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  • Writer's pictureBrian Foley

Houston DWI Attorney - Texas Penal Code Section 8.02 - Mistake of Fact

Houston DWI Attorney - Texas Penal Code Section 8.02 - Mistake of Fact

Houston DWI Attorney - Texas Penal Code Section 8.02 - Mistake of Fact

Texas Penal Code Section 8.02(a) is a powerful tool that offers a defense to prosecution when an actor, the individual accused of committing a crime, forms a reasonable belief about a matter of fact through a mistake. This defense comes into play when the mistaken belief negates the type of culpability required for the commission of the offense.

In simpler terms, if the accused person genuinely believed that they were not committing a crime due to a reasonable mistake about a fact, this belief can serve as a robust defense against criminal charges.

Lesser Included Offense

Importantly, even if an actor's mistake of fact is accepted as a defense to the primary offense charged, they may still face the possibility of being convicted of a lesser included offense if the facts align with the actor's mistaken belief.

Commentary and Case Examples

The Significance of Reasonable Belief

A fundamental aspect of invoking the mistake of fact defense in Texas is the concept of a "reasonable belief." It is insufficient for the accused to merely claim they made a mistake. The belief must be objectively reasonable under the circumstances. Courts will carefully consider whether a person in the same situation, with similar knowledge and experience, would have formed the same belief.

Case Example 1 (Beggs v. State, 597 S.W.2d 375, Tex. Crim. App. 1980): In this case, the Texas Court of Criminal Appeals addressed the application of the mistake-of-fact provision to a scenario where it was clear that the defendant was entitled to a mistake-of-fact instruction. The defendant was convicted of injury to a child for administering a bath that scalded the child. She claimed she did not know the bathwater was hot enough to cause injury. The court ruled in her favor, emphasizing the importance of proving that her mistaken belief was both honest and reasonable.

The Jury's Role

In cases involving a claim of mistake, whether the defense is raised and submitted to the jury can be a strategic decision. While the mistake of fact defense may appear beneficial, it could also introduce complexities related to the reasonableness of the belief.

Case Example 2 (Traylor v. State, 43 S.W.3d 725, Tex. App. - Beaumont 2001): In this case, the defendant was charged with assaulting a public servant based on resisting arrest, claiming he did not know the police were law enforcement officers. The court held that the mistake of fact instruction was unnecessary because the jury instructions on the elements of the offense were sufficient. The court relied on the principle that if the jury believed the defendant's story, they could not have convicted him under the given charge.


The defense of "Mistake of Fact" under Texas Penal Code Section 8.02 is a powerful legal tool, but it comes with the requirement of having a genuinely held and objectively reasonable belief. Understanding the complexities of this defense is crucial in building a strong criminal defense strategy. If you or a loved one is facing criminal charges in Texas, consult with our experienced attorneys at Houston Criminal Defense Attorneys PLLC. We have the knowledge and expertise to protect your rights and achieve the best possible outcome for your case. Contact us today to schedule a consultation and discuss your legal options.


Sec. 8.02. MISTAKE OF FACT. (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.

(b) Although an actor's mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser included offense of which he would be guilty if the fact were as he believed.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

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