MacIel, Bethany Grace

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. PD-0753-20

BETHANY GRACE MACIEL, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRTEENTH COURT OF APPEALS BRAZOS COUNTY

MCCLURE, J., delivered the unanimous opinion of the Court. NEWELL, J., filed a concurring opinion.

OPINION A jury convicted Appellant of driving while intoxicated (DWI) with an

alcohol concentration level of 0.15 or more, a Class A misdemeanor. See TEX. PENAL

CODE § 49.04(d). The trial court assessed punishment at twenty days in jail and a

$2,500 fine. Appellant claims the trial court erred by denying her requested jury MACIEL ― 2

instruction on the defense of necessity. The court of appeals held that there was no

error in refusing the jury charge on necessity. Maciel v. State, No. 13-18-00586-CR,

2020 Tex. App. LEXIS 5391 (Tex. App.—Corpus Christi July 16, 2020) (mem. op.,

not designated for publication). We disagree and hold that Appellant was entitled to

a jury instruction on necessity.

Background

On January 31, 2016, Appellant went out drinking with her brother and his

wife. Appellant was too intoxicated to drive home so her brother drove her vehicle.

On the way back to Appellant’s apartment, Appellant’s brother became ill and

stopped the car in the middle of the road and began vomiting. Appellant climbed

over from the passenger seat to the driver’s seat. Although Appellant was intoxicated

and did not feel safe to drive, she had “to try and move the car out of the middle of

the road to the closest parking lot.” However, Appellant could not get the car to

move. She testified, “I couldn’t get the car to move, so I wasn’t driving. I don’t think

I was operating it.”

Officer Philip Shaw with the Texas A&M University Police Department

found the vehicle stopped in a lane of traffic with smoke coming from under the

hood. Appellant was in the driver’s seat and the engine was running. Appellant

attempted to shift gears and the officer instructed her not to do that. After failing the

field sobriety tests, Appellant was arrested for DWI. MACIEL ― 3

At trial, Appellant requested a jury charge on necessity because she was trying

to move the vehicle from the roadway. The State responded that Appellant could not

argue that she was not driving or operating the vehicle and also claim she was driving

out of necessity. The trial court denied the request for the defensive instruction.

On appeal, Appellant brought a single point of error, arguing that the trial

court erred by denying her requested jury instruction on the defense of necessity.

The court of appeals held that there was no error in refusing the jury charge on

necessity because Appellant’s defense was that she did not operate the vehicle. In

fact, Appellant testified, “I couldn’t get the car to move, so I wasn’t driving. I don’t

think I was operating it.” The court of appeals held that, because Appellant did not

admit the underlying DWI, she was not entitled to the defense of necessity. We

granted Appellant's petition for discretionary review to address her claim that in so

holding the court of appeals applied an incorrect legal standard.

Standard of Review

The trial court must provide the jury with “a written charge distinctly setting

forth the law applicable to the case.” Walters v. State, 247 S.W.3d 204, 208 (Tex.

Crim. App. 2007) (quoting TEX. CODE CRIM. PROC. art. 36.14). The trial court must

instruct the jury on statutory defenses, affirmative defenses, and justifications

whenever they are raised by the evidence in the case. Id. at 208–09. “A defendant is

entitled to an instruction on every defensive issue raised by the evidence, regardless MACIEL ― 4

of whether the evidence is strong, feeble, unimpeached, or contradicted, and even

when the trial court thinks the testimony is not worthy of belief.” Id. at 209. When

reviewing a trial court’s ruling denying a requested defensive instruction, we view

the evidence in the light most favorable to the defendant’s requested

instruction. See Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006).

Definition of Necessity

Texas Penal Code section 9.02 provides that “[i]t is a defense to prosecution

that the conduct in question is justified under this chapter.” Texas Penal Code section

9.22, in turn, provides in relevant part that conduct that is otherwise criminal “is

justified if: (1) the actor reasonably believes the conduct is immediately necessary

to avoid imminent harm [and] (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.” See TEX. PENAL CODE

§§ 9.02, 9.22.

Necessity is a confession-and-avoidance defense requiring the defendant to

admit to his otherwise illegal conduct. Juarez v. State, 308 S.W.3d 398, 404 (Tex.

Crim. App. 2010). To be entitled to a defensive instruction for necessity, a defendant

must put on evidence that “essentially admits to every element of the offense,

including the culpable mental state.” Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. MACIEL ― 5

App. 2007). In other words, a defendant cannot both invoke necessity and flatly

deny the charged conduct.

Nevertheless, a “defendant is entitled to an instruction on any defensive issue

raised by the evidence, whether that evidence is weak or strong, unimpeached or

uncontradicted, and regardless of how the trial court views the credibility of the

defense.” Celis v. State, 416 S.W.3d 419, 430 (Tex. Crim. App. 2013) (citing Allen

v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008)). A defense is supported (or

raised) by the evidence if there is some evidence, from any source, on each element

of the defense that, if believed by the jury, would support a rational inference that

that element is true. Shaw, 243 S.W.3d at 657-58; see Juarez, 308 S.W.3d at 404. In

determining whether a defense is thus supported by the evidence, the court views the

evidence in the light most favorable to the defendant’s requested jury

instruction, Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020), and relies

“on its own judgment, formed in the light of its own common sense and experience,

as to the limits of rational inference from the facts proven.” Shaw, 243 S.W.3d at

658.

Appellant Raised the Defense of Necessity

Appellant was charged with DWI, an offense committed if an intoxicated

person operates a motor vehicle in a public place. TEX. PENAL CODE § 49.04(a).

Appellant’s defense to the charge was that, although she was intoxicated, she was MACIEL ― 6

attempting to move the vehicle out from the middle of the road to a nearby parking

lot out of concern for her and her fellow passengers’ safety. The court of appeals

held that Appellant was not entitled to the defensive instruction because she denied

committing the offense. Specifically, the intermediate court focused on Appellant’s

statement that she did not “think I was operating [the car].” Appellant argues that

the court of appeals erred by ignoring this Court’s confession-and-avoidance

precedent set out in Juarez v. State, 308 S.W.3d 398, 400 (Tex. Crim. App. 2010).

In Appellant’s view, the court of appeals wrongly emphasized an isolated

inconsistency instead of examining her testimony in its totality to determine whether

a jury could reasonably infer she was operating the vehicle.

In Juarez v. State, the defendant was indicted for aggravated assault on a

peace officer for biting the officer’s finger. Juarez, 308 S.W.3d at 400. At trial,

Juarez testified that while the officer had him on the ground with his face in the dirt,

he felt like he was suffocating, and that he somehow ended up with the officer’s

finger in his mouth, biting down on it to get the officer off him. Id. at 400. By

contrast, on cross examination, Juarez testified that he did not intentionally,

knowingly, or recklessly bite the officer and that he was just concerned for his life;

that it was an accident and he just bit down and let go. Id.

Following the close of evidence, Juarez requested a necessity instruction,

which was denied by the trial court. The judge found that Juarez was not entitled to MACIEL ― 7

the instruction because he had denied the culpable mental state of intentionally,

knowingly, or recklessly. Id. at 401. Juarez appealed this refusal to instruct the jury

on necessity. The State argued that the defendant was not entitled to the instruction

because he did not admit to all the elements of the offense. The court of appeals

determined that the defendant’s testimony, admitting to the act of biting, even if by

accident, was sufficient to entitle him to an instruction. Finding the error harmful,

the court of appeals reversed the trial court’s judgment.

On the State’s petition for discretionary review, we agreed with the court of

appeals that the trial court had erred in denying the defendant’s request for a

necessity instruction and that the error was harmful. Specifically, we held that a

defendant cannot flatly deny the charged conduct, but if he admits to circumstances

surrounding his conduct from which the jury could infer the mental state, the

doctrine of confession and avoidance would still be satisfied. See id. at 405-06.

Therefore, Juarez satisfied the confession-and-avoidance doctrine because he had

both admitted the act and offered evidence from which the requisite mental state

could be inferred.

Turning to the case before us, we recognize that DWI is a strict liability crime,

meaning that it does not require a specific mental state (e.g., intentionally,

knowingly, or recklessly to operating a motor vehicle while intoxicated). TEX. MACIEL ― 8

PENAL CODE § 49.11. Therefore, Appellant need not present defensive evidence

regarding her mental state.

However, Appellant did present defensive evidence showing that, while she

was intoxicated, she was not operating a motor vehicle in a public place. See TEX.

PENAL CODE § 49.04(a). While the term “operate” is not statutorily defined, this

Court has held that, under a sufficiency review, the totality of the circumstances must

demonstrate that the defendant took action to affect the functioning of his vehicle in

a manner that would enable the vehicle’s use. See Denton v. State, 911 S.W.3d 388,

390 (Tex. Crim. App. 1995). We have also defined “to operate” as “to exert personal

effort to cause the vehicle to function.” See Kirsch v. State, 357 S.W.3d 645, 652

(Tex. Crim. App. 2012); see also Denton, 911 S.W.3d at 388 (defendant unable to

accelerate because vehicle required time to “warm up”); see also Murray v. State,

457 S.W.3d 446, 449 (Tex. Crim. App. 2015) (factfinder may reasonably infer that

driver operated his vehicle when he was in the driver’s seat and no one else was

found in the vehicle or in the area; see also Dornbusch v. State, 262 S.W.3d 432

(Tex. App.—Fort Worth 2008, no pet.) (defendant asleep in driver’s seat of idling

vehicle parked in parking lot).

While the court of appeals only looked at the evidence which undermined the

request for the instruction, it failed to look at the following evidence supporting it:

• Officer Shaw’s testimony: MACIEL ― 9

o The vehicle was stopped, the engine was running, and Appellant was in the driver’s seat, trying to move the vehicle. o Appellant was trying to help her brother get home and she was trying to move the vehicle. o When he approached the vehicle, Appellant said that she was trying to move the vehicle to the side.

• The bodycam video: o Appellant attempted to manipulate the gear shifter. o Officer Shaw asked, “Were you driving a car?” and Appellant said “Yes.”

• Appellant’s testimony: o She was scared because they were stopped in the middle of the road, she was worried about her brother, and she moved into the driver’s seat “to try and move my car out of the middle of the road to the closest parking lot to figure out how to get home from there.” o It was not her intention to drive the rest of the way home but to move the vehicle. o She was unable to move the vehicle because the parking brake was on. o She agreed with defense counsel that “the only reason you got behind the wheel was to try to pull your vehicle to safety.” o She was unable to move the vehicle but that she was trying to get the car to safety, to the adjacent parking lot. o She told Officer Shaw she was having trouble moving the car over. o “I was just intoxicated, and I knew that I was going to be the one that was in trouble, and I was trying to get the car off the road so that we could figure out a way for us to get home.”

Appellant’s testimony, recounted above, essentially admitted to every element

of the offense charged. She admitted to being intoxicated, admitted to being behind

the wheel of her vehicle with the engine running, admitted that she got into the

driver’s seat to try and move the car, and admitted that she was trying to get the car

safely to a parking lot. As this Court noted in Denton, supra, Texas juries have MACIEL ― 10

rendered guilty verdicts even when the evidence showed that the operator did not

successfully make the vehicle “go.” See Denton, 911 S.W.2d at 388. Similarly, in

this case, Appellant was sitting in the driver’s seat of a running vehicle and admitted

she was trying to move it. In accord with our jurisprudence, Appellant’s testimony

was sufficient to admit commission of DWI.

From the defensive evidence, a jury could reasonably infer that Appellant

operated a motor vehicle while intoxicated because she reasonably believed that

doing so was immediately necessary to avoid imminent danger. And while Appellant

did not say “I was operating a motor vehicle,” our jurisprudence regarding the

confession-and-avoidance doctrine does not require an explicit admission from the

defendant that she committed the crime. Shaw, 243 S.W.3d at 658 (holding that a

defendant’s defensive evidence, not an outright admission, must admit to the

conduct). Appellant was essentially saying that if she was operating a motor vehicle,

it was only for the purpose of necessity.

Further, given the lack of a statutory definition of the element “operate,” it

seems unreasonable to focus on Appellant’s statement that she did not “think I was

operating [the car].” Applicant’s defensive evidence, regardless of any

inconsistencies in her own testimony, provided the means for the jury as the arbiter

of facts to reasonably infer the elements of the offense. Appellant’s admission that

she was trying to move the vehicle, even if the vehicle didn’t “go,” satisfies the MACIEL ― 11

confession-and-avoidance requirement, regardless of Appellant’s personal

definition of whether or not she legally “operated” the vehicle. Therefore, the

defendant has satisfied her burden of confession and avoidance. See Juarez, 308

S.W.3d at 405-06.

Conclusion

We conclude that the totality of Appellant’s defensive evidence satisfied the

confession-and-avoidance requirement, even if Appellant was incorrect about

whether she had legally “operated” the vehicle. The court of appeals erred by

holding to the contrary. Accordingly, we reverse the judgment of the court of appeals

and remand the case for a harm analysis.

DELIVERED: October 6, 2021

PUBLISH