By Britt Houston Lindsey
Chief Appellate Prosecutor in the Criminal District Attorney’s Office in Taylor County
In the 1977 film Star Wars, the character of Greedo is holding a blaster and “has the drop” on the hero (or perhaps antihero) Han Solo in a futuristic Old West cantina. Greedo is preparing to take him to the galactic gangster Jabba the Hut, but Han shoots him first, which causes such a commotion that the band very briefly stops playing. In later versions of the film, director George Lucas alters the scene to show Greedo firing at Han first (and missing) in an effort to give Han greater justification for acting in self-defense. Fans of the original movie were outraged at what they saw as the storyteller’s equivocation with the story.
Thanks to Rodriguez v. State,[1] handed down September 15, we now know that, at least in Texas, a certain amount of equivocation in a claim of self-defense is legally acceptable.
Background
The underlying case involved a charge of murder for the shooting and killing of Richard Sells in the Cowboys Stadium parking lot after a football game. The defendant, Marvin Rodriguez, was tailgating with his two brothers and several other men, including the victim, Sells. A fight broke out between one of the brothers and two other men, and it escalated into a chaotic brawl, during which Rodriguez shot and killed Sells.
The State put on several witnesses, including Sells’s fiancé and two other tailgaters, who testified that Sells had been trying to break up the fight, that Rodriguez was not struck or injured, and that they did not see Sells strike anyone. The defense presented testimony from Rodriguez’s brother that he was sucker-punched and knocked unconscious, and when he came to, he was being viciously strangled, punched, and kicked by multiple assailants, one of whom was on his back. He testified that he called for his brothers and that he heard a gunshot, after which the attack on him subsided and the weight on his back lifted.
Rodriguez testified too, saying that he saw his brother being attacked; Rodriguez attempted to intervene with his fists but was knocked down twice. He retrieved a gun from his brother’s vehicle out of fear that his brother would be severely injured and because he was unable to defend him unarmed. He denied the intent to kill anyone, saying that he got the gun to scare away attackers. He testified that when he returned to the scrum, Sells was kneeling on his brother’s back and punching him. When he put Sells in a headlock and placed the gun at his neck, Sells jerked away and someone yanked on his arm, at which point the gun fired, mortally wounding Sells. Rodriguez testified that he never intended to fire the gun and that he was “shocked” when it went off. He agreed on cross-examination that the only way that the gun could have gone off is if his finger had been on the trigger, but he testified on redirect that his “instinctual reaction would be to pull back” and that he instinctively “gripped” the gun “tightly.”
At the charge conference, Rodriguez requested jury instructions on the defenses of necessity, self-defense, and defense of a third person. The trial court denied all requested instructions, and Rodriguez was found guilty of murder and sentenced to 20 years in prison.
The court of appeals
Rodriguez appealed to the Fort Worth Court of Appeals alleging nine points of error, chief among them the denial of his requested jury instructions. The main barrier to his argument was that those instructions are “confession and avoidance” defenses, and prior caselaw required a defendant to admit (the “confession”) to each element of the offense (including the requisite mental state), which then allows him to assert the justification to excuse the otherwise criminal conduct (the “avoidance”).[2] The Fort Worth Court noted at the outset that Rodriguez did not admit the culpable mental state for murder and had at trial repeatedly insisted that the shooting was unintentional and an accident.
However, Rodriguez asserted that a line of older cases stemming from Martinez v. State[3] had held that a defendant may be entitled to a self-defense instruction even when he contends that a shooting is unintentional, so long as he admits to the underlying actions that constitute the commission of the offense. In Martinez, the defendant testified that the gun went off several times after his mother-in-law grabbed his arm, and that he could not remove his finger from the trigger because her finger was “right on top” of his own. The trial court denied a self-defense instruction (and the court of appeals affirmed) because the defendant did not admit to the offense: Instead, he denied an intent to kill the victim and claimed that his mother-in-law “caused” the victim’s death. The Court of Criminal Appeals reversed, finding the defendant had sufficiently admitted to the commission of the offense: He admitted to pulling out the gun, firing it into the air, and having his finger on the trigger when the fatal shot was fired. Significantly, the Court held that while the defendant “specifically denied intending to kill [the victim], this alone does not preclude an instruction on self-defense.”[4]
The Fort Worth Court wasn’t convinced, in part because it questioned whether Martinez was still good law. Even assuming it was, the court distinguished its facts from those in Rodriguez’s case, finding that “unlike [in] Martinez, [the] appellant refused to take ownership of the lethal act.” According to the court, Rodriguez differed from Mr. Martinez in that he never admitted “firing” the gun or “having his finger on the trigger when the fatal shot was fired”; rather, he carefully avoided that admission, stating instead that when his arm was pulled on, “the pistol just—it went off,” leaving him in shock and confusion because he “didn’t understand why the pistol went off.” Because of what the court called a “conspicuous gap” in Rodriguez’s admission concerning what actually caused the gunshot, he failed to substantially admit the charged offense and was not entitled to any of his requested defensive instructions.
As the CCA saw it
But that’s not As the Judges Saw It on the Court of Criminal Appeals. Rodriguez petitioned the high court on the issue of the denied defensive instructions, and the Court granted his petition. The Tarrant County Criminal District Attorney’s Office filed a responsive brief on the merits, arguing that the facts of the case more closely resembled those of Ex parte Nailor.[5] The State Prosecuting Attorney also filed a brief as amicus curiae arguing that Martinez should be disavowed and that Rodriguez’s testimony describing an accidental killing entitled him to nothing more than a lesser-included manslaughter instruction.
The Court of Criminal Appeals found that the failure to give the instructions was error. Judge Keel wrote for the Court, joined by Presiding Judge Keller and Judges Hervey, Richardson, Newell, Slaughter, and McClure (Judges Yeary and Walker concurred without written opinion). Judge Keel’s opinion settled the question straight out of the gate that Martinez still stands as good law and also held that Rodriguez’s equivocation about the commission of the charged conduct satisfied the doctrine of confession and avoidance.
Judge Keel’s opinion noted the traditional “confession and avoidance” formulation is that the defendant must “admit to all elements of the offense,” but the opinion also noted that formulation has been “rephrased and even seemingly undermined.”[6] Judge Keel noted that other cases had treated Martinez as an anomaly, and that one in particular, Juarez v. State,[7] went so far as to call it an instance when the Court had ignored the general rules of confession and avoidance to allow a defendant to claim it when he had asserted accident at trial. Judge Keel reconciled those two opinions by noting the holding they have in common: that the defendant’s denial of a culpable mental state or assertion of an accident doesn’t automatically foreclose a justification defense, so long as the culpable mental state may be implied by his testimony. She reasons that if the rule were otherwise, refusing the defensive instruction would violate the trial court’s duty to view the evidence in the light most favorable to the requested instruction—the court would have to accept as true the defendant’s express denial of intent and ignore his admissions of having injured or killed the victim in response to the victim’s aggression. When the evidence conflicts, the instruction should be given, even if the source of that conflict is the defendant’s own equivocation.
And equivocate the defendant did. The District Attorney’s Office argued that Rodriguez negated the act by testifying that the shooting was involuntary and negated the culpable mental state by testifying that he did not intend to shoot Sells.[8] However, Judge Keel noted, the evidence on those points conflicted; even Rodriguez’s own testimony conflicted. Judge Keel observed an accidental or unintentional movement may be voluntary, and a rational jury could have reasoned the shooting was voluntary from Rodriguez’s concession that his finger must have been on the trigger, and his testimony that he gripped the gun tightly “as an instinctual reaction” to being grabbed, supported an inference that he fired the gun voluntarily. His intent to kill may be inferred from the same testimony that would support a finding of intent in a legal sufficiency argument: He admitted that he pointed a gun and shot it at someone at close range,[9] and he admitted to the use of a deadly weapon.[10] As Judge Keel put it, “If such testimony will support a conviction, then it also satisfies the confession-and-avoidance requirement.”
The Court also found the Ex parte Nailor case cited by the DA inapposite. In Nailor, a defendant who denied assaulting a victim was not entitled to a self-defense instruction because he failed to satisfy confession and avoidance, but the defendant in that case testified that the victim essentially injured herself when he raised his hands to passively defend himself from a brass eagle she had raised over her head; he accidentally knocked it from her hands, causing it to fall on her face.
Because the Court found the failure to give the instructions was error, it reversed and remanded Rodriguez to the court of appeals for a harm analysis under Almanza v. State.[11]
One other note
There’s reason to believe this harm analysis could be changing. On September 29, 2021, the Court of Criminal Appeals released its opinion in Phi Van Do v. State.[12] A bombshell was tucked away in Judge Newell’s concurrence, which was joined by Judges Hervey, Richardson, and McClure. In discussing how treating a .15 alcohol concentration provision as a DWI enhancement would result in future defendants’ punishment elections waiving a claim under Apprendi v. New Jersey,[13] Judge Newell said that another case was “poorly reasoned and unworkable” and was the root cause of many problems in evaluating jury charge error on appeal: Almanza v. State. A four-judge concurrence is pretty close to a majority on this topic, so if you’re reading this article and you’re familiar with Almanza harm analysis at all, do yourself a favor and go read Judge Newell’s concurrence in Do right now.
The takeaway
Back to Rodriguez: What does it mean to me, the hard-working, front-line prosecutor? I’m so glad you asked. If you’re like me, you’ve been confused by some of the seemingly contradictory opinions regarding when a defendant has or hasn’t satisfied the “confession and avoidance” requirement when claiming self-defense; Judge Keel’s opinion here does all parties a favor and clarifies the broader questions to at least some degree. How Rodriguez applies to the case currently in front of you may be clear as mud, but it might help to think of the “confession and avoidance” doctrine as a very low bar. Unless a defendant’s disclaimer of assault very closely tracks the facts in Nailor, it’s best not to fight a claim of confession and avoidance in a close case.
A good rule of thumb is to remember that self-defense, defense of a third person, and necessity defenses are not treated as legal sufficiency questions but are rather viewed in the light most favorable to the defendant. An instruction will be warranted when some evidence from any source supports the claim, whether strong or weak, unimpeached or contradicted, and without regard to credibility.[14] Rodriguez makes clear that remains the rule even when a defendant himself equivocates in his testimony. The bottom line is when a defendant is talking out of both sides of his mouth and trying to have it both ways on self-defense, don’t argue his equivocation to the judge at the charge conference—argue it to the jury in closing argument.
Endnotes
[1] No. PD-1130-19, 2021 Tex. Crim. App. LEXIS 786, 2021 WL 4186684, _S.W.3d_ (Tex. Crim. App. Sep. 15, 2021).
[2] See e.g. Cornet v. State, 417 S.W.3d 446, 451 (Tex. Crim. App. 2013).
[3] 775 S.W.2d 645 (Tex. Crim. App. 1989).
[4] Id. at 647.
[5] 149 S.W.3d 125 (Tex. Crim. App. 2004).
[6] Gamino v. State, 537 S.W.3d 507, 512 (Tex. Crim. App. 2017) (“admitting to the conduct does not necessarily mean admitting to every element of the offense”).
[7] 308 S.W.3d 398, 401-02 (Tex. Crim. App. 2010).
[8] As Judge Keel points out, these are separate questions. See Rogers v. State, 105 S.W.3d 630, 638-39 (Tex. Crim. App. 2003) (comparing “voluntary” under Tex. Penal Code §6.01 versus “nonvolitional”); Brown v. State, 955 S.W.2d 276, 280 (Tex. Crim. App. 1997) (holding that voluntariness is an issue separate from mental state).
[9] Ex parte Thompson, 179 S.W.3d 549, 556 n.18 (Tex. Crim. App. 2005) (“pointing a loaded gun at someone and shooting it toward that person at close range demonstrates an intent to kill”).
[10] Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996) (“the jury may infer the intent to kill from the use of a deadly weapon unless it would not be reasonable to infer that death or serious bodily injury could result from the use of the weapon”).
[11] 686 S.W.2d 157 (Tex. Crim. App. 1985).
[12] No. PD-0556-20, _S.W.3d_ (Tex. Crim. App. Sep. 29, 2021).
[13] 530 U.S. 466, 120 S. Ct. 2348 (2000).
[14] Gamino, 537 S.W.3d at 510 (citing Elizondo v. State, 487 S.W.3d 185, 196 (Tex. Crim. App. 2016)).