NO.

WR-79,302-01
_________________________________

IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
_________________________________

EX PARTE
MAURA WIGGINS LEVINE
_________________________________

From The 351st District Court
Of Harris County
Cause Number 744824-A
_________________________________

APPLICANTS BRIEF
_________________________________













Randy Schaffer
State Bar No. 17724500

1301 McKinney, Suite 3100
Houston, Texas 77010
(713) 951-9555
(713) 951-9854 (facsimile)
noguilt@swbell.net (e-mail)

Attorney for Applicant
ORAL ARGUMENT REQUESTED MAURA WIGGINS LEVINE
79,302-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/25/2014 12:58:53 PM
Accepted 4/25/2014 2:08:28 PM
ABEL ACOSTA
CLERK
April 25, 2014
IDENTITY OF THE PARTIES


Appellant: Maura Wiggins Levine
Inmate No. 901149
Murray Unit
1916 N. Hwy. 36 Bypass
Gatesville, Texas 76582

Trial Counsel: Don Catlett
1000 W. Nifong Blvd.
Bldg. 7, No. 100
Columbia, Mo. 65203

Appellate Counsel: Brian Wice
440 Louisiana, Suite 900
Houston, Texas 77002

Habeas Counsel: Randy Schaffer
1301 McKinney, Suite 3100
Houston, Texas 77010

Trial Prosecutor: Terrance Windham
Michelle Beck
1201 Franklin, Suite 600
Houston, Texas 77002

Habeas Prosecutor: J oshua Reiss
1201 Franklin, Suite 600
Houston, Texas 77002

Trial and Habeas J udge: Mark Kent Ellis
351st District Court
1201 Franklin
Houston, Texas 77002

i
SUBJECT INDEX

Page

STATEMENT OF THE CASE .............................................................................. 1

STATEMENT REGARDING ORAL ARGUMENT .......................................... 2

ISSUE PRESENTED ............................................................................................. 2

STATEMENT OF FACTS ..................................................................................... 2

SUMMARY OF THE ARGUMENT .................................................................... 7

ARGUMENT .......................................................................................................... 8

TRIAL COUNSELS FAILURE TO REQUEST A J URY
INSTRUCTION ON THE DEFENSE OF MISTAKE OF FACT AND
OBJ ECT TO THE INSTRUCTION ON SELF-DEFENSE DENIED
APPLICANT THE EFFECTIVE ASSISTANCE OF COUNSEL AT
THE GUILT-INNOCENCE STAGE.

A. The Standard Of Review .............................................................. 8

B. Deficient Performance .................................................................. 10

1. Counsel failed to request a jury instruction on the
defense of mistake of fact. ...................................................... 10

2. Counsel failed to object to the jury instruction on
self-defense ............................................................................. 18

C. Prejudice ....................................................................................... 20

CONCLUSION ................................................................................................. 22

CERTIFICATE OF SERVICE ......................................................................... 23

CERTIFICATE OF COMPLIANCE ................................................................ 23


ii
INDEX OF AUTHORITIES

Cases Page

Anderson v. State, 11 S.W.3d 369 (Tex. App.Houston [1st Dist.] 2000,
pet. refd). ........................................................................... 13

Beggs v. State, 597 S.W. 2d 375 (Tex. Crim. App. 1980) ............................... 13

Granger v. State, 3 S.W.3d 36 (Tex. Crim. App. 1999) ................................... 13

Green v. State, 899 S.W.2d 245 (Tex. App.San Antonio 1995, no pet.). ..... 18

Kyles v. Whitley, 514 U.S. 419 (1995) ............................................................ 9

Loudermilk v. State, 993 S.W.2d 382 (Tex. App.Eastland 1999,
pet. refd) ......................................................................... 12

Louis v. State, 393 S.W. 3d 246 (Tex. Crim. App. 2012) ................................ 14, 21

Mata v. State, 627 S.W. 3d 838 (Tex. App.San Antonio 1982, no pet.) ...... 14

McMann v. Richardson, 397 U.S. 759 (1970) .................................................. 8

Okonkwo v. State, 398 S.W. 3d 689 (Tex. Crim. App. 2013)..................... 1, 15-17

Powell v. Alabama, 287 U.S. 45 (1932) ........................................................... 8

Strickland v. Washington, 466 U.S. 668 (1984) ............................................... 8, 9

Taiwo v. State, 2010 WL 2306040 (Tex. App.Houston [1st. Dist.] 2010,
pet. refd) .................................................................................. 18

Thompson v. State, 236 S.W. 3d 787 (Tex. Crim. App. 2007) ........................ 13

Vasquez v. State, 830 S.W.2d 948 (Tex. Crim. App. 1992) ............................. 20





iii
iv
Constitutional Provisions Page

U.S. CONST. amend. VI ..................................................................................... 8

U.S. CONST. amend. XIV .................................................................................. 8

Statutory Provisions

TEX. PENAL CODE 6.03(c) (West 2010) ......................................................... 12

TEX. PENAL CODE 8.02(a) (West 2010) ......................................................... 12

TEX. PENAL CODE 19.04(a) (West 2010) ....................................................... 12

STATEMENT OF THE CASE

Applicant was charged with murder in cause number 744824 in the 351st
District Court of Harris County. She pled not guilty before the Honorable Mark
Kent Ellis. A jury convicted her of manslaughter, and the court assessed her
punishment at 20 years in prison on December 9, 1999.
1
Don Catlett represented
her at trial.
The Seventh Court of Appeals affirmed the conviction in an unpublished
opinion issued on J anuary 16, 2001, and denied a motion for clarification on March
5, 2001. Applicant did not seek discretionary review. Levine v. State, 2001 WL
221626 (Tex. App.Amarillo 2001, no pet.). Brian Wice represented her on
appeal.
Applicant filed an application for a writ of habeas corpus on May 17, 2012.
J udge Ellis, after conducting a hearing by affidavit, entered findings of fact and
conclusions of law recommending a new trial based on ineffective assistance of
counsel on February 28, 2013. This Court filed and set the case for submission to
determine whether Okonkwo v. State, 398 S.W. 3d 689 (Tex. Crim. App. 2013),
affects the analysis of Applicants ineffective assistance of counsel claims, and if
counsel rendered ineffective assistance.


1
Applicant was on deferred adjudication probation for attempted murder in cause
number 9410490. The court adjudicated her guilt in that case, assessed punishment at 20 years,
and cumulated the sentence with the sentence for manslaughter.


1
STATEMENT REGARDING ORAL ARGUMENT
Applicant requests oral argument because the statutory defense of mistake of
fact is important, often ignored by defense counsel, and a controversial topic in the
appellate courts of Texas.
ISSUE PRESENTED
Whether trial counsels failure to request a jury instruction on the
defense of mistake of fact and object to the instruction on self-
defense denied applicant the effective assistance of counsel at the
guilt-innocence stage.

STATEMENT OF FACTS
A. The Indictment
The indictment alleged, in pertinent part, that applicant intentionally and
knowingly caused the death of Bill Robins by striking him with an automobile, or
that she intended to cause serious bodily injury and caused his death by
intentionally and knowingly striking him with an automobile (C.R. 15).
B. The States Case

The police were notified of a fatal accident at 3:19 a.m. on February 11,
1997 (4 R.R. 9-10, 55). Applicant met a fire department captain at a convenience
store and directed him to the location of the accident (4 R.R. 120, 123).
2

Bill Robins was found dead in a driveway with his leg mangled (4 R.R. 123,


2
Applicant did not appear to be injured or intoxicated (4 R.R. 121, 145).


2
126-27). Applicants car was damaged on the front drivers side, and she admitted
that she was the driver (4 R.R. 26; 5 R.R. 8). Acceleration skid marks went from
the street into the driveway; another set of skid marks further up the driveway went
an additional 20 feet to a brick wall, which was the point of impact (4 R.R. 31-33;
5 R.R. 11, 13, 32, 63). An accident investigator concluded that it would take a
little bit more than two seconds for that car to leave 20 feet of skid marks (5 R.R.
65). Robins died as a result of a fractured lower left leg (6 R.R. 53-54, 73). He
had a blood alcohol level of 0.16 and had ingested marijuana during the previous
24 hours (6 R.R. 64-65).
3
The pathologist concluded that he probably was hit from
the side at an angle while facing away from the car (6 R.R. 70-72, 81-82).
Applicant gave a written statement to the police several hours after the
incident (5 R.R. 153-54, 162; 10 R.R. SX 28A). She and Robins lived together
briefly in 1993-94 (5 R.R. 188). She went to his apartment on February 9, 1997, to
stay temporarily (5 R.R. 189). She met him and his friends at a bar on the night of
February 10. They argued after they left the bar (5 R.R. 190). As she drove him to
his car, he hit her and pulled her hair because he thought that she wanted to have
sex with a man whom she had just met in the bar (5 R.R. 191-92). She stopped the
car and told him to get out; he opened the door, started to get out, but got back in


3
Robinss son, a civil trial lawyer, testified that Robins was unemployed, a black belt in
karate, and that he by probably most peoples standards . . . drank too much but was a fun
drunk (5 R.R. 196-97, 203, 211).


3
(5 R.R. 192-93). She pulled into a driveway and stopped (5 R.R. 193). He got
out, yelled at her, leaned over the front of the car, and threw a glass at the
windshield.
4
The car went forward and accidentally pinned him against a brick
wall. She could not believe that she hit him and backed up immediately.
5
She
knelt beside him and said, I didnt mean for this to happen (5 R.R. 194). When a
sprinkler came on, she moved him so he would not get wet and placed a plastic bag
on his leg.
6
She went to a nearby convenience store and called 911.
J oe Hinton, an accident reconstructionist, testified that, in his opinion, the
engine was revved to 3712 RPMs while the car was in neutral; applicant shifted
into drive; and the car traveled 19.5 to 21.8 feet at 15 miles per hour until it hit
Robins at the wall (6 R.R. 127, 131, 153, 159-63). Robins had two seconds to get
out of the way once the car started moving (6 R.R. 155).
C. The Defenses Case
Applicant testified that Robins became upset and yelled at her because she
had spoken to another man in the bar (8 R.R. 17-19).
7
He hit and squeezed her as


4
The police found broken glass in the driveway (4 R.R. 18-20).


5
Applicant explained that she had meant to back out and away from him (5 R.R. 193).


6
The police found a plastic bag on Robinss leg (4 R.R. 127).


7
Frank Reohas testified that applicant and Robins argued in the parking lot about a job
offer that she had received from a man in the bar but that they seemed to have calmed down
before they left (7 R.R. 96-98, 102, 104).

4
she was driving (8 R.R. 20-22).
8
She threatened to drive to a nearby police
substation (8 R.R. 23). He said that he would tell the police that she hit him.
Moments later, he got out; when she started to drive away, he grabbed the top of
the car and swung back inside (8 R.R. 26). She drove into a parking lot behind a
building and stopped (8 R.R. 26-27). He got out, walked to the front of the car,
and threw his drink at the windshield (8 R.R. 27). When he approached the car,
she accelerated in an effort to make the door slam shut, and the car hit the wall (8
R.R. 29-31). She backed up and saw him laying in front of the wall (8 R.R. 31).
She had not seen him standing in front of the wall and thought that he was beside
the car (8 R.R. 88, 91). She knelt beside him and told him that she did not intend
to hit him and that it was an accident (8 R.R. 31-33). When the sprinkler came on,
she pulled him out of the way, removed a bag from the trunk of her car, placed it
on his leg, went to a nearby convenience store, and called 911 (8 R.R. 33-35).
Randall Dodd, an accident reconstructionist, testified that, in his opinion, the
car was traveling about 13 miles per hour when it hit the wall, and Robins had
about one-and-one-half seconds to get out of the way (7 R.R. 155-56, 158-59).
9

Because the accelerator was not engaged when the car hit the wall, Dodd believed
that applicant intended to go backwards and, once she realized that the car was


8
A homicide sergeant observed and photographed a small cut inside applicants lip, a
fresh abrasion to the top of her head, and dried blood at the roots of her hair (7 R.R. 115-17).


9
Dodd trains the Houston Police Department accident reconstructionists (7 R.R. 221).

5
going forward, took her foot off the gas (7 R.R. 162-64).
10
Dodd concluded that
applicant was mistaken in thinking the vehicle was in reverse trying to speed
away from the area and then once they [sic] realized they [sic] were not going
backwards immediately got off the gas but at that point its too late and they [sic]
hit the wall (7 R.R. 167). It was not feasible that applicant would maximum
accelerate with the intent of running over Robins yet get off the gas before hitting
the wall (7 R.R. 170).
D. The Jury Charge
The court instructed the jury on murder, manslaughter, negligent homicide,
and self-defense (C.R. 122-28).
11

The court did not instruct the jury on the statutory defense of mistake of fact
(C.R. 122-31). Applicant did not object to its omission from the charge or to the
inclusion of the instruction on self-defense (8 R.R. 126).
E. The Arguments
Defense counsel emphasized that the events occurred within a distance of 20
feet and that the parties had less than two seconds to react (8 R.R. 148). Applicant
thought that she was shifting from park into reverse instead of from neutral into
drive (8 R.R. 151). She did not intend to drive forward or hit Robins, as


10
Dodd testified that it is not unusual for a car to travel 20 feet in an unintended direction
(7 R.R. 160).


11
The instruction on self-defense applied only to murder (C.R. 127-28).

6
demonstrated by the fact that she took her foot off the gas before the car hit him (8
R.R. 150-51). Furthermore, she told the police that she did not mean for it to
happen and that it was an accident (8 R.R. 152-53). He asked the jury to acquit
her, explaining that a verdict of not guilty is a finding of an accident (8 R.R. 133,
136, 157-58).
12

One prosecutor theorized that applicant tried to run over Robins in the street
and chased him into the driveway; when he went to the wall, she revved the car,
punched the gas, and intentionally hit him (8 R.R. 164-66). The other prosecutor
asked the jury to convict her of murder because her accident . . . oops it was self-
defense argument doesnt wash (8 R.R. 182). She concluded, You cant chase a
man down a driveway and pen [sic] him up against the wall with his back turned to
you and come in here and say self-defense. But if you dont buy that, it was an
accident (8 R.R. 185).
F. The Verdict
The jury convicted applicant of manslaughter (C.R. 132).
SUMMARY OF THE ARGUMENT
The trial court correctly recommended a new trial because trial counsel was
ineffective in failing to request a jury instruction on the defense of mistake of fact
and object to the self-defense instruction. The defense of mistake of fact was


12
Defense counsel did not mention self-defense during summation (8 R.R. 127-58).

7
raised by testimony that applicant thought that she was backing up instead of going
forward and that Robins was beside the car instead of in front of it when she
accelerated. Counsel did not consider requesting this instruction even though
mistake of fact was the essence of his defense. In its absence, the jury did not
know that mistake of fact applied to the lesser included offense of manslaughter
when it convicted applicant of that offense. In addition, counsels failure to object
to the self-defense instruction, on which he did not rely, enabled the prosecutor to
argue that applicant was presenting inconsistent defenses.
ARGUMENT

TRIAL COUNSELS FAILURE TO REQUEST A JURY
INSTRUCTION ON THE DEFENSE OF MISTAKE OF FACT
AND OBJECT TO THE INSTRUCTION ON SELF-DEFENSE
DENIED APPLICANT THE EFFECTIVE ASSISTANCE OF
COUNSEL AT THE GUILT-INNOCENCE STAGE.

A. The Standard Of Review
Applicant had a right to the effective assistance of counsel at trial. U.S.
CONST. amends. VI and XIV; Powell v. Alabama, 287 U.S. 45, 59 (1932).
Counsel must act within the range of competence demanded of counsel in criminal
cases. McMann v. Richardson, 397 U.S. 759, 771 (1970).
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court
addressed the federal constitutional standard to determine whether counsel
rendered reasonably effective assistance. The defendant first must show that

8
counsels performance was deficient; that counsel made errors so serious that he
was not functioning as the counsel guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense; that counsels errors were so serious as to deprive the
defendant of a fair trial with a reliable result.
The defendant must identify specific acts or omissions of counsel that are
alleged not to have been the result of reasonable professional judgment. The
reviewing court must then determine whether, in light of all the circumstances, the
identified acts or omissions were outside the range of professionally competent
assistance. Ultimately, the defendant must show a reasonable probability that, but
for counsels unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Strickland, 466 U.S. at 694.
Applicant need not show a reasonable probability that, but for counsels
errors, she would have been acquitted. Rather, the issue is whether she received a
fair trial that produced a verdict worthy of confidence. Cf. Kyles v. Whitley, 514
U.S. 419, 434 (1995).




9
B. Deficient Performance
1. Counsel failed to request a jury instruction on the defense of
mistake of fact.

The State introduced applicants written statement to the police, in which
she asserted that she had meant to back out and away from Robins, but the car
went forward and accidentally pinned him against a brick wall (5 R.R. 193). She
could not believe that she hit him and backed up immediately. She knelt beside
him and said, I didnt mean for this to happen (5 R.R. 194). Applicant testified
that she did not see Robins standing in front of the wall and thought that he was
beside the car when she accelerated (8 R.R. 29-31, 88, 91). She knelt beside him
and told him that she did not intend to hit him and that it was an accident (8 R.R.
31-33).
Randall Dodd, an accident reconstructionist, testified for the defense that,
because the accelerator was not engaged when the car hit the wall, he believed that
applicant intended to go backwards and, once she realized that the car was going
forward, took her foot off the gas (7 R.R. 162-64). He concluded that she was
mistaken in thinking the vehicle was in reverse trying to speed away from the area
and then once they [sic] realized they [sic] were not going backwards immediately
got off the gas but at that point its too late and they [sic] hit the wall (7 R.R.
167).

10
The court did not instruct the jury on the statutory defense of mistake of fact
(C.R. 122-31). Counsel did not object to its omission from the charge (8 R.R.
126). However, he argued that applicant thought that she was shifting from park
into reverse instead of from neutral into drive and that she did not intend to drive
forward or hit Robins, as demonstrated by the fact that she took her foot off the gas
before the car hit him (8 R.R. 150-51). The jury convicted applicant of
manslaughter (C.R. 132).
Trial counsel Don Catlett testified by affidavit that he never considered
raising the defense of mistake of fact (H.R.R. 47-48). Had he considered it, he
would have requested the instruction. Had the court given it, he would have
argued that the jury should acquit applicant because she reasonably believed that
the car was in reverse when she accelerated. Had the court refused it, he would
have objected in order to preserve the issue for appellate review. His failure to
request the instruction was inadvertent rather than strategic.
The trial court found that the defense of mistake of fact was raised by the
testimony that applicant thought that she was backing up instead of going forward
and that Robins was beside the car instead of in front of it when she accelerated;
that, had the jury been instructed on mistake of fact and believed or had a
reasonable doubt that applicants mistaken beliefs negated that she recklessly
caused Robins death, it would have acquitted her or, at most, convicted her of

11
negligent homicide; and that counsel performed deficiently in failing to request the
instruction (H.R.R. 123-24).
A person commits the offense of manslaughter if she recklessly causes the
death of an individual. TEX. PENAL CODE 19.04(a) (West 2010). Section 6.03(c)
of the Penal Code defines recklessness as follows:
A person acts recklessly, or is reckless, with respect to
circumstances surrounding his conduct or the result of his
conduct when he is aware of but consciously disregards a
substantial and unjustifiable risk that the circumstances exist or
the result will occur. The risk must be of such a nature and
degree that its disregard constitutes a gross deviation from the
standard of care that an ordinary person would exercise under
all the circumstances as viewed from the actors standpoint.

Section 8.02(a) of the Penal Code provides that 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. The defendant is entitled to an instruction on mistake of a fact in a
murder/manslaughter case if her mistaken, but reasonable, belief would negate that
she intentionally, knowingly, or recklessly caused the death of the deceased.
The defendant is entitled to an instruction on mistake of fact when her
mistaken, but reasonable, belief regarding the circumstances negates her culpable
mental state at the time of her conduct. See Loudermilk v. State, 993 S.W.2d 382,
385 (Tex. App.Eastland 1999, pet. refd) (error to refuse instruction on mistake
of fact where defendant charged with failure to leave identification at scene of

12
accident testified that he thought he was victim of hit-and-run); Granger v. State,
3 S.W.3d 36, 41 (Tex. Crim. App. 1999) (error to refuse instruction on mistake of
fact where defendant charged with murder testified that he fired shots into car in
belief it was unoccupied); Anderson v. State, 11 S.W.3d 369, 373 (Tex. App.
Houston [1st Dist.] 2000, pet. refd) (error to refuse instruction on mistake of fact
where defendant charged with aggravated assault on public servant testified that he
thought that person wearing plainclothes, driving unmarked car, was civilian rather
than police officer).
The mistake must be reasonable to constitute a circumstance that exculpates
the defendant of the offense charged, and the defendant would be guilty of any
lesser included offense that would apply if the facts were as she believed them to
be. Thompson v. State, 236 S.W. 3d 787, 800 (Tex. Crim. App. 2007). For
example, a defendants testimony that she mistakenly believed that the temperature
of the bath water was normal when she placed the child in it entitled her to a
mistake of fact instruction because the jury could find that she had a mistaken, but
reasonable, belief about a matter of fact that would negate her conscious objective
or desire to cause serious bodily injury or an awareness that her conduct was
reasonably certain to cause serious bodily injury. Beggs v. State, 597 S.W. 2d 375,
378 (Tex. Crim. App. 1980) (conviction reversed because abstract instruction on
mistake of fact failed to apply law to facts).

13
Mistake of fact is a defense to manslaughter under certain circumstances. In
Mata v. State, 627 S.W. 3d 838, 840 (Tex. App.San Antonio 1982, no pet.), the
court of appeals observed that a defendant charged with manslaughter is entitled to
a mistake of fact instruction if there is evidence that he formed a mistaken, but
reasonable, belief that the gun was incapable of discharging when he pulled back
on the trigger or hammer at the time he pointed it in the direction of the deceased,
and that his mistaken belief negated any recklessness on his part. In Louis v. State,
393 S.W. 3d 246, 253 (Tex. Crim. App. 2012), this Court held that a defendant
charged with capital murder who is subject to a transferred intent instruction is
entitled upon request to a mistake of fact instruction. It observed, The mistake of
fact defense is broadly worded and not limited to transferred intent situations. Id.
Because the transferred intent instruction was applied to all the lesser included
offenses in the charge, a mistake of fact instruction was required to permit the jury
to negate transferred intent if it believed that the defendant had a mistaken, but
reasonable, belief about the type of injury he was inflicting on the child. Id. at
253-54.
The defense of mistake of fact was raised by testimony that applicant
thought that she was backing up instead of going forward and that Robins was
beside the car rather than in front of it when she accelerated. A properly instructed
jury could have found that applicants mistaken belief was reasonable under the

14
circumstances. Robins had just assaulted her in the car, got out, and threw a glass
at the car. Applicant panicked, tried to drive away quickly, and shifted gears and
accelerated without determining that the car was in reverse instead of drive. Had
the jury believed or had a reasonable doubt that her beliefs were mistaken, but
reasonable, and negated that she recklessly caused his death, it would have
acquitted her or, at most, convicted her of negligent homicide.
This Court requested that the parties discuss the impact of its recent decision
in Okonkwo on applicants case. Although this Court denied relief in Okonkwo,
the case supports applicants position.
Okonkwo presented counterfeit currency to obtain money orders and was
charged with forgery. He denied knowing that the currency was forged. Defense
counsel argued that he should be acquitted because he could not have intended to
defraud the complainant with currency that he did not know was forged.
Okonkwo, 398 S.W. 3d at 692. However, he was convicted.
Okonkwo filed a motion for new trial alleging that he was denied the
effective assistance of counsel because counsel did not request a mistake of fact
instruction. The court of appeals agreed and reversed the conviction. This Court
granted discretionary review. It observed that the charge required the jury to find
beyond a reasonable doubt that Okonkwo knew that the currency was forged in
order to convict him. Id. at 696. Had the charge included a mistake of fact

15
instruction, the jury also would have had to decide whether his mistaken belief was
reasonable. Thus, a mistake of fact instruction would have decreased the States
burden of proof by allowing the jury to convict if it concluded that his mistaken
belief was unreasonable even if it was honest. Counsel was not ineffective in
failing to request a mistake of fact instruction that would have been inconsistent
with his theory at trial and decreased the States burden of proof. Id. at 697.
However, the Court added, We do not foreclose the possibility that an attorney
could be ineffective by failing to request the instruction under different
circumstances. Id. at 697 n. 9. Applicants case presents such circumstances.
In Okonkwo, the relevant culpable mental state of knowledge encompassed
the defense of mistake of fact. In applicants case, the culpable mental state of
recklessnesswhich applied to the instruction on the lesser included offense of
manslaughterdid not also encompass the defense of mistake of fact. The jury
finding that applicant did not intentionally or knowingly cause Robins death or
intentionally or knowingly run over him with the intent to cause serious bodily
injury did not encompass a finding that she did not recklessly cause his death. The
jury did not know, in the absence of a mistake of fact instruction, that it could
acquit her of manslaughter if it found that she had a mistaken, but reasonable,
belief that the car was in reverse instead of drive or that Robins was beside the car
instead of in front of it when she accelerated and that her mistake negated that she

16
acted recklessly.
Okonkwo is distinguishable from applicants case for another important
reason. In Okonkwo, counsel testified by affidavit at the hearing on the motion for
new trial that his failure to request a mistake of fact instruction was inadvertent
rather than strategic. Id. at 692. This Court observed that the trial court, by
denying the motion for new trial, implicitly rejected the credibility of this
testimony. Id. at 694. Thus, the court of appeals erred in failing to examine the
totality of the record in a light most favorable to the trial courts ruling to assess
whether counsel, under an objective standard, rendered ineffective assistance. Id.
In applicants case, the trial court found that counsel credibly testified by affidavit
that he never considered raising the defense of mistake of fact and that the
instruction would have been given upon request (H.R.R. 121, 123). The trial court
concluded that counsel was ineffective in failing to request the instruction, that its
confidence in the conviction was undermined, and that a new trial should be
granted (H.R.R. 123-24, 126-28). An appellate court must afford almost total
deference to a trial courts findings of historical facts as well as mixed questions of
law and fact that turn on an evaluation of credibility and demeanor. Id. at 694.
This same deferential review must be given to a trial courts determination of
historical facts based solely on affidavits, regardless of whether the affidavits are
controverted. Id. Because J udge Ellis presided at both the trial and the habeas

17
corpus proceeding, and his findings are supported by the record, this Court must
defer to them.
The trial court correctly concluded that counsel performed deficiently in
failing to request an instruction on mistake of fact. Cf. Green v. State, 899 S.W.2d
245, 249 (Tex. App.San Antonio 1995, no pet.) (counsel ineffective in failing to
request mistake of fact instruction where defendant charged with theft by check
testified that he believed that funds in account were sufficient to cover check);
Taiwo v. State, 2010 WL 2306040, *6-7 (Tex. App.Houston [1st Dist.] 2010,
pet. refd) (not designated for publication) (counsel ineffective in failing to request
mistake of fact instruction where supervisor testified that cashier charged with theft
said that she might have made mistake by failing to ring up all merchandise at her
register).
2. Counsel failed to object to the jury instruction on self-defense.
The State introduced applicants written statement to the police, in which
she asserted that, after she drove Robins to his car, he hit her and pulled her hair
because he thought that she wanted to have sex with a man whom she had just met
at the bar (5 R.R. 191-92). She stopped the car and told him to get out; he opened
the door, started to get out, but got back in (5 R.R. 192-93). She pulled into a
driveway and stopped (5 R.R. 193). He got out, yelled at her, leaned over the front
of the car, and threw a glass at the windshield. The car went forward and

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accidentally pinned him against a brick wall. Thereafter, applicant testified that,
when Robins approached the car, she accelerated in an effort to make the door
slam shut, and the car hit the wall (8 R.R. 29-31).
There was no testimony that applicant intentionally or knowingly ran over
Robins because she was in fear of serious bodily injury or death and was unable to
retreat. Nonetheless, the court instructed the jury on self-defense (C.R. 126-28).
Defense counsel did not mention self-defense during summation (8 R.R. 127-58).
He asked the jury to acquit applicant, explaining that a verdict of not guilty is a
finding of an accident (8 R.R. 133, 136, 157-58). A prosecutor asked the jury to
convict applicant of murder because her accident . . . oops it was self-defense
argument doesnt wash (8 R.R. 182). She concluded, You cant chase a man
down a driveway and pen [sic] him up against the wall with his back turned to you
and come in here and say self-defense. But if you dont buy that, it was an
accident (8 R.R. 185).
Counsel testified by affidavit that he did not rely on self-defense; instead, he
argued that Robins died as a result of an accident that occurred when applicant
shifted from neutral into drive in the belief that she was shifting from park into
reverse (H.R.R. 47).
The trial court found that counsels affidavit was credible; that the evidence
did not raise, and the defense did not rely on, self-defense; that counsel performed

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deficiently in failing to object to the self-defense instruction; and that the
instruction was harmful because of the prosecutors argument (H.R.R. 125-27).
Clearly, the evidence did not raise, and the defense did not rely on, self-
defense. Inclusion of this instruction in the charge would have been harmless but
for the prosecutors argument that applicant wanted the jury to believe that she
acted in self-defense but, if the jury did not buy that, that it was an accident.
Had counsel successfully objected to this instruction, the prosecutor would not
have been able to make this harmful argument. Counsel performed deficiently in
failing to object to the instruction on self-defense. Cf. Vasquez v. State, 830
S.W.2d 948, 951 (Tex. Crim. App. 1992) (counsel ineffective in failing to request
instruction on necessity and in relying on unavailable defense of self-defense at
felon in possession of firearm trial).
C. Prejudice
Counsel argued during summation that applicant was not guilty of any crime
because she thought that she was shifting from park into reverse instead of from
neutral into drive and that she did not intend to drive forward or hit Robins. The
prosecutor countered that applicant was guilty of murder because she intentionally
ran over him. Clearly, the jury did not believe that applicant intentionally or
knowingly caused the death or intended to cause serious bodily injury, as it
acquitted her of murder. However, a properly instructed jury that found or had a

20
reasonable doubt that she mistakenly, but reasonably, believed that she was
accelerating in reverse instead of in drive, or that Robins was beside the car instead
of in front of it, probably would have concluded that she did not recklessly cause
his death and either acquitted her or convicted her of negligent homicide. Thus,
had the jury been instructed on mistake of fact, there is a reasonable probability
that the outcome of the trial would have been different. Had the trial court refused
the instruction, there is a reasonable probability that an appellate court would have
reversed the conviction. The failure to instruct the jury on mistake of fact impaired
counsels ability to argue, based on the courts charge, that applicant did not have
the requisite culpable mental state to be convicted of manslaughter. The absence
of this instruction was not harmless because it prevented applicant from presenting
a mistake of fact defense to manslaughter. See Louis, 393 S.W. 3d at 254.
Furthermore, had counsel objected to the instruction on self-defense, and the
court omitted it from the charge, the prosecutor could not have argued that
applicant was presenting inconsistent defenses. Had the trial court instructed the
jury on self-defense over objection, and the prosecutor made this argument, there is
a reasonable probability that an appellate court would have reversed the
conviction.
The trial court concluded that applicants manslaughter conviction is not
worthy of confidence in view of the fact that the jury was deprived of the

21
opportunity to consider the statutory defense of mistake of fact while
simultaneously being misled by the inapplicable self-defense instruction (H.R.R.
127-28). This Court should defer to those findings and conclusions.
CONCLUSION
This Court should grant a new trial.
Respectfully submitted,

_______________________
Randy Schaffer
State Bar No. 17724500
1301 McKinney, Suite 3100
Houston, Texas 77010
(713) 951-9555
(713) 951-9854 (facsimile)
noguilt@swbell.net
Attorney For Applicant
MAURA WIGGINS LEVINE

















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CERTIFICATE OF SERVICE

I served a copy of this document on J osh Reiss, assistant district attorney for
Harris County, 1201 Franklin, Suite 600, Houston, Texas 77002; and on Lisa
McMinn, State Prosecuting Attorney, P.O. Box 12405, Capitol Station, Austin,
Texas 78711, by United States mail, postage pre-paid, on April 24, 2014.


Randy Schaffer


CERTIFICATE OF COMPLIANCE

The word count of the countable portions of this computer-generated
document specified by Rule of Appellate Procedure 9.4(i), as shown by the
representation provided by the word-processing program that was used to create
the document, is 5,239 words. This document complies with the typeface
requirements of Rule 9.4(e), as it is printed in a conventional 14-point typeface
with footnotes in 12-point typeface.



Randy Schaffer