By Jason Bennyhoff
Assistant District Attorney in Fort Bend County
We prosecutors are loathe to agree to the inclusion of defensive instructions in jury charges where we do not feel that they are justified by the facts. Nowhere is our righteous indignation more aroused than when a defendant raises a confession and avoidance defense but has not confessed his guilt to the offense. Naturally, our first instinct is to fight such a defensive instruction in the jury charge.
This instinct, while logical, is becoming less appropriate because the Texas Court of Criminal Appeals is taking a more expansive view of what constitutes a sufficient “confession” to satisfy that prong of the confession and avoidance doctrine. This article will review that doctrine and the continuing evolution, and one might say, erosion of the confession prong of the doctrine.
What is the confession and avoidance doctrine?
The doctrine applies to “justification”-type defenses wherein a defendant must confess his guilt (this is the confession part) and then argue that he should nonetheless not be convicted because his conduct was justified in some respect (this is the avoidance—for example, “I acted out of necessity”). Justification defenses include necessity, self-defense, and the Good Samaritan defense.[1] The doctrine does not apply to defensive issues wherein the defendant simply seeks to negate an element of the offense.[2]
The Court of Criminal Appeals has defined the confession prong of the confession and avoidance doctrine in two ways:
1) the defendant must admit all of the elements of the charged offense; or
2) when “the defendant’s defensive evidence essentially admits to every element of the offense, including the culpable mental state.”[3]
However, as we shall see below, what constitutes an admission has been expanded beyond the bare dictionary definition of that word, and the source of the evidence constituting an admission is now perhaps irrelevant.
The confession prong
Though it is beyond the scope of this article, the confession and avoidance doctrine has a long history in English and American jurisprudence.[4] For our purposes, suffice it to say the doctrine has evolved and expanded beyond its limited origins. While it was originally entirely separate and distinct from scenarios in which a defendant denied an element or elements of an offense, it has expanded to encompass some such scenarios, and in point of fact, as the Court of Criminal Appeals has succinctly put it, the Texas courts’ application of the doctrine has been “somewhat inconsistent.”[5]
Stemming from its origins as a discrete doctrine with limited application, the Court of Criminal Appeals long held that a defendant who denied any element of a charged offense was not entitled to a defensive instruction on a confession and avoidance defense. However, even in those days, as the Court has since acknowledged, it sometimes simply “ignored the confession and avoidance doctrine altogether.”[6]
Recognizing its own inconsistent application of the confession prong, the Court sought to bring some clarity to the issue in Juarez v. State.[7] In Juarez, the appellant was charged with aggravated assault on a peace officer for biting the officer on the hand. Juarez admitted biting the officer, and he “both admitted to and denied the culpable mental state …” when he testified that he accidentally bit the officer because he thought he was suffocating when the officer was on top of him.[8] Juarez requested a necessity instruction, which the trial court denied because the defendant had denied the culpable mental state.
The Tyler Court of Appeals held that the trial court erred in holding that Juarez was not entitled to a necessity instruction because he had not admitted to every element of the offense; it also held that a defendant need not admit every element of the offense, but that a defendant can be entitled to a justification defense if he “sufficiently admits conduct underlying the offense.”[9]
The Court of Criminal Appeals held that the court of appeals was incorrect when it concluded that Juarez’s admission to the act (of biting the officer) was enough to satisfy the confession and avoidance doctrine: “As our decisions make clear, the doctrine requires an admission to the conduct, which includes both the act or omission and the requisite mental state.” [10] The Court went on, however, to affirm the Tyler Court’s holding that the trial court erred by refusing to include the necessity instruction:
[W]e 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. We made this assertion in cases in which the defendant testified and explicitly denied the conduct, either by denying the act or the culpable mental state or both. But in our most recent discussion of the doctrine in Shaw v. State, we expanded the admission requirement and said that a defendant’s defensive evidence must admit to the conduct. Whether the confession and avoidance doctrine requires the former or the latter is not necessary to our resolution of this case because Juarez testified and a factfinder could reasonably infer from his testimony that he bit Officer Burge intentionally, knowingly, or recklessly. We will leave it for a future necessity defense case to decide whether the confession and avoidance doctrine requires a defendant’s own admission.
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.[11]
Where does Juarez leave us?
The Court of Criminal Appeals’ holding in Juarez can fairly be said to have clarified that if a defendant’s own admission to the elements of the offense appears in the record, that admission will satisfy the confession prong even if it is equivocal; the jury need only be able to reasonably infer the admission.
However, the Court’s opinion in Juarez did not answer all of the questions that had been raised about the expansion of the confession prong. Juarez would lead one to wonder just how equivocal a defendant’s admission could be—could he equivocate about the commission of the offense entirely, or perhaps about only one element? Could a defendant equivocate only about the culpable mental state rather than the actus reus of the offense? The Court explicitly left unanswered the question of whether a defendant’s own admission was required to satisfy the confession prong or whether the admission could come from “the defendant’s defensive evidence.”[12]
After Juarez
Since 2020, the Court of Criminal Appeals has touched on the confession prong of the confession and avoidance doctrine in several cases of interest. The first is Ebikam v. State,[13] an unpublished opinion; although its precedential value is thus removed, it is rather fascinating because it again seeks to clarify the questions left open by Juarez and gives us some insight into the thinking of the Court’s judges, which was rather splintered and wide-ranging on these questions.
In Ebikam, the five-judge majority opinion (in which three of the judges joined but wrote a separate concurring opinion) recognized that it needed to address “an apparent conflict in our cases about whether [the confession and avoidance doctrine] requires an admission of every element of the charged offense or something less than that.”[14] The Court clarified the degree of admission necessary thusly:
A flat denial of the conduct in question will foreclose an instruction on a justification defense … [b]ut an inconsistent or implicit concession of the conduct will meet the requirement. Consequently, although one cannot justify an offense that he insists he did not commit, he may equivocate on whether he committed the conduct in question and still get a justification instruction.”[15]
The Court applied that reasoning in Ebikam by holding that the defendant was not required to confess the manner and means of the assault to be entitled to a self-defense instruction, but it remanded the case to the court of appeals to determine whether the defendant’s defensive theory foreclosed his commission of the assault or justified it under self-defense. At trial, the defendant conceded only to trying to close the door on the complainant when the complainant tried to enter their apartment. This majority holding again left open the ultimate question: Was the defendant’s evidence enough of a concession to justify the inclusion of a self-defense instruction?
This opinion is further complicated by the fact that three of the judges who joined in the majority also wrote a concurring opinion saying that they did not believe the defendant had carried his burden to establish his entitlement to a self-defense instruction.[16] Ebikam is also of note because the dissent, in which two judges joined, argued that a defendant should be able to “flatly deny” the charged conduct and still get a defensive instruction if it is raised by the evidence in any fashion.[17]
On remand, the San Antonio Court of Appeals held that the defendant’s partial concession was enough to entitle him to a self-defense instruction and that he was harmed by the lack of that instruction.[18]
In sum, Ebikam seems to leave the larger questions of Juarez unanswered, but again indicates a Court of Criminal Appeals seemingly willing to take an expansive view of the confession prong of the doctrine.
In Rodriguez, a 2021 published opinion, the Court of Criminal Appeals appeared to come together to resolve the expansion of the confession prong.[19] In Rodriguez, the Court again noted the rather confused nature of its prior confession jurisprudence when it wrote that “[t]he traditional confession-and-avoidance formulation is that the defendant must admit to ‘all elements of the charged offense.’ … However, that formulation has been rephrased and even seemingly undermined.”[20] The Court then recited its prior jurisprudence on the various scenarios in which it had held that a defendant had sufficiently confessed without expressly admitting to all of the elements of the offense, and it then held that these precedents were correctly decided and that they all ultimately stood for the proposition that “in a case of conflicting evidence and competing inferences, the instruction should be given.”[21] Applying that logic to Rodriguez’s case, the Court held that his admission to being involved in a melee which resulted in the victim’s death by a gunshot fired from a gun in Rodriguez’s hand was sufficient to satisfy the confession prong of the confession and avoidance doctrine, though the State argued that Rodriguez’s testimony denied both the act and the culpable mental state.
So where does this jurisprudence leave us?
The Court of Criminal Appeals seems to have ultimately come down on the side of an expansive view of the confession prong. The Court’s holdings indicate that if the defendant’s admissions, even conflicting or equivocating, do not foreclose the commission of the offense, the instruction should be given and the jury should be allowed to resolve any conflicts. This seems to answer the question of just how much of an admission the defendant must make, which the Juarez opinion implicitly left unanswered. However, the Court has still not resolved the question explicitly left unanswered in Juarez, which is whether the “confession” requires the defendant’s own admission.
Though this question has not been squarely addressed by the Court of Criminal Appeals, there is precedent from which one could infer that the defendant’s own admission is not required. Generally, a “defendant is entitled to an instruction on every defensive issue raised by the evidence, regardless of whether the evidence is strong, feeble, unimpeached, or contradicted, and even when the trial court thinks the testimony is not worthy of belief.”[22] Further, there is long-standing precedent that the source of the evidence is irrelevant.[23] The Court of Criminal Appeals recently reiterated these general rules in confession and avoidance cases, further confirming their continuing viability in this context.[24] Therefore, prosecutors would be well served to be cautious about contesting the inclusion of a confession and avoidance defensive instruction where the admission is not the defendant’s own but the evidence otherwise potentially raises a confession and avoidance defense.[25]
Conclusion
Recent jurisprudence on the confession and avoidance doctrine dictates that trial courts should err on the side of letting juries resolve factual conflicts and ambiguities in deciding whether to give defensive instructions. That being the case, Texas prosecutors should be aware of the Court’s recent pronouncements in this area and be cautious about contesting the inclusion of such defensive instructions. There is perhaps no more disappointing feeling than earning a hard-won and just conviction, only to see it overturned on appeal due to charge error. Luckily, though the law allows defensive theories instructions to be included in the charge even where they are conflicting or have dubious factual support, this is oftentimes fertile ground for final argument. Likewise, juries are not inclined to leave their common sense at home, and so prosecutors with good cases, good final arguments, and fair juries will usually find the inclusion of such instructions not just harmless but even helpful in reaching their sought-after verdict. We prosecutors should be cautious in crafting our jury charges and leave incredulity for our final arguments.
Endnotes
[1] Juarez v. State, 308 S.W.3d 398, 402 (Tex. Crim. App. 2010) (so holding and applying in necessity defense (Tex. Pen. Code §9.22)); see, e.g., Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007) (applying confession and avoidance doctrine to Good Samaritan defense (Tex. Pen. Code §22.04(k))); Cornet v. State, 359 S.W.3d 217, 225 (Tex. Crim. App. 2012) (applying to medical care defense in Tex. Pen. Code §22.021(d)); Ex parte Nailor, 149 S.W.3d 125, 132-34 (Tex. Crim. App. 2004) (applying to self-defense in Tex. Pen. Code §9.31); see generally, Tex. Pen. Code Ch. 9 (Justification Excluding Criminal Responsibility).
[2] Juarez, 308 S.W.3d at 402 (confession and avoidance doctrine does not apply to the affirmative defense of mistake of fact).
[3] Shaw, 243 S.W.3d at 659.
[4] See Juarez at 402–03.
[5] Id. at 403.
[6] Id., citing Martinez v. State, 775 S.W.2d 645, 647 (Tex. Crim. App. 1989) (holding that the defendant was entitled to a self-defense instruction despite his denial of the mens rea element of the offense by claiming that he did not intend to kill the victim).
[7] Juarez, 308 S.W.3d at 403-06.
[8] Id. This portion is in quotations because this rendition of the facts is rather dubious—in fact the appellant was asked specifically if he engaged in the conduct intentionally, knowingly, or recklessly, and he denied acting in any of those mental states. But it illustrates that the Court of Criminal Appeals took a rather expansive view of the facts (and perhaps is reflective of the Court’s notion of fair play: Though it is unstated here, it is perhaps only fair that if the jury can disbelieve the appellant’s denial of the culpable mental state to his detriment to find him guilty, the jury should also be able to disbelieve the appellant’s denial of the culpable mental state to his benefit to find in his favor on a justification defense).
[9] Juarez v. State, No. 12-08-0009-CR, 2009 WL 768595 at *4 (Tex. App.—Tyler Mar. 25, 2009) (mem. op., not designated for publication) aff’d, Juarez, 308 S.W.3d 398.
[10] Id. at 404.
[11] Id. at 405–06 (internal citations omitted).
[12] Id. at 406.
[13] Ebikam v. State, No. PD-1199-18, 2020 WL 3067581 (Tex. Crim. App. Jun. 10, 2020) (mem. op., not designated for publication).
[14] Id. at *1.
[15] Id. at *3.
[16] Id. at *4-6, Newell, J. concurring (joined by Judges Richardson and Slaughter).
[17] Id. at *5-6.
[18] Ebikam v. State, No. 04-18-00215-CR, 2020 WL 6470383 at *1-2 (Tex. App.—San Antonio, Nov. 4, 2020) (pet. ref’d) (mem. op, not designated for publication).
[19] Rodriguez v. State, 629 S.W.3d 229, 231 (Tex. Crim. App. 2021).
[20] Id. at 231-32 (internal citations omitted).
[21] Id. at 233.
[22] Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim. App. 2007).
[23] Smith v. State, 676 S.W.2d 584, 586-87 (Tex. Crim. App. 1984).
[24] See, e.g., Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020) (noting self-defense is a confession and avoidance defense and reiterating that a defendant is entitled to any defensive instruction raised by the evidence, though the defendant did testify in that case).
[25] See Smith, 676 S.W.2d at 586-87 (self-defense instruction warranted though defendant did not testify, but court did not examine confession and avoidance doctrine implications directly); Roark v. State, No. 01-19-00428-CR, 2020 WL 5823152 at *3-7 (Tex. App.—Houston [1st Dist.] Oct. 1, 2020, no pet.) (mem. op., not designated for publication) (examining Court of Criminal Appeals’ holdings on confession and avoidance issue and holding that there was evidence in the record, though the defendant did not testify, from which the jury could have found all the elements of the offense and the defensive theory to be true and that the trial court erred by not giving a necessity instruction).