Juarez v. State
Juarez v. State
Opinion of the Court
OPINION
delivered the opinion of the Court
The confession and avoidance doctrine applies to the necessity defense.
Facts
Shortly before dawn on June 10, 2007, Blair Blanford observed three men dressed in black attempting to break into vehicles in his apartment complex’s parking lot. After observing the men rifle through an unlocked car, Blanford called 911. Tyler police Officers J.H. Burge, Noe Balderas, and Steve Black were dispatched to the complex. They left their vehicles outside of the complex and walked in so that they could “sneak up” on the three men and “catch them in the act.” Officer Burge saw two of the men inside a car and the third standing beside it, with items from the car strewn on the ground. The officers then yelled, “Stop, police.” The men ran, and the officers pursued them. Officer Burge chased Juarez while Officers Balderas and Black chased the other two men.
Officer Burge was transported to the hospital. He testified that his trigger finger had been lacerated and that it took four weeks to heal. The treating physician described the wound to Burge’s left index finger as “significant” and capable of causing permanent disfigurement and protracted loss or impairment.
Juarez testified that he was with his cousin and another man on June 10th. He was the lookout while his cousin and the other man burglarized unlocked vehicles. His cousin told him that someone was peeking around the corner and looking at them, so they took off running. Juarez testified that someone yelled “Stop,” not “Stop, police”; therefore, he did not know that he was being pursued by the police. He said that someone jumped on him and slammed him to the ground while he was sitting and trying to catch his breath. He told the person to get off of him. When he heard the radio, he realized that a police officer was on top of him. His mouth was in the dirt, and the officer was pushing his head in the dirt. He was inhaling dirt and felt like he was suffocating. He got the officer’s finger in his mouth somehow and bit down to get the officer off of him. “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.... ” When the officer got up, Juarez got up with him and saw two other officers coming around the corner. He put his hands behind his back and lay down. The officers then began to hit him. On direct-examination, Juarez testified that he did not intend to bite Officer Burge and that he was just concerned for his life. On cross-examination, Juarez testified that he did not intentionally, knowingly, or recklessly bite Officer Burge’s finger. He claimed that he did it by accident; he bit down and let it go.
Juarez was charged with aggravated assault on a peace officer with a deadly weapon. Juarez pled not guilty and requested a jury trial. At the guilt-phase charge conference, Juarez requested an
Court of Appeals
Juarez appealed the trial judge’s refusal to instruct the jury on necessity.
State’s Petition for Discretionary Review
We granted the State’s petition for discretionary review to determine whether a defendant is required to admit to all of the elements of a charged offense, including the applicable culpable mental state, to be entitled to a necessity defense instruction.
The State contends that caselaw establishes that a defendant is required to admit to all elements of an offense before offering a defense like necessity. Because Juarez denied biting Officer Burge intentionally, knowingly, or recklessly, the State contends that his testimony negated only the mens rea element of the offense.
Analysis
This case involves the long-standing legal doctrine of confession and avoidance.
The confession and avoidance doctrine originated in English common law during the Fourteenth Century in relation to civil-case pleading requirements.
Under common law pleading requirements, the parties pleaded against each other until they joined issue on a question of law or fact. Each time one party pleaded, the other had an opportunity to demur, to deny the truth of his opponent’s allegations, or to introduce new matter and thus to confess and avoid the claim. In the earliest days of common law, unlike our modern era, denial and confession and avoidance were strict alternatives. The common law’s nurtu-rance of special pleas made contingent claims common. Parties could, and frequently did, confess and avoid the pleas of their opponents.21
Today, the doctrine still exists in our state civil-law jurisprudence.
The doctrine of confession and avoidance appears to have been formally introduced into our criminal-law jurisprudence in 1952, in Kimbro v. State.
In general, our application of the confession and avoidance doctrine over the past sixty years has been somewhat inconsistent. In numerous cases, we have held that a defendant who denied one element of a charged offense was not entitled to a defensive issue instruction.
After examining the history of the confession and avoidance doctrine, we will now consider its current application to the necessity defense. The defense of necessity
Conduct is justified if:
(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and
(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.34
Conduct, in turn, is defined in Penal Code Section 1.07(10) as “an act or omission and
A survey of our caselaw since the enactment of the Penal Code in 1974 establishes that we have interpreted the necessity defense,
In holding that the confession and avoidance doctrine applies to the necessity defense, we would be remiss if we failed to acknowledge that the doctrine conflicts with Section 2.03(c)’s general rule governing when a defensive instruction is required. Section 2.03(c) states; “The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.”
The confession and avoidance doctrine’s requirement that a defendant admit to the conduct conflicts with Section 2.03(c)’s general rule that a defense is supported by the evidence if there is evidence from any source on each element of the defense. However, this conflict does not disturb our determination that Section 9.22 embraces the confession and avoidance doctrine. When interpreting statutes that are in pari materia and construed together, both are given effect with the special governing over the general in the event of a conflict.
Turning to case before us, we conclude that Juarez was entitled to a necessity instruction under the facts here. This case is distinguishable from our previous decisions holding that a defendant’s denial of an element of the prohibited conduct constitutes a challenge to the elements of the charged offense (or conduct) and therefore does not require a necessity defense instruction.
Next, as discussed above, we have rendered two different interpretations of the confession and avoidance doctrine’s requirements. Historically in necessity defense cases, we have said that a defendant must admit to the conduct.
On a final note, it is necessary to explain how our recent decision in Gilbert v. State does not render the issue in this case moot. In Gilbert, we said that the necessity defense “turns on a personal choice made by the actor” and that it does not apply when an individual’s decision to act is coerced by another.
Conclusion
The doctrine of confession and avoidance applies to the Penal Code’s necessity defense. As a result, a defendant cannot flatly deny the charged conduct — the act or omission and the applicable culpable mental state. Because it can reasonably be inferred from Juarez’s testimony that he intentionally, knowingly, or recklessly bit Officer Burge, the trial judge erred in refusing Juarez’s request for a necessity instruction. We affirm the court of appeals’s judgment because it found that the trial judge’s error was harmful
HOLCOMB, J., filed a concurring opinion in which KELLER, P.J., PRICE and JOHNSON, JJ., joined.
. See Tex. Penal Code Ann § 9.22 (Vernon 2003).
. See Tex. Penal Code Ann. § 1.07(10) (Vernon 2003).
. Juarez v. State, No. 12-08-00009-CR, 2009 WL 768595, at *4-5, 2009 Tex.App. LEXIS 3762, at *11-14 (Tex.App.-Tyler Mar. 25, 2009) (not designated for publication).
. See Tex. Penal Code Ann. §§ 2.03, 9.02, 9.22 (Vernon 2003).
. 2009 WL 768595, at *1, 2009 Tex.App. LEXIS 3762, at *1.
. Id. at *2-3, 2009 Tex.App. LEXIS 3762, at *7.
. Id. at *4, 2009 Tex.App. LEXIS 3762, at *10.
. Id. at *4, 2009 Tex.App. LEXIS 3762, at *11.
. Id. at *6, 2009 Tex.App. LEXIS 3762, at *17-18.
. Id. at *6, 2009 Tex.App. LEXIS 3762, at *18.
. Shaw v. State, 243 S.W.3d 647, 659 (Tex.Crim.App. 2007); Kimbro v. State, 157 Tex.Crim. 438, 440, 249 S.W.2d 919 (Tex.Crim.App. 1952); see e.g., Canon v. State, 59 Tex.Crim. 398, 128 S.W. 141, 143 (Tex.Crim.App. 1910) (noting that the defendant’s confession to police was in the nature of a plea of confession and avoidance because the defendant asserted self-defense).
. Young v. State, 991 S.W.2d 835, 838 (Tex.Crim.App. 1999).
.Shaw, 243 S.W.3d at 659.
. Young, 991 S.W.2d at 838.
. Ex parte Nailor, 149 S.W.3d 125, 132-34 (Tex.Crim.App. 2004).
. Shaw, 243 S.W.3d at 659.
. Granger v. State, 3 S.W.3d 36, 41 (Tex.Crim.App. 1999) (the mistake of fact, by its terms, negates the culpable mental state); Willis v. State, 790 S.W.2d 307, 314 (Tex.Crim.App. 1990) (the good faith purchase defense may, by its terms, negate the culpable mental state); Jackson v. State, 646 S.W.2d 225, 227 (Tex.Crim.App. 1983) (the mistake of fact defense, by its terms, negates the culpable mental state).
. Granger, 3 S.W.3d at 41; Jackson, 646 S.W.2d at 227.
. Stephen G. Gilíes, Inevitable Accident in Classical English Tort Law, 43 Emory L.J. 575, 617-18 (1994).
. Id.
. Yuval Sinai, The Doctrine of Affirmative Defenses in Civil Cases — Between Common Law and Jewish Law, 34 N.C.J. Int’l L. & Comm. Reg. Ill, 117-18 (2008).
. Tex.R. Civ. P. 94 ("In pleading to a preceding pleading, a party shall set forth affirmatively ... any other matter constituting an avoidance or affirmative defense”); see e.g., Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 798 (Tex. 2008); Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517-18 (Tex. 1988).
. 157 Tex.Crim. at 440, 249 S.W.2d 919; see also Fitzgerald v. State, 782 S.W.2d 876, 884 (Tex.Crim.App. 1990) ("Necessity is a traditional defense at common law, and is now included in most revised penal codes.”).
. Kimbro, 157 Tex.Crim. at 440, 249 S.W.2d 919.
. Id. (citing Carter v. The Eighth Ward Bank, 33 Misc. 128, 67 N.Y.S. 300 (N.Y.S.Ct. 1900)) (emphasis in original).
. Shaw, 243 S.W.3d at 659; Ex parte Nailor, 149 S.W.3d at 132-33; Giesberg v. State, 984 S.W.2d 245, 249-50 (Tex.Crim.App. 1998); Sanders v. State, 707 S.W.2d 78, 81 (Tex.Crim.App. 1986); Hall v. State, 402 S.W.2d 752, 754-55 (Tex.Crim.App. 1966); DeHam v. State, 389 S.W.2d 955, 956 (Tex.Crim.App. 1965); Tapley v. State, 158 Tex.Crim. 495, 256 S.W.2d 583, 586 (Tex.Crim.App. 1953); Kimbro, 157 Tex.Crim. at 440, 249 S.W.2d 919; Royal v. State, 154 Tex.Crim. 567, 228 S.W.2d 162, 163 (Tex.Crim.App. 1950); Sharp v. State, 150 Tex.Crim. 169, 199 S.W.2d 159, 160 (Tex.Crim.App. 1947) (on reh’g).
. Shaw, 243 S.W.3d at 659; Ex parte Nailor, 149 S.W.3d at 132-33; Giesberg, 984 S.W.2d at 249-50; Sanders, 707 S.W.2d at 81; Hall, 402 S.W.2d at 754-55; DeHam, 389 S.W.2d at 956; Tapley, 256 S.W.2d at 586; Kimbro, 157 Tex.Crim. at 440, 249 S.W.2d 919; Royal, 228 S.W.2d at 163; Sharp, 199 S.W.2d at 160.
. Id.
. See e.g., Ex parte Nailor, 149 S.W.3d at 133; Young, 991 S.W.2d at 838; Sanders, 707 S.W.2d at 81; DeHam, 389 S.W.2d at 956.
. Woodfox v. State, 742 S.W.2d 408, 410 (Tex.Crim.App. 1987); Smith v. State, 676 S.W.2d 584, 585-87 (Tex.Crim.App. 1984); Torres v. State, 585 S.W.2d 746, 748-50 (Tex.Crim.App. 1979).
. 775 S.W.2d 645, 647 (Tex.Crim.App. 1989).
. Tex. Penal Code Ann. § 9.02 (Vernon 2003) ("It is a defense to prosecution that the conduct in question is justified under" Chapter 9 of the Texas Penal Code.).
. Tex. Penal Code Ann. § 9.22.
. Tex. Penal Code Ann. § 1.07(10).
. Added by Acts 1973, 63rd Leg., ch. 399, § 1, effective Jan. 1, 1974.
. Ex parte Nailor, 149 S.W.3d at 133; Bowen v. State, 162 S.W.3d 226, 230 (Tex.Crim.App. 2005) (observing that the defendant's admission to the conduct “satisfied the judicially imposed prerequisite to request a necessity instruction”); Young, 991 S.W.2d at 839; Vasquez v. State, 830 S.W.2d 948, 950-51 (Tex.Crim.App. 1992) (observing that the defendant admitted to the conduct and that his testimony raised the necessity defense); Thomas v. State, 678 S.W.2d 82, 85 (Tex.Crim.App. 1984) (recognizing that the confession and avoidance doctrine applied to one of the State’s theories of guilt because of the defendant’s denial of the proscribed mental state); see also Gilbert v. State, No. PD-1645-08, 2010 WL 454966, at *5, 2010 Tex.Crim.App. Unpub. LEXIS 99, at *14 (Tex.Crim.App. Feb. 10, 2010) (not designated for publication) (observing that the defendant’s testimony sufficiently admitted to the conduct).
. Ex parte Nailor, 149 S.W.3d at 133; Bowen, 162 S.W.3d at 230; Young, 991 S.W.2d at 839; Vasquez, 830 S.W.2d at 950-51; Thomas, 678 S.W.2d at 85; Gilbert, No. PD-1645-08, 2010 WL 454966 at *3-4, 2010 Tex.Crim.App. Unpub. LEXIS 99 at *9.
. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, effective Sept. 1, 1994.
. See State v. Colyandro, 233 S.W.3d 870, 878 (Tex.Crim.App. 2007).
. See id. (“ ‘Certainly when a legislature reenacts a law using the same terms that have been judicially construed in a particular manner, one may reasonably infer that the legislature approved of the judicial interpretation. There is considerably less force (though still some) to the argument that if a legislature does not agree with the judicial interpretation of the words or meaning of a statute, the legislature would surely have immediately changed the statute.’ ") (emphasis in original) (citing State v. Medrano, 67 S.W.3d 892, 902 (Tex.Crim.App. 2002)).
. Tex. Penal Code Ann. § 2.03(c) (Vernon 2003); see also Tex. Penal Code Ann. § 2.04(c) (Vernon 2003).
. Shaw, 243 S.W.3d at 657-58.
. Id.; Booth v. State, 679 S.W.2d 498, 500 (Tex.Crim.App. 1984).
. Booth, 679 S.W.2d at 500.
. Alejos v. State, 555 S.W.2d 444, 449-50 (Tex.Crim.App. 1977) (on reh'g).
. See e.g., Shaw, 243 S.W.3d at 659; Ex parte Nailor, 149 S.W.3d at 132-33.
. Moore v. State, 969 S.W.2d 4, 10 (Tex.Crim.App. 1998) ("Mental states are almost always inferred from acts and words.”); see e.g., Hardesty v. State, 656 S.W.2d 73, 78 (Tex.Crim.App. 1983) (a factfinder may draw an inference of guilt from the circumstance of flight); Jones v. State, 481 S.W.2d 900, 902 (Tex.Crim.App. 1972) (same).
. See Granger, 3 S.W.3d at 39 (whether a defendant’s mistaken belief was reasonable for the mistake of fact defense is a question for the jury, not the trial judge); Hayes v. State, 728 S.W.2d 804, 808 (Tex.Crim.App. 1987) (opinion on reh’g) (whether a defendant’s belief was reasonable for a deadly force instruction is a fact-issue for the jury, not the trial judge).
. Ex parte Nailor, 149 S.W.3d at 133; Bowen, 162 S.W.3d at 230; Young, 991 S.W.2d at 839; Vasquez, 830 S.W.2d at 950-51; Thomas, 678 S.W.2d at 85.
. Ex parte Nailor, 149 S.W.3d at 133; Bowen, 162 S.W.3d at 230; Young, 991 S.W.2d at 839; Vasquez, 830 S.W.2d at 950-51; Thomas, 678 S.W.2d at 85.
. Shaw, 243 S.W.3d at 659.
. Gilbert, 2010 WL 454966, at *5, 2010 Tex.Crim.App. Unpub. LEXIS 99, at *13-14.
. Juarez, 2009 WL 768595, at *5-6, 2009 Tex.App. LEXIS 3762, at *16-18.
Concurring Opinion
filed a concurring opinion, in which KELLER, P.J., and PRICE and JOHNSON, JJ., joined.
I join the Court’s opinion but write separately in order to explain in more detail why Juarez’s testimony raised the necessity defense.
At the guilt stage of his trial, Juarez took the stand in his defense and testified in relevant part as follows:
DEFENSE COUNSEL: And after you got between the apartment complex building [sic], what happened next?
JUAREZ: I ducked down beside a bush in the darkness so that — because I thought maybe I wouldn’t be seen. And I was sitting there trying to get my breath back, because I had ran out of breath about that time from running from the person, whoever it was.
And I was sitting there, and my cousin had already went the other way. At*407 that time, I didn’t know where any of them were at. I was sitting there trying to gain my breath back, and then a guy comes around the corner, flashes the light on me.
I jump, I get up, I stand up to run, and I kind of stumbled when I take off again, because I was out of breath. And then somebody jumped on my back, and they put their arms around me like this (demonstrating) and slammed me — well, they started trying to slam me to the ground, and then finally they did slam me to the ground.
And when I got slammed to the ground, I was just — I couldn’t breathe, because I was out of breath. And I was telling him to get off of me. And then I heard a radio, and I was trying to tell him to get off of me because I couldn’t breathe. I felt like I was going to suffocate. I was in fear of my life.
After that, I figured out it was an officer on top of me, and he was on top of me with his knee of whatever in my back, and my mouth was facing towards the dirt. And he was telling me to stop resisting, and then his hand was above my head around in this area (indicating), and he was pushing on my head and my mouth.
I was breathing in dirt, so I felt like I couldn’t breathe. And from that point on, I was starting to feel real lightheaded and dizzy, like I was just going to suffocate or pass out or something.
And somehow the officer or the guy— well, I found out he was an officer after I heard the radio, and he told me — after he got on top of me, his hand — his finger got in front of my face from pushing on my face around my check (sic).
I got his finger in my mouth somehow, and I just bit down. to get him off of m.e, because 1 felt like I was going to die if he didn’t get off of my body the way I was laying down on my chest.
DEFENSE COUNSEL: Okay. Now, what happened next in terms of your situation with this police officer?
JUAREZ: When I bit him, he got up, and I let go of his finger. And I stood up, and at that time, two other officers came around the corner. And I looked to my right and I seen them, and when I seen them, I knew I was in trouble, so I didn’t try anything else.
* * ⅜
DEFENSE COUNSEL: Now, when you went out there that night, did you intend to bite the police officer?
JUAREZ: No, I didn’t. I was just fearing of my life, so I — I was ivorried about my life, as well as I know who the officer was, so — I mean, no, I didn’t intend to do it, no, ma’am.
* * *
THE STATE: You couldn’t breathe because of the situation that you put yourself into, right? Right?
JUAREZ: Yeah, I put myself in that situation, but I didn’t mean — I didn’t mean to bite him.
THE STATE: You accidentally bit another human’s finger?
JUAREZ: That’s not what I’m saying.
THE STATE: Okay. And you’re asking for mercy [from the jury] because you know you did it?
JUAREZ: I couldn’t breathe. I was in fear for my life as much as he was in fear for his.
* * *
THE STATE: Not only are you saying — just so I’m clear, not only are you saying that you had to do what you did, but you didn’t even act intentionally, knowingly, or recklessly when you bit the finger of Officer Burge, right?
*408 JUAREZ: Would you ask the question again, please?
THE STATE: When you bit Officer Burge’s finger, you did that intentionally. You did — you completed what you set out to do. You would agree with me, wouldn’t you?
JUAREZ: I didn’t set out to bite his finger.
* ⅜ *
DEFENSE COUNSEL: Mr. Juarez, in terms of the biting of the police officer’s finger, is it your position that you bit his finger because you couldn’t breathe?
JUAREZ: Yes, it is.
DEFENSE COUNSEL: Now, in terms of intending to bite his finger, did you that day set out to bite his finger?
JUAREZ: No, I didn’t.
⅜ * *
DEFENSE COUNSEL: So it’s not that you’re saying that you didn’t bite his finger; you just didn’t intentionally bite his finger; is that correct?
JUAREZ: Correct.
DEFENSE COUNSEL: Counsel: Pass the witness.
THE STATE: How else do you bite somebody’s finger?
JUAREZ: I don’t know.
THE STATE: Accidentally?
JUAREZ: I don’t know.
THE STATE: I mean, was it your desire to bite his finger?
JUAREZ: Nope.
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THE STATE: Did you act — Ms. Johnston [defense counsel] asked you this: Did you act intentionally?
JUAREZ: No.
THE STATE: Did you act knowingly?
JUAREZ: No.
THE STATE: Did you act recklessly?
* * ⅜
JUAREZ: No.
* * *
THE STATE: [It’s your contention] that this was an accident, right?
JUAREZ: Yes, it was.
THE STATE: And how long was the finger in your mouth?
* * *
JUAREZ: I just bit down, and then I let go.
THE STATE: Immediately?
JUAREZ: Yeah. I bit down hard, and then I let go.
Texas Penal Code § 9.02 provides that “[i]t is a defense to prosecution that the conduct in question is justified under this chapter.” Texas Penal Code § 9.22, in turn, provides in relevant part that “[conduct [that is otherwise criminal] is justified if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm [and] (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct.”
We have held that, in general, a defendant is entitled to an instruction on a defense if that defense is raised by the evidence. Shaw v. State, 243 S.W.3d 647, 658 (Tex.Crim.App. 2007). A defense is “raised by the evidence” if there is some evidence, from any source, on each element of the defense that would support a rational inference that that element is true. Id. at 657-58. We have also held that in the particular case of the necessity defense, which is a confession-and-avoidance type of defense, “a defensive instruction is only appropriate when the defendant’s defensive evidence essentially
Applying these legal principles to the instant case, it is clear that the court of appeals was correct in concluding that the trial court erred in denying Juarez’s requested jury instruction on the necessity defense. In Juarez’s testimony, recounted above, he essentially admitted to every element of the offense charged, including the culpable mental state. From that testimony, a jury could reasonably infer that Juarez intentionally bit Burge’s finger because he reasonably believed that doing so was immediately necessary to avoid imminent suffocation. Juarez testified that he “bit down [on Burge’s finger] to get him off of me, because I felt like I was going to die if he didn’t get off of my body,” that he was in fear for his life, that it was his “position” that he bit Burge’s finger because he could not breathe, and that he was not saying that his biting of Burge’s finger was an accident. Although it is true that Juarez also testified that his biting of Burge’s finger was an accident and that it was not done intentionally, knowingly, or recklessly, a jury could reasonably discount that part of Juarez’s testimony as simply being his lay attempt to explain that he had not desired to bite Burge and had not intended to harm him.
Reference
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