









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0666-09


JAIME CASAS JUAREZ, JR., Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE TWELFTH COURT OF APPEALS

SMITH COUNTY



	Keasler, J., delivered the opinion of the Court in which Keller, P.J., Meyers,
Price, Womack, Johnson, Hervey, Holcomb, and Cochran, JJ., joined.  Holcomb,
J., filed a concurring opinion in which Keller, P.J., Price and Johnson, JJ., joined. 

O P I N I O N


	The confession and avoidance doctrine applies to the necessity defense. (1)  Therefore,
a defendant must admit to the conduct--the act and the culpable mental state (2)--of the
charged offense to be entitled to a necessity instruction.  Juarez's testimony both admitted
to and denied the culpable mental state; therefore, the trial judge erred in denying Juarez's
request for a necessity instruction.  The court of appeals's judgment (3) is affirmed and we
remand this case to the trial court. 
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 found Juarez sitting on some steps, sweaty and out of breath.  Juarez
put his hands in the air, but when Officer Burge tried to handcuff him, he pulled away. 
Officer Burge grabbed Juarez, and both of them fell to the ground with  Juarez facing Officer
Burge.  Officer Burge ordered Juarez to stop resisting and yelled for help.  With Juarez now
facing the ground, Officer Burge had both of his hands on Juarez's back to keep him from
getting up, but Juarez was pushing up with Officer Burge on his back.   Officer Burge did
not know if Juarez's face went into the ground.  He presumed Juarez did not have any trouble
breathing because Juarez was saying "foul" things to him.  Realizing that no one heard his
call for help, Officer Burge tried to radio his location.  When Officer Burge removed his
right hand from Juarez's back to use his radio, Juarez bit Officer Burge's left index finger. 
Burge testified that Juarez did this intentionally, knowingly, or recklessly.  Officer Burge
tried to get Juarez to let go by standing up and hitting him, but Juarez stood up and refused
to let Officer Burge's finger go.  Finally, when Officer Black arrived and hit Juarez, Juarez
released Officer Burge's finger.   Officer Black testified that, based on his observations,
Juarez's biting of Officer Burge's finger was intentional, knowing, or reckless.  Juarez
continued to resist arrest by wrestling with and hitting Officer Black.  Once Officer Balderas
arrived, he and Officer Black were finally able to subdue Juarez and arrest him.  Juarez
remained belligerent and refused to walk to the patrol car.  
	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 instruction on the necessity defense, (4) claiming that he had raised the issue.  The
trial judge denied the request because, among other things, Juarez denied the culpable mental
state when he denied biting Officer Burge intentionally, knowingly, or recklessly.  The jury
later found Juarez guilty and sentenced him to fifty years' confinement and assessed a $5,000
fine. 
Court of Appeals
	Juarez appealed the trial judge's refusal to instruct the jury on necessity. (5)  The State
argued that Juarez was not entitled to the instruction because he refused to admit to all of the
elements of the offense, in particular, the culpable mental state, which is a prerequisite for
a necessity instruction. (6)  The Tyler Court of Appeals disagreed and held that a defendant
need admit only the prohibited act, not the applicable mental state accompanying the
prohibited conduct. (7)  The court determined that Juarez's testimony admitting to the act (i.e.,
the biting), even if by accident, was sufficient to entitle him to a necessity instruction. (8)  The
court then held that the error was harmful. (9)  As a result, it reversed the trial court's judgment
and remanded the case for a new trial. (10) 
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. (11)  We
have defined the doctrine's requirements in two distinct ways.  First, we have said that a
defendant must admit to all elements of a charged offense before the defendant will be
entitled to a defensive instruction. (12)  Alternatively, we have said that a defensive instruction
is required when "the defendant's defensive evidence essentially admits to every element of
the offense, including the culpable mental state . . . ." (13)  Over the years, we have applied the
doctrine in cases where the defendant asserted necessity, (14) self-defense, (15) or the Good
Samaritan defense. (16)  But we have observed that the doctrine does not apply when the
defensive issue, by its terms, negates the culpable mental state. (17)  The affirmative defense of
mistake of fact is one example. (18) 
	The confession and avoidance doctrine originated in English common law during the
Fourteenth Century in relation to civil-case pleading requirements. (19)  A justification, used to
challenge a plaintiff's specific allegation, was asserted in a special traverse in the form of a
plea of confession and avoidance. (20)  One scholar has explained the common law civil
pleading process as follows: 
	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 nurturance 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. (22) 
	The doctrine of confession and avoidance appears to have been formally introduced
into our criminal-law jurisprudence in 1952, in Kimbro v. State. (23)  In that case, we rejected
the appellant's claim that drinking a half pint of whiskey after he was arrested constituted an
affirmative defense to driving while intoxicated. (24)  We explained that the defendant's claim
constituted a denial of the charge, and citing a New York civil case, we said: "an affirmative
defense was defined, in part, as meaning a new matter, assuming the complaint to be true,
which constitutes a defense to it." (25)
	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. (26)  In those cases, we noted that the defendants mounted a defensive theory based
on trial strategy designed to negate only a specific element of the charged offense. (27)  For
instance, in Royal v. State, we held that the appellant's testimony that he did not intend to kill
the victim did not constitute an affirmative defense. (28)  We stated that the appellant's
testimony amounted to a denial of the State's allegation that he intended to kill the victim. (29) 
We have reached similar decisions in cases where the defendant denied both the actus rea
and the mens rea elements of an offense. (30)  But in a handful of cases we have ignored the
confession and avoidance doctrine altogether. (31)  In Martinez v. State, for instance, we held
that the appellant was entitled to an instruction on self-defense even though he claimed that
he did not intend to kill the victim. (32) 
	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 (33) is defined
in Penal Code Section 9.22 and states:
		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 its
accompanying mental state." (35) 
	A survey of our caselaw since the enactment of the Penal Code in 1974 establishes
that we have interpreted the necessity defense, (36) as defined in Section 9.22, to embrace the
confession and avoidance doctrine. (37)  And although our application of the doctrine has been
inconsistent at times, we have applied in it in all of our decisions involving the necessity
defense. (38)  The Legislature has amended the statute since its enactment in 1973, (39) but it has
never overruled our determination about the application of the confession and avoidance
doctrine. (40) In the absence of any contrary legislative command, we will presume that the
Legislature has approved our determination that Section 9.22 embraces the confession and
avoidance doctrine. (41)  As a result, we hold that the court of appeals was incorrect when it
concluded that Juarez's admission to the act 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. 
	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." (42)  The defendant bears the burden of showing that each
element of the defense has been satisfied. (43) In Shaw, we interpreted Section 2.03(c) to
incorporate a second long-standing common law defensive issue doctrine--that a trial judge
must, upon a defendant's proper request, instruct the jury on every defensive issue raised by
the evidence without regard to its source or strength. (44)  Under this doctrine, it is of no
consequence "whether such evidence or testimony was produced by the prosecution or the
accused, or whether such defensive evidence or testimony might be strong, weak,
unimpeached, or contradicted." (45) 
	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. (46)  In this instance, Section 9.22's admission requirement governs the specific
defensive issue of necessity and therefore trumps Section 2.03(c)'s general rule.
	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. (47)  Though Juarez denied biting Officer Burge intentionally,
knowingly, or recklessly he had also admitted that he bit Officer Burge to get Officer Burge
off of him because Officer Burge was causing him to suffocate.   Juarez's mental state--that
the biting was done either intentionally, knowingly, or recklessly--could have reasonably
been inferred from his testimony about the circumstances surrounding his conduct. (48)  Thus,
the confession and avoidance doctrine was satisfied because Juarez had admitted to both the
act and the requisite mental state. (49)  The trial judge was therefore required to instruct the jury
on the necessity defense.  It was then within the jury's province as the factfinder to determine
whether Juarez's conduct was excused under the necessity defense.
	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. (50)  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. (51)  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. (52)  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. 
	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. (53)  Here, Officer Burge did nothing to
coerce Juarez.  Officer Burge tried to prevent Juarez's escape and attempted to control him
so that he could lawfully arrest him.  Thus, even if Juarez had admitted to the conduct,
Gilbert does not bar the application of the necessity defense under the facts of this case. 
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 (54) and we did
not grant review to evaluate its harm analysis.  We remand this case to the trial court.  

DATE DELIVERED: March 31, 2010
PUBLISH
1.   See Tex. Penal Code Ann. § 9.22 (Vernon 2003).  
2.   See Tex. Penal Code Ann. § 1.07(10) (Vernon 2003).
3.   Juarez v. State, No. 12-08-00009-CR, 2009 Tex. App. LEXIS 3762, at *11-14
(Tex. App.--Tyler Mar. 25, 2009) (not designated for publication). 
4.   See Tex. Penal Code Ann. §§ 2.03, 9.02, 9.22 (Vernon 2003). 
5.   2009 Tex. App. LEXIS 3762, at *1.
6.   Id. at *7.
7.   Id. at *10.
8.   Id. at *11.
9.   Id. at *17-18.
10.   Id. at *18.
11.   Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007); Kimbro v. State,
157 Tex. Crim. 438, 440 (Tex. Crim. App. 1952); see e.g., Canon v. State, 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).
12.  Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999).
13.   Shaw, 243 S.W.3d at 659.
14.   Young, 991 S.W.2d at 838.
15.   Ex parte Nailor, 149 S.W.3d 125, 132-34 (Tex. Crim. App. 2004).
16.   Shaw, 243 S.W.3d at 659. 
17.   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).
18.   Granger, 3 S.W.3d at 41; Jackson, 646 S.W.2d at 227.
19.   Stephen G. Gilles, Inevitable Accident in Classical English Tort Law, 43
Emory L.J. 575, 617-18 (1994).
20.   Id.
21.   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. 111, 117-18 (2008).
22.   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. State,
769 S.W.2d 515, 517-18 (Tex. 1988).  
23.   157 Tex. Crim. at 440; 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.").
24.   Kimbro, 157 Tex. Crim. 440.
25.   Id. (citing Carter v. The Eighth Ward Bank, 67 N.Y.S. 300 (N.Y. S.Ct. 1900))
(emphasis in original).  
26.  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,
256 S.W.2d 583, 586 (Tex. Crim. App. 1953); Kimbro, 157 Tex. Crim. 440; Royal v.
State, 228 S.W.2d 162, 163 (Tex. Crim. App. 1950); Sharp v. State, 199 S.W.2d 159, 160
(Tex. Crim. App. 1947) (on reh'g).
27.  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. 440; Royal, 228
S.W.2d at 163; Sharp, 199 S.W.2d at 160. 
28.  228 S.W.2d at 163. 
29.   Id.
30.   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.
31.   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).
32.   775 S.W.2d 645, 647 (Tex. Crim. App. 1989). 
33.   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.). 
34.   Tex. Penal Code Ann. § 9.22. 
35.   Tex. Penal Code Ann. § 1.07(10). 
36.   Added by Acts 1973, 63rd Leg., ch. 399, § 1, effective Jan. 1, 1974.
37.  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 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).
38.   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, slip op. at *9.
39.   Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, effective Sept. 1, 1994.
40.   See State v. Colyandro, 233 S.W.3d 870, 878 (Tex. Crim. App. 2007).
41.   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)). 
42.   Tex. Penal Code Ann. § 2.03(c) (Vernon 2003); see also Tex. Penal Code
Ann. § 2.04(c) (Vernon 2003). 
43.   Shaw, 243 S.W.3d at 657-58. 
44.   Id.; Booth v. State, 679 S.W.2d 498, 500 (Tex. Crim. App. 1984). 
45.   Booth, 679 S.W.2d at 500. 
46.   Alejos v. State, 555 S.W.2d 444, 449-50 (Tex. Crim. App. 1977) (on reh'g).
47.   See e.g., Shaw, 243 S.W.3d at 659; Ex parte Nailor, 149 S.W.3d at 132-33.
48.   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).
49.   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). 			
50.   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.
51.   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.
52.  Shaw, 243 S.W.3d at 659.
53.   Gilbert, 2010 Tex. Crim. App. Unpub. LEXIS 99, at *13-14.
54.   Juarez, 2009 Tex. App. LEXIS 3762, at *16-18.
