Chapter 9
Justification Defenses
9.1 Necessity Generally—Need to “Admit” Offense
Confession and Avoidance.
Necessity is a confession-and-avoidance defense requiring the defendant to admit to his otherwise illegal conduct. To be entitled to a defensive instruction for necessity, a defendant must put on evidence that essentially admits to every element of the offense, including the culpable mental state. In other words, a defendant cannot both invoke necessity and flatly deny the charged conduct.
Maciel v. State, 631 S.W.3d 720, 723 (Tex. Crim. App. 2021) (internal quotations omitted). However, despite what its name suggests, the judicially-created requirement of “confession and avoidance”—which applies to necessity and self-defense—can be satisfied without a defendant’s express admission to the elements of the offense and even alongside resolute denial of those elements if the defensive evidence and inferences therefrom would be legally sufficient to convict the defendant of the offense. See Rodriguez v. State, 629 S.W.3d 229, 235 (Tex. Crim. App. 2021). While the defense requires evidence from which jurors can infer the defendant committed the otherwise illegal conduct, the court’s jurisprudence regarding the confession-and-avoidance doctrine “does not require an explicit admission from the defendant that she committed the crime.” Maciel, 631 S.W.3d at 725; See also Rodriguez, 629 S.W.3d at 235 (defendant was entitled to instruction on necessity as well as self-defense—another confession-and-avoidance defense—even though he denied intentionally firing the gun, because he also admitted gripping the gun tightly with his finger on the trigger and intent could be inferred from this admission).
The confession and avoidance doctrine was applied to necessity in Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010). In Juarez, a prosecution for aggravated assault on a peace officer by biting the officer, the court found the defendant entitled to an instruction on necessity. The defendant testified that the officer was on top of him, pushing his head in the dirt. Juarez recounted, “I got his finger in my mouth somehow, and I just bit down to get him off of me, because I felt like I was going to die . . . .” Juarez, 308 S.W.3d at 400. He explained, “I didn’t set out to bite his finger.” Juarez, 308 S.W.3d at 408 (Holcomb, J., concurring). Despite this, 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 explained:
Juarez’s mental state—that the biting was done either intentionally, knowingly, or recklessly—could have reasonably been inferred from his testimony about the circumstances surrounding his conduct. Thus, the confession and avoidance doctrine was satisfied because Juarez had admitted to both the act and the requisite mental state.
Juarez, 308 S.W.3d at 405 (footnote omitted). A summary denial of the required culpable mental state apparently 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.
In Maciel, the court of criminal appeals held that a DWI defendant was entitled to an instruction on the defense of necessity, even though she stated that she did not think that she was operating the vehicle. The defendant admitted that she was intoxicated, and she claimed that, after the driver became ill, she was attempting to move the vehicle out from the middle of the road to a nearby parking lot out of a concern for the safety of her fellow passengers. Maciel, 631 S.W.3d 720. The defendant’s testimony and her statements to the officer at the scene essentially admitted to every element of the charged offense of DWI. She admitted to being intoxicated, admitted to being behind the wheel of her vehicle with the engine running, admitted that she got into the driver’s seat to try to move the car, and admitted that she was trying to get the car safely to a parking lot. Maciel, 631 S.W.3d at 725. Because a rational jury could have found from this evidence that the defendant operated a motor vehicle while intoxicated despite her rejection of the conclusion that she was “operating,” the defense was raised. As long as this evidentiary threshold was met, the “confession and avoidance” doctrine was satisfied even though the extent of any such confession was merely that if she was operating a motor vehicle, it was only for the purpose of necessity. Maciel, 631 S.W.3d at 725.
Confession and avoidance in the necessity context was also addressed in two pre-Juarez decisions by the court. In Bowen, 162 S.W.3d 226, the defendant was charged with resisting arrest. Bowen testified and admitted struggling with the arresting officers. She disputed some of the details of the officers’ description of her actions. Further, “She also contested that the kicking was intended to prevent Hamilton from taking her into custody. She alleged that the kicking was in response to the pain of being lifted in this manner and attempting to regain her balance.” Bowen, 162 S.W.3d at 227. The court of appeals had held that she was not barred from relying on necessity by her testimony:
While the cases generally state that a defendant must admit committing the “offense,” defendants have been held entitled to submission of a justification defense such as necessity where they admit the conduct alleged even though they deny an element of the offense such as intent. . . .
. . . .
We agree with Appellant that she sufficiently met the judicially imposed requirement of admitting commission of the alleged offense of resisting arrest by admitting the alleged act of kicking the officer even though she denied her intent to resist arrest by that conduct.
Bowen v. State, 117 S.W.3d 291, 295–97 (Tex. App.—Fort Worth 2003). It held necessity inapplicable on other grounds.
On discretionary review, the court of criminal appeals reversed the intermediate court’s holding that necessity was unavailable. It approved the intermediate court’s analysis of the effect of the defendant’s trial testimony as sufficiently admitting the charged offense. Bowen, 162 S.W.3d at 230.
Young v. State, 991 S.W.2d 835 (Tex. Crim. App. 1999), reached the opposite result. The state’s evidence at trial for attempted murder was that the defendant, in a truck with the victims, threatened to kill them. He then “put his foot on the gas pedal and grabbed the steering wheel, causing the truck to careen off the road and crash into a set of gasoline pumps at a convenience store.” Young, 991 S.W.2d at 836. The defendant testified and denied threatening to kill the victims. He also denied putting his foot on the gas pedal and grabbing the steering wheel. He testified he reached for the door handle to exit the truck, but one of the victims grabbed his arm, hitting the steering wheel in the process and causing the truck to veer off the road. At issue was whether defense counsel was deficient for failing to request a jury instruction on necessity. Young, 991 S.W.2d at 837. Finding counsel deficient, the court of appeals reasoned in part:
The State argues that Young was not entitled to a defense of necessity because he did not admit to the offense. . . . Although there is a conflict as to specifically what happened at the time of the wreck, Young does not deny that his efforts to escape the vehicle caused the wreck, but states a different version of how the wreck happened. Both versions of the events indicate that Young’s attempt to escape from the vehicle was the act in question. His variation in testimony from his accuser does not deny his causation of the collision that led to the injuries, and is not such a denial of the occurrence that would have negated the jury having the opportunity to consider an instruction on necessity.
Young v. State, 957 S.W.2d 923, 927 (Tex. App.—Texarkana 1997). On discretionary review, the court of criminal appeals disagreed:
To raise necessity, Appellant must admit he committed the offense and then offer necessity as a justification. Here, Appellant did not admit to attempted murder, albeit one that was justified by the defense of necessity. Appellant argued he did not commit the offense because he did not have the requisite intent and he did not perform the actions the State alleged. Appellant was therefore not entitled to a jury instruction on the defense of necessity.
Young, 991 S.W.2d at 839.
Young suggests that an instruction on necessity is not permitted if the defendant by testimony denies the conduct constituting the crime or unequivocally denies the required culpable mental state. More recent case law, however, indicates that the clarity, or even existence, of denial is not the measure. Regardless of how explicitly the defendant denies committing the offense or disclaims one or more elements, this denial will not “automatically foreclose a justification defense.” Rodriguez, 629 S.W.3d at 232. What matters is whether, despite a denial, the defensive evidence (or inferences therefrom) still would subject a defendant to conviction for the charged offense. As the court explained in Rodriguez, “[i]f such testimony will support a conviction, then it also satisfies the confession-and-avoidance requirement” to admit the act and accompanying mental state. Rodriguez, 629 S.W.3d at 235. While couched in terms of what the defendant’s testimony showed (because those were the facts of that case), there might be other sources of the legally sufficient evidence. Juarez explains that confession and avoidance’s “admission requirement” trumps the general rule that evidence raising a defense can come from any source, including the state, but leaves open whether it requires a defendant’s own admission. Juarez, 308 S.W.3d at 404–06 (contrasting Tex. Penal Code § 2.03(c) and confession-and-avoidance doctrine). Maciel similarly phrases the confession-and-avoidance rule in terms of what the “defensive evidence” showed. Maciel, 631 S.W.3d at 725–26. But necessity, like self-defense, requires one element that must originate one way or another from the defendant: proof of the defendant’s subjective belief that his conduct was immediately necessary. See Tex. Penal Code § 9.22(1). Another person could provide the testimony, but that evidence still must be of “the defendant’s acts and words at the time of the offense” indicating his subjective belief. See Lozano v. State, 636 S.W.3d 25, 33 (Tex. Crim. App. 2021).
Comment
The defense of necessity raises a question common to many defenses—the extent to which a defendant’s right to an instruction depends on the defendant’s having in some sense admitted the charged offense.
This question is possibly a part of, or related to, the question of whether a defendant’s positions regarding the jury instructions must be internally consistent.
Inconsistent Defensive Positions. In Bowen v. State, 162 S.W.3d 226 (Tex. Crim. App. 2005), the court of criminal appeals apparently disavowed any general rule that a defendant’s right to an instruction on a defensive matter is defeated by the fact that the defense position on that matter is inconsistent with the defense’s position on other defensive matters on which the jury will be instructed. The court explained:
We have recognized the independence of separate defenses by holding that a defendant is entitled to the submission of every defensive issue raised by the evidence, even if the defense may be inconsistent with other defenses. We reaffirm this principle by holding self-defense’s statutorily imposed restrictions do not foreclose necessity’s availability.
Bowen, 162 S.W.3d at 229–30 (footnote omitted).
Therefore, if the evidence raises several possible defenses, the trial court cannot require the defense to in some sense “elect” only one position on which the court will instruct the jury.
Bowen might be at odds with any requirement that a defendant in some sense “admit” the charged offense as a condition of seeking an instruction on a defensive matter.