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Date: 03-14-2019

Case Style:

Francisco Flores v. The State of Texas

Case Number: 01-18-00260-CR

Judge: Gordon Goodman

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney: The Honorable Kim K Ogg
Daniel C. McCrory
Zachary Gibson

Defendant's Attorney: James Pons


A grand jury indicted Flores for the solicitation of capital murder. See TEX.
PENAL CODE §§ 15.03(a), 19.03(a)(3). Flores pleaded not guilty and the charged
offense was tried to a jury, which found him guilty and assessed his punishment at
12 years’ confinement and a $10,000 fine.
At trial, the State’s witnesses testified that Flores paid J. Duran, an undercover
officer with the Houston Police Department, $1,500 to kill Jose Montelongo, the
husband of a woman with whom Flores was having an extramarital affair. A
coworker whom Flores believed to be a drug trafficker, but who was actually an
informant for the Drug Enforcement Agency, introduced Flores to Duran after Flores
sought the informant’s assistance in arranging for Montelongo’s murder.
In his dealings with the informant and Duran, Flores used the word piso, the
Spanish word for “floor,” to describe what he wanted done to Montelongo. The
informant testified that piso is commonly used as slang in the illegal drug trade to
mean “to kill.” Duran similarly testified that piso meant “to murder.” Flores disputed
this, testifying that piso is slang meaning “to hit somebody, to floor them, to make
them kiss the ground.” Flores testified that he did not want Montelongo dead; he
merely wanted Duran to threaten Montelongo or knock him out so that he would
stop beating his wife.

Flores further testified that the informant understood that Flores just wanted
Montelongo threatened or assaulted, not killed. Flores conceded that, when he met
Duran, Duran spoke as if he was being hired to commit a murder. In that
conversation, Duran did not use the word piso and instead unambiguously discussed
killing Montelongo. Flores, however, claimed he “played along” with Duran’s talk
of murder at the informant’s urging. Flores explained that, before they met with
Duran, the informant had told him that Duran might “say some crazy things” but that
Duran worked for the informant and would follow instructions and not take things
further than Flores desired. When Flores expressed concern about Duran’s talk of
murder after their meeting, the informant again told him not to worry and “keep
playing along.”
Based on his testimony that he only intended to hire Duran to threaten or
assault Montelongo, Flores asked the trial court to include a mistake-of-fact
instruction in the jury charge. The trial court denied the request. Flores contends that
the trial court erred in denying this request.
I. Preservation of Error
The State contends that Flores did not preserve error with respect to the trial
court’s refusal to include a mistake-of-fact instruction. The State argues that Flores

did not specify the fact about which he was mistaken with sufficient clarity or
adequately inform the trial court as to how the jury should have been instructed.
A. Applicable law
A trial court is obligated to prepare a jury charge that accurately states the law
applicable to the charged offense. Delgado v. State, 235 S.W.3d 244, 249 (Tex.
Crim. App. 2007). But trial courts are not required to include an instruction on a
defensive issue, like mistake of fact, unless the defendant requests it or objects to its
omission. Posey v. State, 966 S.W.2d 57, 59–60, 62 (Tex. Crim. App. 1998); Acosta
v. State, 411 S.W.3d 76, 88 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Absent
a timely and proper request or objection, the defendant cannot claim error on appeal
based on the trial court’s failure to instruct the jury as to a defensive issue. Zamora
v. State, 411 S.W.3d 504, 513 (Tex. Crim. App. 2013); Mays v. State, 318 S.W.3d
368, 382–83 (Tex. Crim. App. 2010). A defendant preserves error as to a defensive
instruction so long as his request or objection conveys the substance of his complaint
to the trial court well enough to put the court on notice of the omission or error in
the charge. Bennett v. State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007); Jackson
v. State, 288 S.W.3d 60, 63 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).
B. Analysis
Defense counsel noted that a draft version of the jury charge omitted an
instruction as to mistake of fact and he requested that one be included. He argued

that Flores thought he had hired Duran to threaten or hurt Montelongo, not to kill
him, and that this misunderstanding on Flores’s part entitled him to the instruction.
The trial court denied defense counsel’s request on the ground that Flores conceded
both that Duran told him that he was going to kill Montelongo and that he did not
misunderstand Duran. This colloquy between the trial court and defense counsel
shows that the trial court understood the basis for counsel’s request for a mistake
of-fact instruction but disagreed that Flores’s testimony raised the defense. Flores
adequately conveyed the substance of his complaint to the trial court and thus
preserved the issue for appellate review.
II. Mistake of Fact
Flores contends that he was mistaken as to the true nature of his agreement
with Duran, believing that he had hired Duran to commit an assault at most. The
State responds that Flores was not mistaken about any fact that could support a
mistake-of-fact defense and thus was not entitled to an instruction on this issue.
A. Applicable law
To secure Flores’s conviction for solicitation of capital murder, the State was
required to prove beyond a reasonable doubt that (1) he intended that Duran commit
capital murder by killing Montelongo; and (2) under the circumstances as Flores
believed them to be, killing Montelongo would constitute capital murder. See TEX.

PENAL CODE § 15.03(a); Bien v. State, 550 S.W.3d 180, 185–86 (Tex. Crim. App.
It is a defense that the defendant “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). “Kind of culpability”
refers to the mental state required for criminal responsibility. Celis v. State, 416
S.W.3d 419, 430–31 (Tex. Crim. App. 2013). Thus, a mistake-of-fact defense turns
on the mistaken belief of the defendant, not others, and considers the conduct of
others only to the extent that it contributes to the defendant’s belief. Montgomery v.
State, 588 S.W.2d 950, 953 (Tex. Crim. App. [Panel Op.] 1979); Johnson v. State,
734 S.W.2d 199, 203 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d).
If the evidence raises a mistake-of-fact defense and the defendant requests an
instruction, the trial court must instruct the jury on the defense. Jackson v. State, 646
S.W.2d 225, 226–27 (Tex. Crim. App. 1983); Williams v. State, 930 S.W.2d 898,
902 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d). The trial court must do so
regardless of the strength of the evidence. Anderson v. State, 11 S.W.3d 369, 372
(Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). The reasonableness of the
defendant’s mistaken belief is a question for the jury. Granger v. State, 3 S.W.3d 36,
39–40 (Tex. Crim. App. 1999); Anderson, 11 S.W.3d at 372. But if the evidence,

when viewed in a light most favorable to the defendant, does not establish a mistake
of-fact defense, an instruction is not required. Anderson, 11 S.W.3d at 372.
B. Analysis
The jury was presented with a straightforward factual dispute. The State’s
witnesses testified that Flores hired Duran to murder Montelongo; Flores testified
that he hired Duran to threaten or assault Montelongo. Had the jury believed Flores’s
version of events, it would have been obliged to render a not-guilty verdict under the
charge given by the trial court, because his testimony, if credited, would have
negated an essential element of the offense—the intent to hire another to commit
murder. See TEX. PENAL CODE § 15.03(a); Bien, 550 S.W.3d at 185. When viewed
in the light most favorable to Flores, however, his testimony does not show any fact
about which he purports to have been mistaken that would negate his culpability.
Flores did not testify that he was mistaken about the meaning of piso. He
simply disagreed with the State’s witnesses about its meaning, testifying that piso
does not mean “to kill.” Nor did Flores claim that the informant misunderstood his
intentions. Flores instead testified that the informant knew that Flores did not want
Montelongo killed. Flores likewise did not testify that there was a
miscommunication between him and Duran. Flores understood that Duran openly
spoke of killing Montelongo. According to Flores, he “played along” despite
Duran’s talk of murder because the informant reassured him that Duran would do as

instructed regardless of what Duran actually said. In short, Flores’s defense was that
he did not intend to hire Duran to commit murder, not that he had been mistaken
about any particular fact.
The circumstances of this case resemble those of Aleman v. State, 497 S.W.3d
518 (Tex. App.—San Antonio 2016, no pet.). In Aleman, the defendant was tried for
solicitation of prostitution. See id. at 519–20. In a video recording shown to the jury,
he asked an undercover officer posing as a prostitute how much she charged for
certain sex acts. Id. at 520. Testifying in his own defense, he conceded that he asked
her, “how much,” and agreed to meet her in an alley where he could pick her up. Id.
at 520–21. On appeal, he contended that the trial court erred in denying his request
that the jury be instructed on mistake of fact. Id. at 524. He argued that he was
entitled to the instruction based on his testimony that he did not agree to pay for sex
and had no intention of doing so. See id. at 526–27. The court of appeals affirmed
the trial court, holding that the defendant’s contention that he did not intend to pay
the undercover officer for sex was not a mistake of fact as that defense is defined by
statute. See id.; see also TEX. PENAL CODE § 8.02(a).
Like the defendant in Aleman, Flores testified that he did not have the intent
necessary to commit the charged offense, solicitation of capital murder, not that he
was mistaken about a fact that negated his culpability for that offense. We therefore
overrule his contention that the trial court erred by not instructing the jury on mistake

of fact. As the omission of the instruction was not error, we need not address the
parties’ arguments as to whether its absence caused any harm. See Thompson v.
State, 227 S.W.3d 153, 164 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).

Outcome: We affirm the trial court’s judgment.

Plaintiff's Experts:

Defendant's Experts:


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