Did the court of appeals improperly substitute its own judgment for a jury’s that was never given the opportunity with proper instruction?
The court of appeals’s harm analysis did not consider the unlikelihood that the jury would have reached the necessity issue given the implausibility of the testimony supporting it when viewed against the record as a whole.
An officer found Maciel in the driver’s seat of a car stopped in a lane of traffic. She told him she had been driving. The engine was on and Maciel was attempting unsuccessfully to change gears. Her BAC was over three times the legal limit. She was so drunk that she thanked the officer for arresting her.
At her DWI trial, Maciel claimed for the first time that her brother drove the car to that point before getting sick, and that she got behind the steering wheel and attempted to move the car to safety but was unable to. She testified, “I couldn’t get the car to move, so I wasn’t driving. I don’t think I was operating it.”
The judge denied her a necessity defense instruction because necessity is a confession-and-avoidance defense (requiring some admission of the conduct) and Maciel denied that she had been operating the vehicle. In closing, Maciel continued to argue her primary defense that the State failed to prove the “operating” element.
Following Maciel’s conviction, the court of appeals initially affirmed the trial court’s decision to deny the necessity charge, but the Court of Criminal Appeals reversed. It held that Maciel was entitled to the instruction because the jury could reasonably infer from her testimony that she had been operating the vehicle and did so because she believed it was immediately necessary to avoid imminent danger (and that belief was reasonable). On remand to consider harm, the court of appeals (over a dissent) found the error was harmless because (1) as a matter of law, it was unreasonable to conclude that someone as intoxicated as Maciel could have formed a sincere belief that operating the car in her condition was reasonable; (2) there was no evidence of imminent harm because there was no traffic on the road at that time of night; and (3) the risk of an intoxicated person moving the vehicle was at least as great as the harm of leaving it there.
Maciel argues that the court of appeals has again substituted its judgment for the jury’s, this time on harm. Like the dissenting justice, she maintains that court of appeals could not have found the evidence insufficient as a matter of law when the Court of Criminal Appeals said it was enough to raise a jury issue. She also argues that the court of appeals’s decision precludes application of the necessity defense to DWI. In determining that no rational juror could find there was imminent harm, the court of appeals ignores the inherent danger of even one vehicle approaching the parked car in the middle of a darkened road. Finally, she contends that factoring into harm the defense’s failure to argue necessity in closing argument essentially requires attorneys to argue jury nullification.
The State does not dispute that there are flaws in the court of appeals’s reasoning but asserts that its conclusion was correct: not submitting necessity was harmless. It explains that while a jury could find that the desirability and urgency of avoiding the harm of leaving the car in the road “clearly outweigh[ed]” the risk of her highly intoxicated driving, it was not likely. It also argues that the jury likely never would have reached the necessity question because it would not have believed Maciel’s belated claim that she had not driven to the point where the car stopped in the road. From the outset, the State’s theory and the officer’s video of his interaction with her was about her driving to that point, not about her technically driving when she was manipulating the gears. While giving credence to Maciel’s unlikely claim was proper when the issue was whether to grant an instruction, it was not when assessing harm.