Comment

The “confession and avoidance doctrine” applies to at least some defenses under Texas law, as the court of criminal appeals reaffirmed in Juarez v. State, 308 S.W.3d 398 (Tex. Crim. App. 2010), despite the lack of any specific statutory basis for it.

The court of criminal appeals reaffirmed the barest outlines of the doctrine in Rodriguez v. State, 629 S.W.3d 229 (Tex. Crim. App. 2021). Although the term confession and avoidance and its traditional formulation indicate that an admission to the elements of the offense is required before a defendant is entitled to a jury instruction on a defense to which the doctrine applies, Rodriguez suggested that far less will suffice. Rodriguez, 629 S.W.3d at 231. Rodriguez, who was on trial for murder, expressly denied having the intent to kill anyone and asserted that the gun “went off” by accident when someone pulled on his arm. Rodriguez, 629 S.W.3d at 233–34. But because his testimony could otherwise imply an intent to kill and the jury could have still found his acts voluntary, his express denials did not “automatically foreclose a justification defense.” Rodriguez, 629 S.W.3d at 232. Similarly in Maciel v. State, the confession and avoidance defense of necessity was raised in a DWI trial despite a defendant’s denial of the act of operating, because a jury could still infer that element from her testimony about sitting in the driver’s seat of a running vehicle and trying to move it. Maciel v. State, 631 S.W.3d 720, 725 (Tex. Crim. App. 2021). After Rodriguez and Maciel, the evidence need only support an inference of the required act and any culpable mental state. An express denial of those elements will not prevent a defendant from being entitled to a confession-and-avoidance defense unless that is the only evidence or possible inference from the evidence. Texas Penal Code section 9.02 may be the statutory basis for this minimum threshold requirement. That section provides, “It is a defense to prosecution that the conduct in question is justified under this chapter.” Rodriguez cites that section and explains that, “[l]ogically, one cannot both justify and deny conduct.” Rodriguez, 629 S.W.3d at 231. Given Rodriguez’s holding, however, it may be more precisely expressed: one cannot justify conduct if the only thing he is doing is denying it.

It remains undecided whether confession and avoidance required that the defendant personally—perhaps by in-court testimony—admit (or not deny) the act and culpable mental state. Juarez left open that the doctrine might be satisfied if “a defendant’s defensive evidence . . . admit[s] to the conduct.” Juarez, 308 S.W.3d at 406. In Maciel, the court reverted to the phrase “defensive evidence” and recounted the evidence from both sides, although it may have only relied on the defendant’s own statements to infer the elements of the offense. Maciel, 631 S.W.3d at 724–25.

Another part of the discussion in Juarez suggested that confession and avoidance might be satisfied negatively, that is, by a demonstration that the defendant did not “flatly deny the charged conduct—the act or omission and the applicable culpable mental state.” Juarez, 308 S.W.3d at 406.

Juarez involved a prosecution for aggravated assault on a peace officer by biting the officer. The defendant had in conclusory terms and in response to leading questions denied that he bit the officer intentionally, knowingly, or recklessly. Nevertheless, the court found the defendant entitled to an instruction on necessity:

Juarez, 308 S.W.3d at 405 (footnotes omitted). After Rodriguez and Maciel, it is clear that a summary denial of the required culpable mental state does not preclude an instruction if the defendant’s testimony nevertheless would permit a reasonable inference that he in fact had the required culpable mental state.

Application of confession and avoidance to specific defenses is addressed in the context of those defenses in this chapter.