Texas Stamp


PD-1130-19 11/04/2020

(1) “The Fort Worth Court’s strict interpretation of the ‘confession and avoidance’ doctrine ignored the context of Appellant’s actions and admissions, and further undermined established precedent from this Court.”

(2) “This Court should reaffirm the continued vitality of Martinez v. State, 775 S.W.2d 645 (Tex. Crim. App. 1989).”

(3) “When analyzing confession and avoidance, a court should view the admissions and the actions of the defendant within the context of the entire episode and not focus myopically on the moment of the defendant’s final criminal act.”

Rodriguez shot a man during a brawl at a Cowboy’s game. The man died and Rodriguez was charged with murder. At trial, Rodriguez testified that he saw his brother getting assaulted and retrieved a pistol. He pulled the victim from atop his brother, put him in a headlock, and held a gun to his neck. According to Rodriguez, someone in the crowd pulled his arm, causing the gun to discharge. Rodriguez was “in shock” because he didn’t understand why the pistol “went off.” At the charge conference, Rodriguez requested an instruction on self-defense, defense of another, and necessity. These were all denied. The jury convicted.

On appeal, Rodriguez argued it was error to deny the defensive instructions. The court of appeals affirmed. It explained that, as confession-and-avoidance defenses, all three defenses require the defense to substantially admit the elements. Rodriguez was not entitled to the defenses because he insisted the shooting was unintentional and accidental. The court of appeals acknowledged Martinez is cited as authority that a defendant may deny intent and still be entitled to a self-defense charge. After raising some doubt whether Martinez remains good law, it held Rodriguez’s testimony was distinguishable since he also did not admit the underlying assaultive acts and in fact carefully avoided taking ownership of the lethal act.  

Rodriguez argues the court of appeals too narrowly interpreted both the confession-and-avoidance doctrine and his testimony. He points to Martinez’s factual congruence—a defendant claiming that someone grabbed his arm and caused the gun to accidentally discharge—and his testimony that the only way the gun would have discharged was if his finger was on the trigger. He contends a reviewing court should not look for any particular words but only whether a jury could “reasonably infer” an admission to the conduct. He argues Gamino v. State, 537 S.W.3d 507 (Tex. Crim. App. 2017), reaffirmed Martinez. He also contends that, to the extent confession and avoidance continues to operate, admitting criminal acts subsumed within the charged offense (in his case, assault by threat with a deadly weapon) should be sufficient to warrant a defensive instruction. Finally, he argues that the court of appeals erred in focusing only on the critical moment of the shooting, rather than viewing his admissions in the context of all his actions.

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