possess[ed] a forged writing, namely money, and [appellant] possessed the writing with the intent to pass the writing and with knowledge that the uniting was forged [.]
Under these jury instructions, if the State did not prove, beyond a reasonable doubt, that appellant knew that the money was counterfeit, then the jury was required to find him not guilty. It would not matter if appellant were reckless or negligent in his belief that the money was genuine, because even a patently unreasonable belief, if honestly held, negates the culpable mental state of “knowing that the writing was forged.”
So this is not a case where there was an obvious bell that should have gone off that these are definitely fake. Now, that being said, clearly Mr. Okonkwo was reckless. Clearly, he was negligent ... [but] Mr. Okonkwo’s guilt does not — is not proven by showing recklessness or negligence. It’s only proven by showing intent. And recklessness and negligence fall far short of intent.
Counsel admitted that it was “unusual and out of the ordinary” to think that someone would send $60,000 in cash through the mail from Nigeria to Texas, but his “lack of common sense” did not mean that he intended to defraud or harm
[y]our sole duty and your oath is to consider the question of whether [appellant] acted with intent to defraud or harm another by passing counterfeit money that he knew was counterfeit. You can’t ... intend to act to defraud or harm another with currency that you don’t know is counterfeit.
The prosecutor argued that appellant knew full well that the money was counterfeit:
There’s something wrong here, ladies and gentlemen, when you have this much money from someone you don’t know, from someone who tells you, I need you to purchase things for me, but I can’t purchase them; I need you to buy money orders. We’re not saying he was in cahoots with the guy. We don’t even know if this guy really does exist, but what we do know is, he received a package with this much money.
And the defendant, ladies and gentlemen, knew. How can you not know? And that whole talk about not having any common sense doesn’t matter here, ladies and gentlemen.
The jury rejected appellant’s theory that he did not know that the money was counterfeit and that he was honestly mistaken about its authenticity.
In his motion for new trial and on appeal appellant argued that his counsel was ineffective for failing to ask for a jury instruction on the statutory defense of mistake of fact. That defensive instruction would have required the jury to believe both that (1)appellant honestly believed that the bills were authentic and (2) his belief was a reasonable one that the ordinary, prudent person would have held under the same circumstances.
A. Counsel’s Conduct Was Not Constitutionally Deficient Because the Law on Appellant’s Entitlement to an Instruction on the Statutory Defense of Mistake of Fact is Unsettled.
First, it is far from certain that appellant was entitled to an instruction on the statutory defense of mistake. The elements of forgery applicable in this case are:
(1) The defendant;
(2) acting with the intent to defraud or harm another;
(3) possesses a writing that is forged [counterfeit bills];
(4) with the intent to pass it.6
The statute does not explicitly require the defendant to know that the writing is counterfeit because the legislature did not attach a culpable mental state to the status of the forged writing. In Baker v. State,
While the requisite culpable mental state under See. 32.21(b) [the forgery statute] is “intent to defraud or harm,” we fail to perceive how such culpable mental state can be shown absent proof of knowledge that the instrument is forged.9
And, based on that reasoning, we and other Texas courts have simply added a culpable mental state of “knowing” that the writing was forged in all cases.
If the State must prove that the defendant “knew” that the writing he possessed and intended to pass to another was forged, then I believe that evidence of an honest, albeit unreasonable, mistake directly rebuts that knowledge and no special mistake-of-fact instruction is required.
The law is unsettled on this precise issue, although it seems that the overwhelming weight of cases have held that the State is required to prove, as an element of its case, that the actor actually knew that the writing he possessed was forged.
The trial judge in this case instructed the jury that the State was required to prove that appellant knew that the bills he tried to pass to another were counterfeit. Under these instructions, any mistake, even a “reckless or negligent” one, would, if believed, rebut the culpable mental state and exculpate appellant.
Therefore, appellant’s attorney was not ineffective when he could establish his defensive theory and obtain an acquittal merely by raising a doubt in the jury’s mind that appellant honestly and sincerely believed that the currency he tried to change into a money order was authentic. He did not need to take on the additional burden of showing a second prong — required under the statutory mistake-of-fact defense — that a reasonable person in appellant’s position would have believed that the currency was authentic.
Appellant’s attorney urged the easier defense — an honest mistake — rattier than the more onerous one — an honest and reasonable mistake. Given the evidence in this case — in which it is hard to argue that appellant’s mistaken belief about the authenticity of the $60,000 cash he was sent in a newspaper-wrapped box through the mail from a stranger in Nigeria was reasonable — counsel’s decision, albeit inadvertent, was a wise one given the paucity of evidence suggesting the reasonableness of appellant’s belief.
C. Assuming Counsel’s Conduct Was Deficient, Appellant Has Not Proven Prejudice.
If one could assume both that appellant was clearly entitled to a jury instruction on mistake of fact and that the evidence supported a finding that appellant’s mistaken belief was reasonable, then counsel’s action in failing to request a jury instruction on the statutory defense of mistake of fact might be found defective. That would satisfy the first prong of the Strickland test,
Here, the jury was instructed that it must acquit unless it believed, beyond a reasonable doubt, that appellant did know that the currency he gave to the H-E-B clerk to buy a money order was counterfeit. The entire closing argument by appellant’s counsel was directed toward that single fact, while the prosecutor’s argument stressed that appellant did know that the money was counterfeit. The jury obviously rejected appellant’s claim of an honest or good-faith mistake by finding him guilty. If the jury rejected that claim, then it inexorably follows that it would have rejected the two-pronged claim that appellant made an honest mistake and that his mistake was a reasonable one that an ordinary prudent person in his position would have likely made. Appellant has failed to show that, even if his counsel’s conduct had been deficient, there is any reasonable likelihood that the verdict would have been different had the jury been instructed on the statutory mistake-
. According to appellant, the pen’s ink turns black or brown when marked on any surface
. Secret Service agents testified that a number of special security features that are contained in authentic bills were missing in appellant’s currency.
. Okonkwo v. State,
. See Green v. State,
. Tex. Penal Code § 8.02(a) ("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."); see Mays v. State,
. Tex. Penal Code § 32.21(a)(1)(C), (b).
.
. Id. (citing Article 979 of the former Penal Code setting out the offense of forgery as the making of a false instrument in writing, purporting to be the act of another, with the intent to injure or defraud and Article 996 which required proof that "(1) a person must pass as true (2) a forged instrument in writing (3) knowing that it was forged at the time of the passing.”).
. Id. (quoting Stuebgen v. State,
. Pfleging v. State,
However, a good argument can be (and has been) made that "knowledge” of the forgery is not a required element of the offense if the State can otherwise prove an intent to defraud or harm. See Jones v. State,
. See Celis v. State, — S.W.3d -, -, Nos. PD-1584-11 & 1585-11,
. The Stuebgen reasoning — it is illogical to think that a defendant could intend to harm
. Tex. Penal Code § 8.02(a).
. See Celis v. State, — S.W.3d at-, Nos. PD-1584-11 & 1585-11,
. See Mays,
. Of course, this element is usually established by circumstantial evidence. See Baker v. State,
. See Ex parte Smith,
. Strickland, v. Washington,
. See Strickland,