## Facts

- The State charged Cirilo Aviles with aggravated sexual assault of M.R., a child younger than fourteen, based on sexual penetration alleged in the indictment under Texas Penal Code § 22.021.
- The complainant’s age (under fourteen) was the age element alleged by the State, and the prosecution proceeded on the theory that the offense is treated as strict liability as to that age element.
- At trial, Aviles asked the court to include a jury instruction on mistake of fact under Texas Penal Code § 8.02, claiming he did not know M.R. was under fourteen and believed she was older.
- The trial court denied the requested mistake-of-fact instruction.
- The jury found Aviles guilty of aggravated sexual assault of a child.
- The trial court sentenced Aviles to 14 years in prison.
- Aviles appealed, arguing in a single issue that the trial court erred by refusing his requested mistake-of-fact jury instruction regarding the complainant’s age.

## Issues

1. In a prosecution for aggravated sexual assault of a child under Texas Penal Code § 22.021, is the defendant entitled to a mistake-of-fact jury instruction based on an alleged mistaken belief about the complainant’s age?

## Decision

- The Fourth Court of Appeals (San Antonio) affirmed the judgment.
- The court held that a defendant’s mistake or lack of knowledge about the complainant’s age is not a defense to aggravated sexual assault of a child under § 22.021.
- Because the asserted defense was not legally available, the trial court did not err by refusing to submit a mistake-of-fact instruction to the jury.

## Legal Principles

- Texas Penal Code § 8.02 (mistake of fact) provides a defense only when a reasonable mistaken belief negates the culpable mental state required for the charged offense.
- For sexual offenses against children, Texas courts treat the victim’s age as an element for which the State need not prove the defendant’s knowledge; a defendant’s mistaken belief about age does not negate the required culpability.
- Binding Texas precedent holds that mistake of fact as to a child victim’s age is not a defense to sexual offenses against minors, including aggravated sexual assault of a child. See, e.g., Black v. State and Vasquez v. State.
- A defendant is entitled to a defensive jury instruction only when (1) the defense is recognized by law and (2) some evidence raises it; if the defense is unavailable as a matter of law, no instruction is required.

## Conclusion

The court affirmed Aviles’s conviction and sentence because Texas law does not recognize mistake of fact about a complainant’s age as a defense to aggravated sexual assault of a child, so the trial court properly refused the requested jury instruction.


Aviles v. State, No. 04-13-00490-CR, 2014 WL 3339611 (2014)