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We concluded that this provision “can be used to a child (à la Thompson and Louis), the State
under certain circumstances to transfer intent from does have the burden to prove culpability with
a lesser offense to a greater offense, even when respect to the causing of serious bodily injury (at
those offenses are contained within the same penal least in the absence of any transferred-intent
code section.”12 Thus, in a prosecution for injury instruction). This means that when it comes to
to a child, the intent to cause bodily injury causing injury to a child, a mistake about the
“transfers” so that the offender may be criminally potential injuriousness of one’s conduct might
liable for any serious bodily injury that in fact negate an elemental culpable mental state,
occurs. We recognized immediately that this satisfying that particular prerequisite for a
construction could, if left unchecked, raise a mistake-of-fact instruction.
“concern that a person could be penalized far
beyond his actual culpability.” We thus saw fit to The dispositive question in this case: In a
discuss one such check, the Section 8.02 mistake- prosecution for aggravated assault, does the State
of-fact defense: It is a defense to prosecution that have the burden to prove that the defendant
the actor through mistake formed a reasonable harbored a culpable mental state with respect to
belief about a matter of fact if his mistaken belief the element of “serious bodily injury”?
negated the kind of culpability required for
commission of the offense. A. Aggravated assault does not require a
culpable mental state with respect to
So long as one’s mistaken belief about the extent the element of “serious bodily injury.”
of the injury being inflicted is reasonable under
the circumstances, we said, he may claim mistake- Section 22.02(a)—describing the base offense of
of-fact. “Of course, he would still be guilty of the aggravated assault—reads as follows:
lesser-included offense of intending to cause A person commits an offense if the person
bodily injury.” We suggested that whenever a commits assault as defined in § 22.01 and the
defendant in a criminal proceeding is “subject[ed] person: (1) causes serious bodily injury to another,
to” the transferred-intent instruction, he is including the person’s spouse; or (2) uses or
“entitled (upon request) to a mistake of fact exhibits a deadly weapon during the commission
instruction.” of the assault.

On the other hand, we recently reaffirmed, in Celis This provision does not explicitly mention any of
v. State, that a mistake-of-fact instruction should the culpable mental states listed in Section 6.02.
only be given when the actor’s mistake “negate[s] Because of this, it cannot be said to “plain[ly]”
the culpable mental state required for the offense.” indicate that culpability either should, or should
We noted that, in a prosecution for falsely 20 not, attach to the element of serious bodily injury.
holding oneself out as a lawyer, the State need not On the other hand, Section 22.02 does require that
prove a culpable mental state with respect to “the person commit[] assault as defined in §
whether the defendant was “in good standing with 22.01.” Assault, as relevant to the facts of this
the State Bar of Texas.” We concluded that a case, requires that the offender “intentionally,
mistake-of-fact instruction would not be knowingly, or recklessly” cause bodily injury to
warranted as to that particular element—even if the victim. So it is impossible to “commit[]
the defendant’s mistake was reasonable under the assault as defined in § 22.01”—and, therefore, to
circumstances—because any such mistake would commit aggravated assault—without at least being
not negate an elemental culpable mental state. reckless.
Conversely, in prosecutions for first degree injury But reckless as to what?

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