Despite some sparring regarding one of Mauricio Celis’ key arguments, the Court of Criminal Appeals affirmed his conviction on May 15.

Celis, the former Corpus Christi law firm owner who was convicted in 2009 of falsely holding himself out as a lawyer, had objected to the jury charge in his criminal case.

Celis’ appellate attorney, David Botsford, a partner in Botsford & Roark in Austin, says he is disappointed in the CCA’s opinion and says it contains a number of factual errors, "including the fact the constitutionality of the statute was not attacked."

"That was one of the grounds upon which discretionary review was sought from the court and not granted," Botsford says, adding that his client is likely to seek a rehearing.

In February 2009, a jury in Corpus Christi found Celis guilty of 14 of 22 counts of falsely holding himself out as a lawyer under Texas Penal Code §38.122. In May 2009, Judge Manuel Banales, presiding judge of the 5th Administrative Region, sentenced Celis to a 10-year probated sentence and a $10,000 fine.

On Aug. 31, 2011 the 13th Court of Appeals affirmed the trial court’s judgment.

On May 15, the CCC majority concluded Celis "failed to show error in the jury charge" and affirmed the 13th Court’s judgment.

As described in the CCA opinion, the 13th Court upheld the trial court’s rulings, "determining that the statute’s culpable mental state was limited to the intent to obtain an economic benefit; that no mistake-of-fact instruction was required; and that the trial court properly defined the term ‘foreign legal consultant."

In his appeal, Celis challenged the trial judge’s overruling three of his jury-charge complaints.

The CCA found the offense of falsely holding oneself out as a lawyer, "as it applies here, does not require an instruction as to a culpable mental state beyond the intent expressly prescribed by the plain language in that statute."

The CCA concluded that "the plain language of the false-lawyer statute requires proof of a mental state only as to the economic-benefit element and plainly dispenses with any additional culpable-mental-state requirement."

The CCA also concluded Celis was not entitled to an instruction on a mistake-of-fact defense, because "his requested instruction did not negate the culpability required for the offense." As Judge Elsa Alcala described in the majority opinion, Celis’ "alleged mistaken belief" was that he was licensed and in good standing to practice law in Mexico. However, the CCA found that, because the false-lawyer statute does not require proof of a culpable mental state as to licensing or good-standing, the mistake-of-fact instruction Celis sought "did not negate culpability required by statute."

The CCA also found the trial court’s instruction on the definition of a "foreign legal consultant" was "not an improper comment on the weight of the evidence." Celis had argued that an instruction that included foreign legal consultant as a definition of "good standing with the State Bar of Texas" under the false-lawyer statute was an "improper comment on the weight of the evidence."

"We hold that the charge properly instructed the jury as to the ‘foreign legal consultant’ criteria within the definition of ‘in good standing,’" Alcala wrote.

Ellen Stewart-Klein, an assistant Texas attorney general who represented the state before the CCA, referred questions to Jerry Strickland, a spokesman for the AG’s office. Strickland did not immediately return a telephone message. Neither did Nueces County DA Mark Skurka.

Joining Alcala in the majority opinion were Chief Judge Sharon Keller and Judges Tom Price and Michael Keasler.

Dueling Concurrences

In a concurring opinion joined by Judges Paul Womack and Cheryl Johnson, Judge Cathy Cochran disagreed with the majority on the mistake-of-fact issue. She wrote that, if Celis had offered evidence he "reasonably, but mistakenly" believed he was authorized to practice law in Texas, "he would have been entitled to a mistake-of-fact instruction because that mistaken belief would negate the kind of culpability required for the offence."

Keller wrote another concurring opinion in response to Cochran’s contention that the mistake-of-fact defense applies to elements of an offense other than the culpable mental state.

"Her position conflicts with the language of the Penal Code, contradicts legislative history, and would produce a sea-change in our law," Keller wrote in the concurring opinion joined by Price and Keasler.

Judges Lawrence Meyers and Barbara Parker Hervey did not participate.

Originally, trial judge Mark Luitjen, a visiting judge from San Antonio, sentenced Celis to a year in jail and ordered him to pay about $1.35 million in restitution. But in May 2009, Banales recused Luitjen and resentenced Celis.