            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                               NO. PD-0849-11



                                   DEL RAY SANDERS, Appellant

                                                         v.

                                        THE STATE OF TEXAS

            ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE NINTH COURT OF APPEALS
                              POLK COUNTY

        J OHNSON, J., filed a dissenting opinion in which K ELLER, P.J., joined.


                                 DISSENTING OPINION

        I write separately to point out the trial court’s error in stating that appellant had to admit

killing Linnie in order to be entitled to a jury instruction on the lesser-included offenses of

manslaughter and negligent homicide and the state’s error in supporting the trial court in its error.1

        1
           Defense counsel: I have two more, Your Honor, the request for manslaughter instruction and the negligent
homicide instruction.
         The court: Doesn’t he have to agree that he killed her first in order to get those?
                                              ...
         The state: Judge, I would tend to agree with the Court on the status of the evidence in this case. I don’t
think there is any unequivocal admission on the defendant’s part that he has caused the death of Linnie Sanders that
would warrant giving of a manslaughter instruction. . . .”
                                                                                                         2

        This Court has been clear that, before becoming entitled to a jury instruction on defenses such

as necessity, self defense, defense of third persons, protection of life or health, protection of property,

and some other statutory justifications and defenses,2 the defendant must admit the act alleged and

then produce evidence that supports the appropriate defense. See, e.g., Juarez v. State, 308 S.W.3d

398 (Tex. Crim. App. 2010) (in trial for aggravated assault, defendant entitled to necessity

instruction under Tex. Penal Code Ann. § 9.22 because he satisfied the confession and avoidance

doctrine when he admitted biting an officer to get the officer off of him); Alonzo v. State, 353

S.W.3d 778 (Tex. Crim. App. 2011) (self defense); Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim.

App. 2007) (The Good Samaritan defense is, on its face, a confession-and-avoidance or

"justification" type of defense).

        It is clear that confession and avoidance are required for many, if not most, legal defenses.

Cornet v. State, ___ S.W.3d ___ (Tex. Crim. App. 2012) (“[T]his Court recently pronounced, in

Juarez v. State, that ‘the doctrine of confession and avoidance does not apply to all defensive issues.’

. . . We clarified, in Juarez, that the defensive issues the doctrine does not apply to are those that ‘by

[their] terms, negate[] the culpable mental state’ required for commission of the offense.”). I have

been unable to find a case that requires the same for jury instructions on lesser-included offenses.

Indeed, to do so would produce an absurd result; a defendant charged with aggravated assault would

have to admit to the charged offense in order to get an instruction on unaggravated assault. Or, as

in this case, a defendant would be required to admit to murder before getting a jury instruction on

manslaughter.

        The Penal Code does not require that a defendant intend the death of an attacker in


        2
            See T EX . P EN AL C OD E Chs. 8 and 9.
                                                                                                      3

       order to be justified in using deadly force in self-defense. Were we to infer such a
       requirement, it would create perverse incentives. Using the State's argument, an
       individual who would be justified in using deadly force but, in an attempt to use non-
       lethal force to end the confrontation, accidentally killed his attacker would be
       criminally liable; but an individual who would be justified in using deadly force and
       intentionally kills his attacker would not be criminally liable. We do not believe
       interpreting our self-defense statutes in a way that would provide more protection in
       cases of intentional homicide would accurately reflect the legislature's intent.

Alonzo, 353 S.W.3d at 783.

       I would hold that the record reveals that appellant was entitled to the instructions on the

lesser-included offenses and, because he was denied those instructions, is entitled to a new trial.



Filed: April 4, 2012
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