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Texas Court of Criminal Appeals: Defendant Satisfied Requirements of Confession and Avoidance, ‘Unintentional Self-Defense’ Jury Instruction Allowed Against Charge of Intentional Offense

by Douglas Ankney

The Texas Court of Criminal Appeals (“TCCA”) held that Marvin Rodriguez satisfied the requirements of confession and avoidance. The TCCA also instructed that Martinez v. State, 775 S.W.2d 645 (Tex. Crim. App. 1989), remains good law.

Rodriguez was charged with murder for shooting and killing Richard Sells in the parking lot of the Cowboys Stadium after a football game. At trial, the State’s witnesses testified that Sells was attempting to break up a fight between Candido (Rodriguez’s brother) and two other men identified as Miguel and Francisco. The State’s witnesses testified they did not see Rodriguez get hit or injured. But they saw him walk up to Sells as he wrestled with Candido, and they saw Rodriguez shoot Sells.

However, defense witness Candido testified several men attacked him. He was knocked unconscious. When he came to, he was facedown on the ground. He felt the weight of someone on his back, punching him as blood ran down his throat. He thought he would lose consciousness and feared for his life. He yelled for his brothers to help him. He heard a gunshot, the weight lifted, and he could breathe again.

Rodriguez testified he saw Candido being attacked by multiple people. He attempted to intervene with his fists but was hit several times and knocked down twice. He retrieved a gun from his brother’s vehicle because he feared he would be severely injured and because he was unable to defend his brother with just his fists. Rodriguez denied the intent to kill anyone; he got the gun to scare away the attackers. Sells was on Candido’s back, punching him. Rodriguez testified he grabbed Sells in a headlock and put the gun to his neck. At that point, Sells jerked away while someone pulled on Rodriguez’s arm. Rodriguez attempted to pull back. His “finger was on the trigger,” and he instinctually “gripped” the gun “tightly” causing the gun to fire, killing Sells.

Rodriguez requested instructions on the defense of necessity, self-defense, and defense of a third person. The trial court denied his request, and he was convicted of murder. The Court of Appeals affirmed on grounds that he failed to satisfy the “confession and avoidance” doctrine. The TCCA granted discretionary review to consider whether Rodriguez’s actions and admissions satisfied the doctrine of confession and avoidance and consider whether Martinez remains good law.

The TCCA observed “[c]onfession and avoidance is a judicially imposed requirement that requires defendants who assert a justification defense to admit, or at a minimum to not deny, the charged conduct.” SeeBowen v. State, 162 S.W.3d 226 (Tex. Crim. App. 2005). It is a “defense to prosecution that the conduct in question is justified under this chapter.” Texas Penal Code § 9.02. “Conduct” means “an act or omission and its accompanying mental state.”§ 1.07(a)(10).

For the doctrine to be applicable, the TCCA explained that the “evidence need not unequivocally show that the defendant engaged in the conduct.” SeeJuarez v. State, 208 S.W.3d 398 (Tex. Crim. App. 2010). In addition, whether “the evidence supports the requested instruction is viewed in the light most favorable to the instruction,” according to the TCCA. SeeFerrel v. State, 55 F.3d 586 (Tex. Crim. App. 2001). Finally, the TCCA explained that the jury is responsible for determining credibility. The court’s only role is to decide whether there is “some evidence—even if weak, inconsistent, or contradictory—that a rational jury could find supports the defense.” See Shaw v. State, 243 S.W.3d 647 (Tex. Crim. App. 2007).

The TCCA stated that traditionally the defendant must admit to “all elements of the charged offense” in order to be entitled to a justification defense. See Juarez. However, the TCCA observed that “formulation has been rephrased and even seemingly undermined.” See id.

The TCCA then discussed Martinez. In that case, the defendant testified he pulled a gun and fired it into the air because his wife’s uncle was being violent towards him. He didn’t intend to kill the victim, but his mother-in-law allegedly grabbed his arm as he was firing in the air. Her finger was over his finger, and that forced his finger to remain on the trigger as the gun fired, killing the victim. The Martinez Court held that his denial of intent did not “preclude an instruction on self-defense” since he admitted his finger was on the trigger at the moment the fatal shot was fired.

In Juarez, the defendant also denied any intent to bite the victim. The Juarez Court still held that the defendant was entitled to an instruction on self-defense because Juarez did not flatly deny a culpable mental state since such a mental state “could have been inferred from his testimony” that the victim was causing him to suffocate. Id.

The TCCA concluded Juarez and Martinez are consistent: “a defendant’s testimony explicitly denying a culpable mental state or asserting accident does not automatically foreclose a justification defense if his testimony may otherwise imply a culpable mental state.”

The TCCA cited similar reasoning and results in Merritt v. State, 213 S.W.2d 941 (Tex. Crim. App 1919). The Merritt Court held if the facts surrounding the homicide in question gave Merritt “the legal right to defend against an unlawful attack … causing him to have a reasonable expectation or fear of death or serious bodily injury, his right of self-defense would inure regardless of whether the discharge of the pistol was accidental or otherwise.”

Refusing the defensive instructions in cases like Juarez, Martinez, and Merritt would violate a court’s duty to look at the evidence in the light most favorable to the requested instruction, according to the TCCA. Refusal would require the courts to accept as true the defendant’s denial of intent while ignoring evidence that the defendant hurt or killed the victim in response to the victim’s aggression.  

In contrast, allowing the instruction allows the jury to resolve the conflict in the evidence, the TCCA stated. Thus, the TCCA instructed “in a case of conflicting evidence and competing inferences, the instruction should be given.”

In the instant case, Rodriguez denied the act of shooting Sells, but he equivocated when he admitted that his finger was on the trigger when he jerked his arm, firing the lethal shot. And while he denied any intent to shoot or kill, the jury could have inferred intent from the fact that he retrieved the gun from the vehicle after being knocked down twice in a fight together with the fact he stuck the gun to Sell’s neck.

The TCCA held that Rodriguez “satisfied confession and avoidance notwithstanding his assertion that he unintentionally fired the gun because his testimony impliedly supported the charged conduct.”

Accordingly, the TCCA reversed the judgement of the Court of Appeals and remanded the case to that court for a harm analysis under Almanza v. State, 686 S.W. 2d 157 (Tex. Crim. App. 1984). See: Rodriguez v. State,629 S.W.3d 229 (Tex. Crim. App. 2021).

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Related legal cases

Rodriguez v. State

Juarez v. State

Shaw v. State

Bowen v. State

Ferrel v. State



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