May-June 2018

Transferred intent and the ­mistake-of-fact defense

Andrea L. Westerfeld

Assistant County & District Attorney in Ellis County

In Rodriguez v. State, prosecutors asked the Court of Criminal Appeals (CCA) to overrule Thompson v. State, a case that gave a nearly universal right to a mistake-of-fact defense in any case that involved transferred intent.1 The CCA declined to overrule Thompson, but it did narrow its reach. More importantly, the Court clarified other issues about aggravated assault and the mistake-of-fact defense that will make future cases easier to understand.

Thompson v. State
In 2007, the CCA decided Thompson v. State, an injury to a child case.2 The defendant was an associate pastor at a church who worked with the children’s Bible-study program. When the Bible-study teacher reported that an 11-year-old boy was misbehaving, Thompson and his brother drove to the boy’s house, and Thompson beat the boy with a tree branch more than 100 times over an hour and a half while his brother held the boy down. Thompson was charged with first-degree injury to a child.3
    First-degree injury to a child requires the intentional or knowing infliction of serious bodily injury, while third-degree requires only the intentional or knowing infliction of bodily injury. The jury charge contained a transferred intent instruction, authorizing the jury to convict if the defendant intended to cause bodily injury but caused serious bodily injury instead. The jury convicted Thompson of first-degree injury to a child.

Transferred intent and mistake of fact
On appeal, Thompson argued that the transferred intent statute was too broad and could not create liability for a higher-level offense than the person intended. Transferred intent means that a person may be held criminally responsible for committing an offense he did not intend if he intended to commit a different offense instead.4 If a person intended to commit one crime but instead committed another—or if he intended to commit a crime against one person but instead committed it someone else—then his intent can transfer from one offense to the other. This idea applies even if the crime actually committed is a higher-level offense than the one intended.5
    But the Court went farther and held that when a transferred intent instruction is given, the defendant is entitled to raise the mistake-of-fact defense.6 Mistake of fact is a defense where a person formed a reasonable belief about a fact if his mistaken belief negated the culpability required for commission of the offense.7 The two key factors for mistake of fact are: 1) that the mistake was reasonable and 2) that the mistake negated the required mental state. If the mistake was regarding a tangential fact that doesn’t affect the mens rea of the offense, then it does not raise the mistake of fact defense.
    Therefore, Thompson’s intent to commit bodily injury could transfer to committing serious bodily injury. But if Thompson reasonably but mistakenly believed that his actions would cause only simple (not serious) bodily injury, then he would be acquitted.8 The lower courts generally read Thompson as a requirement that a mistake-of-fact instruction must accompany a transferred intent instruction in all circumstances.

Rodriguez v. State
Robert Rodriguez and his brother attacked the victim in a nightclub parking lot, in what was believed to be a carjacking gone wrong.9 During the attack, the victim’s knee was badly damaged, requiring surgery and a long recovery period. Both sides agreed during trial that this was an unusually serious injury for the type of attack. Usually it would be seen more often in car accidents or falls from a great height.
    At trial, the jury charge included an instruction on transferred intent, informing the jury that if it believed Rodriguez had intentionally or knowingly inflicted only bodily injury, that intent transferred to the offense of aggravated assault causing serious bodily injury. Rodriguez requested a mistake of fact instruction to tell the jury that if he reasonably believed he intended to cause only simple bodily injury, he should be acquitted. The trial court denied the instruction, and Rodriguez was convicted. The Fourth Court of Appeals reversed, finding—per Thompson—that the mistake of fact instruction was required if the transferred intent instruction was given.
    The State appealed to the CCA, hoping to overrule Thompson’s broad requirement of a mistake-of-fact instruction in all transferred intent cases.

Intent in aggravated assault cases
Rather than overrule Thompson, the CCA took a different track. Thompson involved injury to a child. That is a first-degree offense if the person intentionally or knowingly causes serious bodily injury and a third-degree if he intentionally or knowingly causes bodily injury. But Rodriguez was charged with aggravated assault by causing serious bodily injury, and the mens rea in that offense is not quite so clear.
    A person commits “simple” assault if he intentionally, knowingly, or recklessly causes bodily injury.10 He commits aggravated assault if he commits a simple assault and, among other things, causes serious bodily injury.11 The wording is different from injury to a child, and it is significant as far as mens rea is concerned. There is no additional mental state required in aggravated assault—just that the person committed simple assault and also caused serious bodily injury.
    This means that “the line between lawful and unlawful conduct is crossed when one goes from accidentally caused bodily injury to culpably causing bodily injury.”12 Once that line has been crossed, the defendant may be held accountable for a more serious offense if he causes a more serious injury. This is in line with the CCA’s earlier decision in Landrian v. State. There, the defendant was charged with aggravated assault both by using a deadly weapon and by causing serious bodily injury. The CCA concluded that the gravamen of aggravated assault was “causing bodily injury.” Accordingly, the jury was not required to be unanimous as to whether the defendant used a deadly weapon or caused serious bodily injury.13 The culpable mental conduct in an aggravated assault is causing the simple bodily injury. After that, the defendant can be held culpable for a higher-level offense if he caused more injury than he intended or if he used a deadly weapon.
    But what does this mean for transferred intent?

Applying Thompson to Rodriguez
Ultimately, transferred intent is applicable only if the defendant intended to commit one offense and instead committed another. Thus, in Thompson, the intent to commit third-degree injury to a child transferred to committing first-degree injury to a child. But in Rodriguez, with an aggravated assault charge, there is no intent to transfer. The only intent applicable was causing bodily injury. Rodriguez did not have to intend to commit serious bodily injury. Thus, the CCA held that transferred intent was inapplicable. “Rodriguez’s intent did not ‘transfer’ at all, because there was no element beyond causing ‘simple’ bodily injury that required any proof of intent.”14 Thus, the instruction on transferred intent was unnecessary in Rodriguez’s case.
    The CCA went one step further to address mistake of fact and concluded it could not have been an issue in this aggravated assault case. If the intent to commit serious bodily injury was required and Rodriguez had reasonably but mistakenly believed he was not going to cause serious injury, then he could have received a mistake-of-fact instruction and perhaps been convicted only of the lesser offense he intended. But the only intent required was to commit bodily injury. Rodriguez’s mistake did not affect the culpability required to commit the offense with which he was charged.15
    Therefore, the mistake of fact instruction was not required, and the CCA upheld Rodriguez’s conviction for aggravated assault.16

The takeaway
Both the State and the defense asked the CCA to overrule Thompson for different reasons, and noted legal scholar Professor George Dix also joined their request.17 The CCA side-stepped that request, but its opinion still provides valuable tools for the State going forward.
    First, the decision of mens rea for an aggravated assault. While Landrian helped, Rodriguez spells it out definitively. A defendant does not need to intend to cause serious bodily injury to commit aggravated assault. The law holds him accountable if he merely intends to cause any bodily injury but causes a serious one instead.
    Second, the rule of mistake of fact in transferred intent cases has been clarified. A mistake-of-fact instruction is not a blanket requirement in every case where a transferred intent instruction is given. Instead, the particular mistake that the defendant claims must, in addition to being reasonable, directly impact his intent to commit the offense. Where, as in Rodriguez, the defendant may have genuinely mistaken a fact but that fact does not negate his intent to commit the offense, then the mistake-of-fact instruction is not applicable.


1  Rodriguez v. State, No. PD-0439-16, slip op. (Tex. Crim. App. Jan. 10, 2018).

2  Thompson v. State, 236 S.W.3d 787 (Tex. Crim. App. 2007).

3  Thompson was also charged with aggravated assault, but the appeal was regarding only the injury to a child case.

4  Tex. Penal Code §6.04(b)(1).

5  Thompson v. State, 236 S.W.3d 787, 800 (Tex. Crim. App. 2007).

6  Thompson, 236 S.W.3d at 800.

7  Thompson, 236 S.W.3d at 793.

8  Thompson, 236 S.W.3d at 800.

9  Rodriguez v. State, slip op. at 2.

10  Tex. Penal Code §22.01(a)(1).

11 Id.

12  Rodriguez, slip op. at 12.

13  Landrian v. State, 268 S.W.3d 532, 534 (Tex. Crim. App. 2008).

14  Rodriguez, slip op. at 14.

15 Id.

16  Rodriguez, slip op. at 15-16.

17  Rodriguez, slip op. at 15.