Opinion
NUMBER 13-18-00586-CR
10-11-2023
Bethany Grace MACIEL, Appellant, v. The STATE of Texas, Appellee.
ATTORNEY OF RECORD FOR THE APPELLANT: Jacob Spiegelhauer, James & Reynolds, 1716 Briarcrest Dr., Suite 505, Bryan, TX 77802-2794. ATTORNEYS OF RECORD FOR THE APPELLEE: Earl Gray, George David Higginson, Brazos County Attorney’s Office, 300 E. 26th St., Ste. 1300, Bryan, TX 77803-5361, John Messinger, Stacey M. Soule, Office of the State Prosecuting Attorney, P.O. Box 13046, Capitol Station, Austin, TX 78711-3046.
On appeal from the County Court at Law No. 1 of Brazos County, Texas, Hon. Amanda Matzke, County Judge.
ATTORNEY OF RECORD FOR THE APPELLANT: Jacob Spiegelhauer, James & Reynolds, 1716 Briarcrest Dr., Suite 505, Bryan, TX 77802-2794.
ATTORNEYS OF RECORD FOR THE APPELLEE: Earl Gray, George David Higginson, Brazos County Attorney’s Office, 300 E. 26th St., Ste. 1300, Bryan, TX 77803-5361, John Messinger, Stacey M. Soule, Office of the State Prosecuting Attorney, P.O. Box 13046, Capitol Station, Austin, TX 78711-3046.
Before Justices Benavides, Tijerina, and Pena
OPINION ON REMAND
Opinion on Remand by Justice Tijerina
This case is on remand from the Texas Court of Criminal Appeals. On direct appeal, we affirmed the trial court’s denial of a necessity instruction on the basis that appellant Bethany Grace Maciel did not admit to committing the offense of driving while intoxicated (DWI); thus, she was not entitled to the instruction. See Maciel v. State, No. 13-18-00586-CR, 2020 WL 4035513 (Tex. App.—Corpus Christi–Edinburg 2020) (mem. op., not designated for publication), rev’d, 631 S.W.3d 720 (Tex. Crim. App. 2021). On October 6, 2020, the Texas Court of Criminal Appeals reversed our judgment and remanded the matter so that we could conduct a harm analysis regarding the trial court’s failure to provide the jury with a necessity instruction. See Maciel v. State, 631 S.W.3d 720, 726 (Tex. Crim. App. 2021). We affirm.
A jury convicted Maciel of DWI with an alcohol concentration level of 0.15 or more, a Class A misdemeanor. See Tex. Penal Code Ann. § 49.04(d). The trial court assessed punishment at twenty days in jail and a $2,500 fine.
Maciel specifically argues in her brief that the trial court's ruling constrained her ability to argue necessity in her closing argument.
This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a docket-equalization order issued by the Supreme Court of Texas. See Tex. Gov’t Code Ann. § 73.001.
The majority cites extensively to Villarreal v. State, which, unlike this case, was considered under the more stringent egregious harm standard and did not involve the complete omission of a confession and avoidance instruction. See 453 S.W.3d 429, 430 (Tex. Crim. App. 2015).
I. B ackground
On January 31, 2016, Maciel, her brother Jonathan, and his wife were coming back from a night out drinking at a bar in Northgate (a local complex in College Station). It was undisputed that all three were intoxicated.
Maciel’s blood draw revealed her BAC was .234 g/100mL.
At trial, Officer Philip Shaw with the Texas A&M University Police Department testified that around 12:55 a.m., he located Maciel's vehicle stopped in the middle lane of traffic. He made contact with Maciel in the driver’s seat while the engine was still running, and he smelled a burning mechanical odor emanating from the vehicle. After failing field sobriety tests (SFSTS), Maciel was arrested for DWI.
Maciel requested that the trial court instinct the jury bn the defense of necessity. The State responded that Maciel could not receive the instruction that she was driving while intoxicated out of necessity because she argued that she was not operating the vehicle. The trial court denied Maciel’s request. On appeal, we held that the trial court did not err in refusing the jury charge on necessity because Maciel’s defense was that she did not operate the vehicle. The court of criminals appeals determined that Maciel was nevertheless entitled to the instruction because "a jury could reasonably infer that [Maciel] operated a motor vehicle while intoxicated" without an admission from her based on the "totality of [her] defensive evidence," which included Officer Shaw’s testimony and his body cam video. Maciel, 631 S.W.3d at 725. We now conduct a harm analysis.
II. S cope of R eview
The court of criminal appeals concluded that Maciel’s "testimony was sufficient to admit commission of DWI," and that "a jury could reasonably infer that [Maciel] operated a motor vehicle while intoxicated because she reasonably believed that doing so was immediately necessary to avoid imminent danger." Id. The dissent appears to conclude that because the court of criminal appeals found the evidence sufficient to raise the affirmative defense of necessity, that same evidence must be sufficient to find harm under the law of the case doctrine. However, the issue of whether Maciel was harmed by the trial court’s denial of the necessity instruction was not properly before the Court. See id. The aforementioned statements were limited to the narrow issue of whether she was entitled to a necessity instruction. See id. Therefore, we cannot conclude that the high court has already determined that the record contains sufficient evidence to find actual harm because a court’s review for error in the context of a denial of a necessity instruction cannot substitute for a court’s review for harm. See Campbell v. State, 664 S.W.3d 240, 254 (Tex. Crim. App. 2022) (providing that a harm analysis requires a consideration of the full Almanza factors in view of the totality of the record); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g) (setting out how we analyze harm in jury charge error).
[1–5] In assessing whether Maciel was entitled to the instruction, the Court viewed the evidence in the light most favorable to the requested instruction, as it was required to do based on extensive authority. See Rodriguez v. State, 629 S.W.3d 229, 231 (Tex. Crim. App. 2021) (Rodriguez I); Dugar v. State, 464 S.W.3d 811, 821–22 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd). A defendant is entitled to an affirmative defense when a defendant shows the "minimum quantum of evidence necessary to support a rational inference." Rogers v. State, 664 S.W.3d 843, 849 (Tex. Crim. App. 2022). However, the pertinent authority on assessing whether a defendant is harmed by the trial court’s failure to include an instruction in the jury charge requires us to apply the test as articulated in Almanza. See 686 S.W.2d at 171. This test does not require the Court to view the evidence in the light most favorable to the defense. See id. Thus, while evidence may support a conclusion that the defendant is entitled to an affirmative defense, we disagree with the dissent that the "minimum quantum of evidence" in assessing error automatically triggers a finding of harm. See id. (an erroneous jury charge does not result in automatic reversal of a conviction); see also Fox v. State, No. 13-03-230-CR, 2006 WL 2521622, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 31, 2006, pet. ref'd) (mem. op., not designated for publication) ("An erroneous or incomplete jury charge, however, does not result in automatic reversal of a conviction."). Simply put, while a "minimum quantum of evidence" may be sufficient to entitle a defendant to an affirmative defense instruction, it may not be sufficient to warrant the finding of harm under Almanza. See Maciel, 631 S.W.3d at 726 (Newell, J., concurring) ("When conducting a harm analysis, the reviewing court makes its own assessment as to what degree of likelihood exists as to the prejudicial or non-prejudicial impact of a particular error."). If the trial court’s failure to include a necessity defense in the jury charge clearly or plainly harmed Maciel, the Court of Criminal Appeals would have reached the issue under the theory of judicial economy. See Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020) (stating that ordinarily the Court would not reach an issue the appellate court did not address "if the resolution of the issue is ‘clear’ or ‘plain,’ then judicial economy justifies this Court in reaching the issue in the first instance"); Davison v. State, 405 S.W.3d 682, 691–92 (Tex. Crim. App. 2013) (finding that the correct resolution of harm analysis was "clear," so judicial economy justified this Court in addressing it rather than remanding to the court of appeals); Johnston v. State, 145 S.W.3d 215, 224 (Tex. Crim. App. 2004) ("plainly harmless" error could be reviewed in first instance by this Court). Because the court of criminal appeals did not conduct a harm analysis and did not hold that Maciel was harmed by the denial of a necessity instruction, we disagree with the dissent that we are constrained by the law of the case doctrine. See State v. Swearingen, 424 S.W.3d 32, 38 (Tex. Crim. App. 2014). Accordingly, we will conduct a harm analysis—as we were instructed to do. See Rodriguez v. State, 524 S.W.3d 389, 391 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) (Rodriguez II) ("Although the absence of an instruction for a confession-and-avoidance defense, such as necessity or self-defense, is often harmful because the appellant admits all elements of the offense, we must always perform a record-specific analysis for harm.").
III. S tandard of R eview
[6–10] When jury charge error is preserved at trial, we must reverse if the error caused some harm. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013); Almanza, 686 S.W.2d at 171. "Some harm" means actual harm and not merely a theoretical complaint. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012). Although there is no burden of proof associated with the harm evaluation, reversal is required if the error was calculated to injure the defendant’s rights. Reeves, 420 S.W.3d at 816. Failure to instruct on a confession-and-avoidance defense is rarely harmless "because its omission leaves the jury without a vehicle by which to acquit a defendant who has admitted to all the elements of the offense." Rogers v. State, 550 S.W.3d 190, 192 (Tex. Crim. App. 2018). But when "a record reveals a risk of harm that is so small that it may properly be characterized as not ‘remotely significant,’ or where the risk of harm is ‘almost infinitesimal,’ any harm resulting from the error is only theoretical harm." French v. State, 563 S.W.3d 228, 235–36 (Tex. Crim. App. 2018).
[11, 12] "The harm evaluation entails a review of the whole record, including the jury charge, contested issues, weight of the probative evidence, arguments of counsel and other relevant information." Rogers, 550 S.W.3d at 192; Almanza, 686 S.W.2d at 171. "In ascertaining whether there is harm, appellate courts ‘focus on the evidence and record to determine the likelihood that the jury’ would have concluded that the defense applied had it been given the instruction." Chase v. State, 418 S.W.3d 296, 301 (Tex. App.—Austin 2013), aff'd, 448 S.W.3d 6 (Tex. Crim. App. 2014) (citing Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013)).
IV. N ecessity
[13, 14] Section 9.22 of the penal code provides the basic two-prong test that a defendant must satisfy to prevail on the defense of necessity. See Tex. Penal Code Ann. § 9.22. First, a defendant must present evidence that the defendant reasonably believed the conduct is "immediately necessary to avoid imminent harm." See id. § 9.22(1); Pennington v. State, 54 S.W.3d 852, 857 (Tex. App.—Fort Worth 2001, pet. ref'd). "Harm is imminent when there is an emergency situation and it is ‘immediately necessary’ to avoid that harm." Pennington, 54 S.W.3d at 857. "Imminent" means "something that is immediate, something that is going to happen now." Kelso v. State, 562 S.W.3d 120, 132 (Tex. App.—Texarkana 2018, pet ref'd) (internal quotations omitted). Second, the statute further requires the desirability and urgency of avoiding the harm to "clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct." Tex. Penal Code Ann. § 9.22(2).
V. D iscussion
Maciel does not refer to any of the Almanza factors, does not cite the two-prong test set out in § 9.22, and does not apply any caselaw to the facts in this case to support the position that the trial court’s error harmed her. See Tex. R. App. P. 38.1 (i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authority and to the record."). Nonetheless, we will address the factors below.
A. Contested Issues and Weight of the Probative Evidence
We must review the elements in § 9.22 to determine whether Maciel was harmed from the absence of a necessity instruction. See Rodriguez II, 524 S.W.3d at 393 (reviewing the elements of § 9.22 for a harm analysis after assuming without deciding that the trial court erred in denying a necessity instruction); see also Fox, 2006 WL 2521622, at *3 (explaining that in our harm analysis we must consider whether the "appellant presented evidence that he reasonably believed that a specific harm was imminent"). The jury should have been instructed that the unlawful conduct was justified if: (1) the actor reasonably believed the conduct was 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. Rodriguez II, 524 S.W.3d at 393; see Tex. Penal Code Ann. § 9.22(1).
[15] Regarding the first factor in § 9.22, we analyze whether there was evidence that Maciel reasonably believed her conduct was "immediately necessary to avoid imminent harm," such that Maciel was harmed. See Tex. Penal Code Ann. § 9.22(a). The evidence supporting this factor is the following: Maciel testified that she was scared because all three intoxicated individuals were stopped in the middle of the road, she was worried about her brother, and she felt like it was a dangerous situation. She then climbed over from the passenger’s seat to the driver’s seat to try to move the car to safety.
i) "Reasonable Belief" Unreasonable as a Matter of Law
[16] "[A] defendant’s sincere belief that his conduct is immediately necessary to avoid imminent harm is unreasonable as a matter of law if the undisputed facts demonstrate a complete absence of ‘immediate necessity’ or ‘imminent harm’ as legally defined." Murkledove v. State, 437 S.W.3d 17, 25 (Tex. App.—Fort Worth 2014, pet. denied). Maciel clarified that she did not remember what she was thinking that night; she did not feel like she was "all right to drive at that point"; she did not fully understand what was going on; she did not remember taking the SFSTs; the details of that night were "fuzzy"; and she did not know that she did anything wrong. Maciel stated that she was "having trouble pulling over," and she even attempted to switch gears during the traffic stop, which Officer Shaw instructed her not to do. When Officer Shaw asked Maciel several times where she was coming from or where she was traveling, Maciel could not recall. In addition, Maciel could not provide Officer Shaw with her insurance, mistakenly handing him her registration instead. Officer Shaw questioned whether she had suffered any injuries, and Maciel responded, "um a little bit, but not really." When Officer Shaw asked what kind of head injuries she suffered, Maciel held her hand up to her head, patted her head, and stated, "I had one in my head."
Maciel admitted she had "one or two drinks," but she could not recall where, and when Officer Shaw questioned when Maciel last consumed alcohol, she first stated "possibly a few hours ago," which according to Maciel was "before twelve noon" even though it was a little after midnight. In the video, some of her statements are incoherent, she cannot stand still, and she does not seem to comprehend what Officer Shaw is requesting when she is undergoing the SFSTs. Maciel was unable to state the hour, and she thought it was around 3 a.m. When Officer Shaw asked Maciel if she had any drugs, Maciel responded, "No, I behaved," and swore she only had one or two drinks.
Maciel further admitted she should be wearing corrective lenses although she was not.
Officer Shaw described Maciel as having a blank stare on her face from time to time as she was "trying to figure out where she was at and looking down the road," and the video corroborates his version of events. Officer Shaw had to reinstruct her at least twelve times to follow his directions because it appears she was unable to understand his simple instructions. In fact, Maciel thanked Officer Shaw for not placing her under arrest even after she was in handcuffs. Maciel emphasized "she did not know what was going on." See Tex. Penal Code Ann. § 1.07(42) ("A ‘reasonable belief is one that would be held by an ordinary and prudent person in the same circumstances as the actor."). Therefore, because she did not have a normal use of her mental or physical faculties, we cannot conclude that the evidence supports a finding that Maciel had a "reasonable" belief that she was in imminent danger excusing her drunken driving. See Tex. Penal Code Ann. § 1.07(42); see also Fitzgerald v. State, 782 S.W.2d 876, 885 (Tex. Crim. App. 1990) (providing that reasonableness is determined from the defendant’s view-point at the time of the conduct).; cf. Fox, 2006 WL 2521622, at *3 ("Viewed from appellant’s standpoint at the time he acted, we find appellant presented evidence that he reasonably believed his conduct was immediately necessary to avoid the imminent harm."). Maciel could not have had a "sincere belief that h[er] conduct [was] immediately necessary to avoid imminent harm," because such a belief under these facts is "unreasonable as a matter of law," in light of her own statements at trial and her disorientation at the scene. Therefore, no rational person could have determined that Maciel "reasonably believed" her conduct of driving while intoxicated was immediately necessary, such that Maciel was harmed by the omission of a necessity instruction. See Fitzgerald, 782 S.W.2d at 885.
ii) Imminent Harm Unsupported by Evidence
[17] Moreover, the undisputed facts demonstrate a complete absence of "immediate necessity" or "imminent harm" as that term is legally defined because there was no evidence of anything about to "happen now." Sec Kelso, 562 S.W.3d at 132. We recognize the potential danger posed by a stopped car in the road at night; however, Officer Shaw testified: "typically, Northgate is quite dead on a Sunday night." He further explained that there was no traffic on the road at this particular time. Officer Shaw testified that at times he prefers to move intoxicated individuals off the roadway to conduct sobriety tests, however, on this particular night he did not think it was necessary. [18] "Imminent harm must be shown by affirmative evidence." Kelso, 562 S.W.3d at 132; see also Daugherty v. State, No. 06-18-00167-CR, 2019 WL 2195256, at *1 (Tex. App.—Texarkana May 22, 2019, pet. ref'd) (mem. op., not designated for publication) ("[A] necessity defense requires there to be, among other proof, evidence of a specific imminent harm on the occasion in question."). Maciel did not testify that she was compelled to drive while intoxicated due to a threat of harm, much less an immediate threat of harm. See Tex. Dep't. of Public Safety v. Moore, 175 S.W.3d 270, 275 (Tex. App.—Houston [1st Dist.] 2004, no pet.) ("The necessity defense lasts only as long as the actor reasonably believes criminal conduct is necessary to avoid imminent harm."); see also Stefanoff v. State, 78 S.W.3d 496, 501 (Tex. App.—Austin 2002, pet. ref'd) ("After adducing evidence of imminent harm, a defendant must next establish facts indicating a reasonable belief that the criminal conduct was immediately necessary to avoid the imminent harm."). No evidence was offered to refute Officer Shaw’s evaluation of the necessity of moving the vehicle off the roadway especially when Maciel reiterated that she "was very confused," and "wasn’t really sure what was going on." See Kelso, 562 S.W.3d at 132; Rodriguez v. State, No. 0247-00371-CR, 2022 WL 2840153, at *2 (Tex. App.—Fort Worth July 21, 2022, pet. ref'd) (mem. op., not designated for publication) (Rodriguez III) (finding ham where the defendant testified that using deadly force "was immediately necessary to defend" himself and others). In fact, Maciel admitted that there was no traffic on the road, and she agreed "that with very much more traffic on the road, [the situation] could have been really tragic." Cf. Pennington, 54 S.W.3d at 858 (concluding as a matter of law that a thirteen-year-old child’s possession of drugs was immediately necessary because the child was about to view his father use drugs in his own home and according to the child, the danger was impending and "was about to occur"). Therefore, we conclude that there "was [no] evidence of a specific imminent harm on the occasion in question." See Stefanoff, 78 S.W.3d at 501 ("We do not discount appellant’s illness; we find, however, that none of his testimony produces evidence of any conduct that would lead a reasonable person to believe a specific harm was imminent."); Daugherty, 2019 WL 2195256, at *1.
The dissent states that we focus "on evidence contrary to [Maciel’s] necessity defense and every perceived weakness and inconsistency in her testimony." But the court of criminal appeals did the very same when conducting an analysis for some harm in Braughton: "To establish harm … the evidence would need to present some plausible basis …. But the evidence … viewed in its totality, contradicts the plausibility of such a scenario." Braughton v. State, 569 S.W.3d. 592, 616 (Tex. Crim. App. 2018); see also Villarreal v. State, 453 S.W.3d 429, 439 (Tex. Crim. App. 2015) (analyzing for egregious harm and concluding that, "[w]ith respect to the relative strength of appellant’s defensive evidence, we observe that, save for appellant’s own statements to police, none of the other evidence presented at trial supported a justification defense."). Similarly, we conclude that the evidence cited above, when viewed in its totality, contradicts the plausibility of driving while intoxicated under these circumstances when there is a lack of specific and imminent harm. See Braughton, 569 S.W.3d at 616; see also Villarreal, 453 S.W.3d at 432 (concluding that even if the jury had received the omitted instruction, it "would not likely have resulted in a different verdict because of the weakness of appellant’s defensive evidence in comparison to other evidence in the record refuting the evidence"); cf. Hill v. State, 765 S.W.2d 794, 797 (Tex. Crim. App. 1989) (finding that appellant’s testimony regarding his defense was a "key issue" in his case). Therefore, this factor weighs against a finding of harm.
B. Arguments of Counsel
[19] On appeal, Maciel states she could not argue necessity because she was denied the instruction. The dissent concludes that "it would have been improper for [Maciel] to make a necessity argument to the jury," and "we should not penalize [Maciel] to giving due respect to the trial court’s ruling." However, it is well established that "actual harm stemming from the denial of the instruction" is assessed pursuant to Almanza, and we are bound to follow this precedent. See Braughton, 569 S.W.3d. at 611 (considering the analysis of the arguments of counsel in a harm analysis and finding that the arguments of counsel weighed against a finding that defendant suffered harm as a result of the failure to give a necessity instruction); French, 563 S.W.3d at 237 ("Whether jury charge error is preserved or not, the degree of harm resulting from the error must be measured in light of all four factors identified in Almanza").
In Juarez, the court of appeals examined the parties’ closing arguments observing that the State argued—on at least three occasions—that there was nothing in jury charge "nothing at all, about any legal excuse, any legal excuse or any legal justification" for appellant’s conduct. Juarez v. State, No. 12-08-00009-CR, 2009 WL 768595, at *6 (Tex. App.—Tyler March 2009), aff'd, 308 S.W.3d 398, 399 (Tex. Crim. App. 2010). The court of appeals further observed that in closing arguments, appellant "clearly repeated" that he bit the officer to get the officer off appellant’s back because appellant was suffocating. Id. The appellate court stated:
Appellant clearly admitted biting [the officer’s] finger, but the State argued that there was no legal justification for his action. Because the jury charge did not include a necessity defense, the jury was not free to interpret the evidence in such a way that supported a finding of necessity if they believed Appellant’s justification defense.
Id. Thus, in conducting an Almanza harm analysis after the erroneous omission of a necessity instruction, the Juarez court examined both parties’ closing arguments, and we are persuaded by the lower court’s harm analysis on remand. Id.
In Rodriguez III, on remand for a harm analysis, the appellate court examined the parties’ closing arguments, noting that the necessity defense "found [its] way into both the State’s and Rodriguez’s closing arguments." Rodriguez III, 2022 WL 2840153, at *2. Specifically, "[c]ounsel's arguments branched off into elements of Rodriguez’s justification defenses." Id. at *3. Furthermore, the appellate court noted that the State’s rebuttal also addressed the necessity elements when it argued Rodriguez’s defense was incompatible with necessity or self-defense because Rodriguez was afraid he was going to be murdered, yet he did not call for a police officer or drive off in his Hummer. See id. Instead, he walked to the Hummer, retrieved his gun, and came back to the scene even though Rodriguez "want[s] you to believe he was in fear for his life." Id. at *4.
In Villarreal, the jury instruction omitted the statutory presumption of reasonableness, and the appellate court found egregious harm because the matter of reasonableness was a "hotly contested issue at trial." 453 S.W.3d at 432. The court of criminal appeals, however, concluded that the appellate court performed an "incom- plete review of the record and the arguments of counsel." Id. at 431. According to the high court, the appellate court erroneously determined that "the omission of the instruction egregiously harmed appellant by depriving him of his sole defense at trial" because "a close examination of appellant’s trial counsel’s arguments" suggests that "the omission of the instruction affected only appellant’s secondary defensive theory" and therefore the omitted instruction did not touch upon a "vital aspect" of his case. Id. at 440. "In his closing arguments to the jury, rather than advancing appellant’s justification defense, counsel highlighted the inconsistencies in witness testimony for the purpose of undermining the State’s case against appellant." Id. at 441. "In defense counsel’s sole reference to appellant’s statements" "asserting self-defense, he sought to downplay the probative value of those statements." Id. Instead, the primary focus of appellant’s theory was that the State failed to meet essential elements of the crime. See id. The Court concluded that the omission had not vitally undermined "appellant’s sole defense" because "defense counsel relied on that defense as an alternative to his other defense." Id.
We find the issues in Juarez and Rodriguez III analogous to the issues here, we are persuaded by their analyses of the parties’ closing arguments on remand for a harm analysis, and we cannot agree with the dissent that this case "does not lend itself to that kind of analysis." See Juarez, 2009 WL 768595, at *6; Rodriguez III, 2022 WL 2840153, at *4.
i) Maciel disavows necessity
[20] In her closing argument, Maciel appeared to disavow the necessity defense by stating "We are not here to say that Miss Maciel didn’t necessarily make some mistakes, okay … She made the mistake of getting in the vehicle with her brother." See Rodriguez II, 524 S.W.3d at 392. Rather than suggest that the jury consider her conduct proper because she believed it was immediately necessary to avoid imminent harm and the urgency of avoiding the harm clearly outweighed the harm sought to be prevented, Maciel rejected the necessity of her actions in that moment, arguing instead that she "shouldn’t have had as much to drink to impair her judgment"; she was making "poor decisions … all the way around"; and she "should have left with her friend … when her friend offered to take her home." See Villarreal, 453 S.W.3d at 441–42 ("Because the omitted presumption-of-reasonableness instruction pertains only to the question of the reasonableness of an actor’s belief that the use of deadly force was immediately necessary, and because the reasonableness of appellant’s belief was not at the center of either defense counsel’s or the State’s arguments, we conclude that this factor weighs against a finding of egregious harm."). Like Villarreal, Maciel "relied on that [necessity] defense as an alternative to h[er] other defense that the State’s evidence failed to prove [Maciel’s] culpability beyond a reasonable doubt on the basis of the weakness in the State’s evidence" because she did not operate the vehicle. Id. at 451.
The central issue in closing arguments was whether Maciel operated the vehicle—not whether it was necessary for her to do so because of a specific imminent or impending danger:
• "She simply could not figure out how to get the car moving, and that’s what you saw … that’s why it’s smoking. That’s why the engine is smoking";
• "She was not operating the vehicle because she couldn’t"; • There was "reasonable doubt that she drove or didn’t drive from Northgate to wherever it was parked";
• There was reasonable doubt that "sitting behind the wheel with the engine on" constitutes "operating a vehicle";
• "She simply could not operate the vehicle, and nobody can tell you different";
• "Do you believe that when she couldn’t move the vehicle that constituted operating a vehicle, and we say absolutely not";
• "She wasn’t trying to operate the vehicle to drive it";
• "She did not drive the vehicle, okay?";
• "In other situations, you can infer, you know, driving from the circumstances. Again, you can’t infer driving in these circumstances";
• "All we can infer is that she was sitting behind the wheel with the engine on";
• "That vehicle did not move from that place, and nobody can tell you different";
• "You have to ask yourself, you know, what is the law really designed for, okay? It’s not designed for somebody sitting there in the vehicle, unable to move it, unable to operate it."
Unlike Juarez, Maciel did not present a justification defense in her closing argument which the jury was prevented from believing had they been provided a necessity instruction. See 2009 WL 768595, at *6. There are no statements by Maciel during her closing argument about her belief that her conduct was necessary to avoid an impending danger or that the urgency of avoiding the harm clearly outweighed the harm sought to be prevented. Contrary to Juarez where the State repeatedly asserted there was no legal justification for his actions, here the State did not refute a legal justification or even broach a rejection of necessity in any manner. Id.; see also Rodriguez II, 524 S.W.3d at 392 ("But nothing from the arguments of counsel at trial would lead to the conclusion that his defensive theory was built upon the defense of necessity."); cf. Rogers I, 550 S.W.3d at 193 (finding that appellant was harmed from the denial of a necessity instruction where the trial court enforced a motion in limine throughout trial, "and the jury had no opportunity to consider or reject necessity … because the trial court’s [motion in limine] prohibited any mention of it" in voir dire, opening statement, during evidence, or argue it in closing). Unlike Rodriguez III, Maciel did not branch off into the elements of necessity in her closing arguments, and the State did not refute any necessity elements in its closing or rebuttal. See Almanza, 686 S.W.2d at 171 (requiring us to analyze the arguments of counsel in our harm analysis); Cf. Rodriguez III, 2022 WL 2840153, at *3 (finding some harm in the omission of the necessity instruction because "[e]lements of Rodriguez’s justification defenses found their way into both the State’s and Rodriguez’s closing arguments."). Therefore, because the parties did not argue necessity to the jury in closing arguments, we conclude this factor weighs against a finding of harm.
At most, Maciel asked the jury to consider motive when counsel argued, "She wasn't trying to operate the vehicle to drive it. She was trying to operate the vehicle to get it off the road. That matters." See id.
C. Other Relevant Information
i) Voir Dire & Opening Statements
[21] Maciel does not refer us to any portions of voir dire where she questioned the jury about her actions being necessary to avoid imminent harm or about the urgency of the situation outweighing the harm. See Almanza, 686 S.W.2d at 171 (requiring us to review voir dire in our harm analysis); see also Rodriguez III, 2022 WL 2840153, at *2 (finding that the State and defense counsel addressed self-defense during voir dire, and repeated the elements of self-defense as set out in the penal code, such that venire members even sought clarification); see also Cornet v. State, 417 S.W.3d 446, 455 (Tex.Crim.App. 2013) ("Other relevant information in the record suggests that appellant’s defensive theory at trial was focused on his argument that the State failed to prove" an essential element of the charge "rather than on the medical-care defense"). In her opening statement, Maciel claimed that she climbed into the driver’s seat "with the intention of moving the vehicle off the road, moving the vehicle to safety" and that she was "trying to get them off the road." To the extent Maciel argues these statements attest to both necessity defense prongs, "more than a generalized fear of harm is required to raise the issue of imminent harm." Stefanoff, 78 S.W.3d at 501. Maciel did not return to this topic, and she never articulated why she felt that she needed to move her car. She neither cited any dangerous condition or harm nor as previously set out above presented evidence that there was an emergency making it immediately necessary for her to move the vehicle to avoid that harm or dangerous condition. See Pennington, 54 S.W.3d at 857; cf. Rodriguez III, 2022 WL 2840153, at *11 (finding harm when defense counsel invoked his justification defense during opening statements, including "The testimony I believe will be that—that [Rodriguez] acted in self-defense").
Additionally, the State did not ask the jury to reject a theory that the conduct was immediately necessary to avoid imminent harm. See Villarreal, 453 S.W.3d at 440 ("Because the omission of the instruction affected only appellant’s secondary defensive theory, we do not find that the omitted instruction touched upon a ‘vital aspect’ of his case."); see also Cornet, 417 S.W.3d at 455 ("Because he did not question the jury about the defense during voir dire or invoke the defense in his opening statement, and because he made comments suggesting to the jury that appellant’s conduct was a mistake and inappropriate, trial counsel’s request for the medical-care defense appears to be an afterthought and does not appear to be the primary focus of his defensive theory at trial."); cf. Rodriguez, 2022 WL 2840153, at *2 (finding some harm because "Rodriguez’s justification defenses were threaded throughout the trial. They appeared everywhere except in the charge"). Neither the State nor Maciel addressed the issue of Maciel’s conduct being immediately necessary to avoid imminent harm. Accordingly, there is no other evidence from which to gauge actual harm.
ii) Not a Split-Second Decision
To prevail on her necessity defense, there needed to be evidence of immediate harm, "something that is going to happen now." Kelso, 562 S.W.3d at 132. Here, there was no evidence that Maciel operated the vehicle due to a "split-second decision," and Maciel did not suggest that she sought to avoid any harm. Her brother vomiting and stopping the vehicle in the middle of the road is not evidence of "a split-second decision … without time to consider the law" that would require her to drive while highly intoxicated and endanger the public and her passengers with the very harm the statute seeks to prevent. See id.; Tex. Penal Code Ann. § 9.22. Her statement that she wanted to get the car to safety does not demonstrate that she had to make a "split-second" decision. See Murkledove, 437 S.W.3d at 25. The only evidence presented regarding the safety of the situation, in which Officer Shaw testified that it was safe for him to conduct SFSTs in the middle of the road, leads to a conclusion that the parked car did not pose any imminent harm. Maciel did not rebut this testimony or provide evidence that she had a reasonable belief that driving with a blood alcohol content of .234 was immediately necessary to avoid said harm. Kelso, 562 S.W.3d at 132 ("A threat of harm at some indefinite time in the future is insufficient to satisfy the requirement of imminence."); Wood v. State, 271 S.W.3d 329, 335 (Tex. App.—San Antonio 2008, no pet) (finding the desirability and urgency of avoiding the harm clearly outweighed the harm sought to be prevented when appellant made the decision to drive away as she was being forcibly pulled from her truck into a dark and desolate street, heard his teeth grinding, and had to make a "split-second" decision to drive away "with no time for reflection"); Cyr v. State, 887 S.W.2d 203, 205 (Tex. App.—Dallas 1994, no pet.) (holding appellant’s belief was unreasonable as a matter of law because there was no evidence of imminent harm); Wilson v. State, 777 S.W.2d 823, 825 (Tex. App.—Austin 1989) (holding appellant’s belief unreasonable because there was no evidence of immediate necessity), aff'd, 853 S.W.2d 547 (Tex. Crim. App. 1993).
iii) Not a Single Defense
In Dugar, the court of appeals found that appellant had only a single defense: self-defense. 464 S.W.3d at 821–22. When the trial court denied the instruction "on appellant’s sole defensive theory," "the jury was given a charge that contained no vehicle with which to acquit." Id. at 822. However, when Maciel’s defensive theory rejected culpability for the offense based on the lack of an essential element of the crime, the jury was not left "without a vehicle by which to acquit" her. Id.; see also Jenkins v. State, 468 S.W.3d 656, 681 (Tex. App.—Houston [14th Dist.] 2015, pet. dism’d) (finding some harm because "Jenkins’s entire defense was based on" his defensive theory, and he presented evidence supporting his defensive theory.).
Again, in Villarreal, the court of criminal appeals did not find egregious harm because "the record indicates that trial counsel did not rely exclusively on [self]-defense." 453 S.W.3d at 433. The Court held that because appellant was the aggressor, and "considering that appellant’s defensive strategy relied upon two theories, only one of which would have been affected by the error, we are persuaded that there is no substantial risk of harm to appellant as a result of the omission of the instruction." Id. at 443. Maciel’s defense did not rest solely on her need to drive while intoxicated due to an imminent danger, so there was no substantial risk of harm to her as a result of the omission. See Guilbeau v. State, 193 S.W.3d 156, 161 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (concluding that appellant suffered some harm without a selfdefense instruction because: (1) "appellant’s entire defense rested on his right to defend himself"; (2) "both the prosecution and appellant discussed the law regarding self-defense during voir dire, and appellant began his voir dire by stating that ‘this case is about self-defense’ "; (3) "appellant pursued the theory of self-defense in his opening statements and introduced testimony on the issue"; and; (4) "the first question posed by the jury was ‘why was the charge of self-defense thrown out?").
iv) "Ordinary standards of reasonableness" preclude driving with a BAC of .234
At trial, Maciel provided no testimony explaining why in this situation—when she was three times over the legal limit and admittedly dazed and confused—it was necessary for her to drive other than her statement she wanted to get the car to safety, which was in response to leading and suggestive questions. See Arnwine v. State, 20 S.W.3d 155, 160 (Tex. App.—Texarkana 2000, no pet.). There was evidence that there was no traffic on the road; Maciel was not involved in a car accident; there was no ongoing medical emergency; no one was involved in any physical altercation; and no one was suffering duress from any physical threat. Cf. Gibbons v. State, 874 S.W.2d 164, 165 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (rejecting the necessity defense as a matter of law when appellant drove while intoxicated to pick up his wife while she threatened to commit suicide but "any possible justification for his conduct evaporated" when he reentered his vehicle); Roark v. State, No. 01-09-00428-CR, 2020 WL 5823152, at *6 (Tex. App.—Houston [1st Dist.] Oct. 1, 2020, no pet.) (mem. op., not designated for publication) (finding harm after the trial court refused a necessity instruction in an evading arrest charge when appellant claimed to have dislocated his shoulder and needed to go to the hospital after he was trampled on and dragged across the street, by activists during a protest described as "complete loss of control" and "mayhem").
According to "ordinary standards of reasonableness," the weight of the evidence is that the risk of moving the vehicle is at least as great as the harm which Maciel was purportedly seeking to avoid, and we must consider the plausibility of the evidence raising the issue. See Villarreal, 453 S.W.3d at 436; see also Sirmans v. State, No. 06-06-00014-CR, 2006 WL 1676208, at *2 (Tex. App.—Texarkana June 20, 2006, pet ref'd) (mem. op., not designated for publication) (finding the trial court did not err in failing to submit a DWI necessity instruction because appellant could have: (1) "and certainly should have[ ] asked for someone else to drive her"; (2) "contacted the officers directly by telephone and discussed the matter"; (3) "walk[ed] from her location"; and (4) "contacted the police by telephone and allowed them to drive to her location"); cf. Roark, 2020 WL 5823152, at *6 ("[A] jury could find that it was reasonable for appellant, who had already been seriously injured in the chaos … to believe that fleeing the scene was immediately necessary to avoid additional imminent harm," and the "urgency of avoiding further injury (or possibly death) clearly outweighed, according to ordinary standards of reasonableness, the harm in appellant’s fleeing law enforcement to avoid being further injured in the mayhem.").
[22] "As a matter of law, when criminal conduct is no longer necessary to avoid imminent harm, the necessity defense evaporates." Moore, 175 S.W.3d at 274. Here, Maciel could have put on the flashers, walked away, and called for assistance. See Arnwine, 20 S.W.3d at 160 (providing that "the existence of lawful alternatives to the commission of a criminal act may preclude a defendant from the defense of justification by necessity"); see also Sirmans, 2006 WL 1676208, at *2 ("[T]here were other, less dangerous options that were certainly not illegal."). Maciel did not cite, and we have not found, any case where a defendant was harmed by the denial of necessity instruction when the defendant did not demonstrate that the urgency of avoiding harm clearly outweighed ordinary standards of reasonableness.
The dissent states that we have invaded the province of the jury, suggesting that a jury may have acquitted Maciel of DWI because it was necessary for her to drive. We agree that it is the province of the jury to acquit Maciel based on the necessity defense if there was some evidence of imminence or urgency, and if according to ordinary standards of reasonableness, it was necessary to do so. But here there was no evidence of any urgency or a danger other than Maciel posing as a danger to herself, her passengers, and other drivers by driving while intoxicated, and according to ordinary standards of reasonableness, a ear sitting idly on the roadway is not a greater risk than a highly intoxicated person who is unaware of the situation around her and who did not state a reason for moving the vehicle other than "moving it to safety." Sec Shafer v. State, 919 S.W.2d 885, 887 (Tex. App.—Fort Worth 1996, pet. ref'd) ("[A] person who voluntarily consumes a large quantity of alcohol before operating a motor vehicle should know that it is only a question of when, not if, the alcohol will impair his or her motor skills."); see also Villarreal, 453 S.W.3d at 437 (concluding that, assessing harm, "the court of appeals erred by failing to consider the relative weakness of the defensive evidence in light of the entire record").
We conclude that the evidence did not demonstrate a plausible basis due to a "reasonable belief" of a specific impending and imminent harm. See Braughton, 569 S.W.3d at 616 ("There is no realistic probability that the jury would have opted to convict appellant of felony deadly conduct had it received an instruction on that offense."). When the evidence is viewed in its totality, it contradicts the plausibility of an acquittal. See id. To extend a finding of harm in this case risks another harm—that of a highly intoxicated driver almost thrice over the legal limit—driving on a public highway, with two other passengers, merely to move the car to the side of the road, when the evidence shows that the intoxicated driver operated the vehicle out of convenience, and there was no evidence that there was an immediate danger. See Moore, 175 S.W.3d at 276 (finding that appellant drove while intoxicated "not as a matter of necessity, but only as a matter of convenience"). There is no reasonable probability that a jury would have opted to acquit Maciel had it received a necessity instruction when Maciel was severely intoxicated, unable to understand the nature of the events around her, there was no evidence of a specific impending and imminent harm, Maciel did not testify that it was necessary to drive, and driving while intoxicated is unreasonable according to the ordinary standards of reasonableness. See Braughton, 569 S.W.3d at 609 (providing that the State must present enough evidence for a jury to (1) find the essential elements of the offense beyond a reasonable doubt and (2) reject the defendant’s self-defense issue beyond a reasonable doubt). Thus, we cannot conclude that "the desirability and urgency of avoiding the harm clearly outweigh[ed], according to ordinary standards of reasonableness, the harm sought to be prevented." Tex. Penal Code Ann. § 9.22(2).
VI. S ummary
In view of the totality of the record before us, we cannot conclude that the error was harmful. See French, 563 S.W.3d at 239 ("[W]here a record reveals a risk of harm that is so small that it may properly be characterized as not remotely significant, or where the risk of harm is almost infinitesimal, any harm resulting from the error is only theoretical harm.") (citations omitted). Therefore, in an analysis based on actual harm rather than theoretical harm, the failure to submit a necessity instruction—when there is no evidence of a specific impending and imminent harm—was not calculated to injure Maciel’s rights. See Rogers, 550 S.W.3d at 192; Villarreal, 453 S.W.3d at 440 ("Even had the jury been properly instructed as to the presumption of reasonableness under Section 9.32(b), we conclude that the presumption was inapplicable to the facts of this case based on the lack of evidence to support the presumption."); Celis v. State, 416 S.W.3d 419, 430 (Tex. Crim. App. 2013). Considering the entire jury charge, the state of the evidence, the argument of counsel and other relevant information, we conclude that the risk here was not "remotely significant" such that Maciel was harmed. See Almanza, 686 S.W.2d at 171; see also Pedregon v. State, No. 08-18-00119-CR, 2020 WL 1149997, at *8 (Tex. App.—El Paso March 10, 2020, no pet.) (mem. op., not designated for publication). Based on the foregoing, we believe these set of facts are distinguishable as "one of the rare cases in which the trial court’s refusal to instruct on a [necessity] defense was harmless." Rogers, 550 S.W.3d at 192. We overrule Maciel’s sole issue.
VII. C onclusion
We affirm the trial court’s judgment.
Dissenting Opinion by Justice Benavides.
DISSENTING OPINION ON REMAND
Dissenting Opinion on Remand by Justice Benavides
In a unanimous opinion, the Texas Court of Criminal Appeals has already determined that, based on the evidence presented at trial, "a jury could reasonably infer that [Maciel] operated a motor vehicle while intoxicated because she reasonably believed that doing so was immediately necessary to avoid imminent danger." Maciel v. State, 631 S.W. 3d 720, 725 (Tex. Crim. App. 2021). Despite this clear holding, the majority goes to great lengths to explain why it believes the same evidence was so weak that no reasonable juror could ever reach that very conclusion. For example, according to the majority, "there was no evidence of a specific impending and imminent harm," and thus, Maciel’s belief that she needed to immediately move the car off the road was unreasonable as a matter of law. While I agree that Maciel’s necessity defense was contested at trial, the high court has already determined that the record contains sufficient evidence to support each element of the defense. Id. Therefore, in assessing actual harm, "we [should] not weigh in on this fact-specific determination, as that is a function reserved for a properly instructed jury." Reeves v. State, 420 S.W.3d 812, 820 (Tex. Crim. App. 2013). Because the majority has invaded the province of the jury as the fact finder, and the record plainly demonstrates that Maciel suffered actual harm, I respectfully dissent.
I. A pplicable L aw & S tandard of R eview
"The Fifth, Sixth, and Fourteenth Amendments to the United States Constitution guarantee the accused in a criminal prosecution the right to ‘a meaningful opportunity to present a complete defense.’ " Rogers v. State, 664 S.W.3d 843, 848–49 (Tex. Crim. App. 2022) ("Rogers II") (quoting Holmes v. South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006)). Accordingly, in Texas, a "defendant is entitled to an instruction on any defensive issued 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." Maciel, 631 S.W.3d at 723 (quoting Celis v. State, 416 S.W.3d 419, 430 (Tex. Crim. App. 2013)). When the defendant preserves a jury charge error at trial, as was the case here, "the reviewing court must reverse if the error caused some harm." Rogers v. State, 550 S.W.3d 190, 192 (Tex. Crim. App. 2018) ("Rogers I"). In other words, "an error which has been properly preserved by objection will call for reversal as long as the error is not harmless." Reeves, 420 S.W.3d at 816 (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)).
This is a "less-stringent standard" than the egregious-harm standard used when the defendant fails to object to the erroneous charge. Id. Neither party carries a burden to prove or disprove harm. Id. Instead, we determine if the record shows that the appellant suffered actual harm by considering the entirety of the evidence, the arguments of counsel, the jury charge as a whole, and any other relevant factors present in the record. Id.
Before turning to the record, it is noteworthy that the Court of Criminal Appeals recently reiterated that "[f]ailure to instruct on a confession-and-avoidance defense is rarely harmless." Rogers I, 550 S.W.3d at 192. The majority indirectly relies on a case, Comet v. State, 417 S.W.3d 446 (Tex. Crim. App. 2013), that the high court has since distinguished as "one of the rare cases in which the trial court’s refusal to instruct on a confession-and-avoidance defense was harmless." Rogers I, 550 S.W.3d at 192 (discussing Comet). The majority avoids any direct comparison between this case and Comet for good reason; as discussed below, Comet presented unique circumstances that do not exist in this case.
II. T he E vidence
As the Court of Criminal Appeals noted, Maciel repeatedly testified that she was scared because her brother had stopped their vehicle in the middle of the road at night and exited the car to throw up. Maciel, 631 S.W.3d at 725. Admittedly intoxicated, she climbed over the console and got behind the wheel for the sole purpose of moving the car to safety in an adjacent parking lot. Id. The Court concluded that this testimony, along with other evidence, was legally sufficient for a jury to determine "that [Maciel] operated a motor vehicle while intoxicated because she reasonably believed that doing so was immediately necessary to avoid imminent danger." Id.
Nevertheless, in reaching the opposite conclusion, the majority posits that we are not constrained by this holding because, unlike the initial error analysis, we are not required to view the evidence in the light most favorable to the instruction when conducting the separate harm analysis. I have found no authority to support the majority’s conclusion that an affirmative defense can be "raised by the evidence" under an error analysis but not a harm analysis. See Rogers II, 664 S.W.3d at 851. Either the evidence is sufficient to raise an affirmative defense, or it is not, and because the Court of Criminal Appeals has already answered that question, we are constrained by the law of the case doctrine from now concluding that there was "no evidence" of Maciel’s necessity defense. See State v. Swearingen, 424 S.W.3d 32, 38 (Tex. Crim. App. 2014) ("Since we have previously held that, as a matter of law, the appellee had not met his burden of proof as to the existence of biological material, and because the legislature’s amendment did not alter this result except in the case of the fingernail scrapings, the trial court erred under the law of the case doctrine when it disregarded our previous holding.").
Even if we were writing on a blank slate, the majority repeats the mistake we made the first time this case was before us by focusing on evidence contrary to Maciel’s necessity defense and every perceived weakness and inconsistency in her testimony. See Maciel, 631 S.W.3d at 724 ("While the court of appeals only looked at the evidence which undermined the re- quest for the instruction, it failed to look at the following evidence supporting it …."). This dim approach to the evidence is inconsistent with Maciel’s entitlement "to an instruction on any defensive issued raised by the evidence, whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless of how the [appellate] court views the credibility of the defense." Id. at 724 (quoting Celis, 416 S.W.3d at 430). Moreover, once an affirmative defense has been adequately raised, as was the case here according to the Court of Criminal Appeals, the resolution of that fact question should be left to the jury to decide. Reeves, 420 S.W.3d at 820. Looking at the state of the evidence through the proper lens, this factor clearly militates in favor of finding actual harm.
III. O ther R elevant F actors
I also disagree with the majority’s characterization of Maciel’s necessity defense as being secondary to, or inconsistent with, her other defensive theory that she did not legally operate the vehicle. To be sure, there is a logical sequence to the two defensive theories. Maciel believed that she did not technically "operate" the vehicle because, despite her efforts to do so, she was unable to move the vehicle. Maciel, 631 S.W.3d at 724. However, as the Court of Criminal Appeals put it, "[Maciel] was essentially saying that if she was operating a motor vehicle, it was only for the purpose of necessity." Id. at 725. Indeed, contrary to the majority’s suggestion, Maciel’s necessity defense was not some mere afterthought; instead, it was central to her defensive strategy during most of the trial. For example, after eliciting favorable evidence from the State’s witness, Officer Shaw, about the potentially dangerous nature of the situation, Maciel’s trial counsel expressly introduced her necessity defense throughout his opening statement:
So [Maciel’s brother] abruptly stops the car in the middle of the road; doesn’t pull to the side, as you saw. The car is in the middle of the road in between lights. He stops the vehicle, gets out, proceeds to get sick.
[Maciel] at this point is panicked, okay? The sister-in-law is panicked. They are scared. They are in the middle of the road, okay? It’s a dangerous situation to be in. Her brother is getting sick, okay? She’s worried about him.
So what does she do? She climbs across the console and gets into the driver’s seat. She climbs across the console to get in the driver’s seat with the intention of moving the vehicle off the road, moving the vehicle, getting to safety; and they can figure out what they—how to get home from there.
That’s what the cops found, okay? And why she couldn’t move the vehicle, a number of factors, probably. She was panicked. She was scared and intoxicated. Okay? She simply could not figure out how to get the car moving, and that’s what you saw. That’s what the cop saw when he arrived. The fact is that she just couldn’t get the vehicle moving at the time. That’s why it’s smoking. That’s why the engine is smoking.
She wasn’t trying to drive home at that point. She was trying to get them off the road, get the car to safety. As you’ve heard, that’s a dangerous situation to be in. That’s when the cop shows up and everything else you’ve seen at that point, okay? And I think you saw at that point—and we will reiterate—that she’s a confused woman, a scared woman, concerned woman for her brother. Her brother is continuing, even as the officers are there, vomiting on the side, the side of the vehicle.
Ladies and gentlemen, that’s what we intend to show. That’s what the evidence
will show. We are not here to say that [appellant] didn’t necessarily make some mistakes, okay? She had too much to drink. She made the mistake of getting in the vehicle with her brother. What she didn’t do was make the mistake of trying to operate the vehicle beyond getting it off the road out of danger.
Afterwards, Maciel testified to these very facts, and the Court of Criminal Appeals concluded that her testimony, along with other evidence, was sufficient to raise a necessity defense. Id. Therefore, Maciel’s two defensive theories worked in tandem rather than disjunctively, and this further suggests that the error in omitting the defensive instruction was harmful.
IV. A rguments of C ounsel
As further support for its decision, the majority claims "Maciel did not present a justification defense in her closing argument which the jury was prevented from believing had they been provided a necessity instruction." That is not an entirely accurate representation of the record. After the trial court denied her requested necessity instruction, Maciel understandably chose to focus on her lack-of-operation defense during closing. However, she also continued to cautiously press her necessity defense: "Even if you believe that [Maciel operated the vehicle], you can still consider the motive. She wasn’t trying to operate the vehicle to drive it. She was trying to operate the vehicle to get it off the road. That matters. It should matter. It does matter."
But Maciel had to tread carefully. Before closing, the jury received the trial court’s charge, which did not include Maciel’s requested necessity instruction. The purpose of this charge was to "inform the jury of the applicable law and guide them in its application to the case," Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007), and "it is the duty of the jury to follow the law as it is laid down by the court." Sparf v. United, States, 156 U.S. 51, 74, 15 S.Ct. 273, 39 L.Ed. 343 (1895); see Tex. Code Crim. Prog. Ann. art. 36.13 (explaining that "the jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby"). Therefore, as far as the jury was concerned, the "law applicable to the case" did not include Maciel’s necessity defense. See Bell v. State, 635 S.W.3d 641, 645 (Tex. Crim. App. 2021) (quoting Tex. Code Crim. Proc. Ann. art. 36.14).
Thus, explicitly arguing a necessity defense would have been objectionable on multiple grounds, including an inappropriate request for jury nullification. See Lumsden v. State, 564 S.W.3d 858, 900 (Tex. App.—Fort Worth 2018, pet. ref'd) ("Jury nullification is not an argument that a defendant is entitled to make because there is no constitutional right to jury nullification and because there is no constitutional requirement that the jury be instructed on nullification." (citing Ramos v. State, 934 S.W.2d 358, 367 (Tex. Crim. App. 1996))). Under these circumstances, we should not penalize Maciel for giving due respect to the trial court’s ruling, which essentially required her to abandon her necessity defense during closing arguments.1a See Rogers I, 550 S.W.3d at 194 (finding actual harm where the trial court’s rulings prevented defendant from presenting necessity and self-defense to the jury and disagreeing with the court of appeals’ conclusion that defendant’s "compliance with those rulings … weighed against a finding of harm"). Conversely, with other types of jury charge errors, the arguments made by the parties feature prominently in the harm analysis. This is particularly true when the charge includes an improper instruction, and the State emphasizes the improper instruction to the jury. See, e.g., Ngo v. State, 175 S.W.3d 738, 751 (Tex. Crim. App. 2005) (finding egregious harm where "the jury was affirmatively told, on three occasions, twice by the prosecutor and once by the trial judge, that it need not return a unanimous verdict’’). On the other hand, a court may conclude that this factor weighs against a finding of harm because the State did not emphasize the court’s improperly included instruction. See, e.g., Helm v. State, 295 S.W.3d 780, 784 (Tex. App.—Fort Worth 2009, no pet.) ("Although the State referred to Appellant’s refusal three times during its closing, the record demonstrates that the prosecution did not emphasize the court’s instruction, focus the jury’s attention on that instruction, or exploit the instruction by placing the weight of the trial court behind it."). This case simply does not lend itself to that kind of analysis, and consequently, I would conclude that this factor is neutral. But even if the majority is correct and this factor points to harmless error, it is merely one of four factors we consider when assessing harm. See French v. State, 563 S.W.3d 228, 237 (Tex. Crim. App. 2018) ("Whether jury charge error is preserved or not, the degree of harm resulting from the error must be measured in light of all four factors identified in Almanza.").
V. T he J ury C harge
In any event, the Court of Criminal Appeals also concluded that Maciel effectively confessed to operating the vehicle while intoxicated. Id. ("In accord with our jurisprudence, [Maciel]’s testimony was sufficient to admit commission of DWI."). Thus, when we look at the jury charge as a whole, the trial court’s failure to instruct the jury on Maciel’s properly raised necessity defense could not be harmless "because its omission le[ft] the jury without a vehicle by which to acquit a defendant who has admitted to all the elements of the offense.’ " See Rogers I, 550 S.W.3d at 192 (quoting Cornet, 417 S.W.3d at 449); see also Jordan v. State, 593 S.W.3d 340, 348 (Tex. Crim. App. 2020) ("The difference between the instructions that were given and those that should have been given is the difference between foreclosing [necessity] and allowing fair consideration of it. That difference clearly demonstrates that Appellant was harmed ….").
In sum, because three factors demonstrate actual harm, and one factor is neutral, I would reverse the trial court’s judgment and remand for further proceedings. See French, 563 S.W.3d at 237.
VI. D istinguishing C ornet
Finally, the majority ultimately concludes that this is "one of the rare cases in which the trial court’s refusal to instruct on a [necessity] defense was harmless." Of course, Comet v. State, decided only ten years ago, was the case that established the possibility that a failure to instruct on a properly raised confession and avoidance defense could be harmless in exceptional circumstances. See 417 S.W.3d at 446, 451. A comparison between the two cases demonstrates why this case is anything but rare.
In Comet, the defendant was charged with sexual assault of a child by digitally penetrating the complainant’s genitals and making oral contact with her anus during a single event. 417 S.W.3d at 449. The defendant denied the oral contact but sought to justify the digital penetration with the medical care defense. Id. The trial court denied the defendant’s requested instruc- tion, and the Court of Criminal Appeals found the error was harmless. Id. at 449, 455.
The Cornet Court began by observing that it could not find a single instance in which the omission of a defensive instruction under a confession and avoidance theory was found to be harmless, setting the stage for its "record-specific analysis" in that case. Id. at 451. In ultimately finding the error harmless, the court focused on two circumstances that are not present in this case: (1) although both assaults were alleged to have occurred during the same event, the medical care defense only applied to the digital penetration count; and (2) despite the absence of the instruction, the State expressly asked the jury to consider and reject the defense during its closing argument, which allowed the court to infer that the jury had implicitly rejected the defense by finding the defendant guilty on both counts. Id. at 452, 454. The Comet Court found it "inconceivable that the jury would have found appellant guilty of causing the anus of the complainant to contact his mouth, a claim entirely denied by appellant, had it believed his claim that he was providing medical care to the complainant during the same event." Id. at 452.
In considering other relevant information, the court also noted that the defendant "did not mention the medical care-defense and appeared to disavow the suggestion that this was appropriate medical care" during his opening statement. Id. at 454. The court described his subsequent request for the instruction as "an afterthought" that was not "the primary focus of his defensive theory at trial." Id. at 455.
Here, unlike Comet, Maciel was charged with a single count of DWI, the State did not ask the jury to consider and reject her necessity defense during its closing, and Maciel unequivocally presented her necessity defense during her opening statement. See id. at 452-55. I recognize that Cornet did not contemplate every scenario in which a trial court’s refusal to instinct on a confession and avoidance defense could be considered harmless, but the stark contrast between that case and this one illustrates why they do not belong in the same "rare" category of harmless error.2a See Rogers I, 550 S.W.3d at 192-96 (finding some harm and distinguishing Cornet as a "rare" case).
VII. C onclusion
It is clear how the majority would resolve Maciel’s necessity defense if those panel members were on the jury. But that is not the prerogative of this Court. I would hold that Maciel suffered actual harm, reverse the conviction, and remand for further proceedings. Therefore, I respectfully dissent.