In Juarez v. State
, a 2010 case the Texas Court of Criminal Appeals held that the Defendant is required to admit all elements of a charged offense, including the culpable mental state, to be entitled to a necessity defense instruction.
, the appellant was convicted of aggravated assault on a police officer with a deadly weapon
after he bit Officer Burge during a struggle. Appellant testified that the biting was accidental; he also said he did it because the cop was grinding his face into the dirt, making him feel as though he was suffocating. He asked for a charge on the justification defense of necessity, but because he denied culpability for the crime, the trial court denied that instruction. The Court of Appeals held that a defendant need admit only the prohibited act, not the culpable mental state.
In reversing, the Court of Criminal Appeals explained that the doctrine of confession and avoidance applies to the Penal Code's necessity defense
, and that doctrine requires an admission to the conduct, which includes both the act or omission and the requisite mental state.