defensive instruction in Texas

2026See Shaw, 243 S.W.3d at 659 (explaining that justification defense “does not negate any element of the offense” but “only excuses what would otherwise constitute criminal conduct” and reasoning that defendant was “not entitled to a defensive instruction with respect to evidence that does nothing more than negate an element of the offense”); see also Wert v. State, 383 S.W.3d 747, 756 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (determining that defendant had not established that trial counsel was deficient for failing to request defense-of-property instruction because counsel’s strategy—“to

2026Thus, “a defensive instruction is only appropriate when the defendant’s defensive evidence essentially admits to every element of the offense including the culpable mental state but interposes the - 21 - 04-24-00705-CR justification to excuse the otherwise criminal conduct.” Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim.

2021Granger, 3 S.W.3d at 37–39. “‘When an accused creates an issue of mistaken belief as to the culpable mental element of the offense, he is entitled to a defensive instruction of ‘mistake of fact.’” Id. at 41 (emphasis added) (quoting Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim.

2015See, e.g., Bang v. State, 815 S.W.2d 838, 842 (Tex.App.—Corpus Christ 1991, no pet.) (citing Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App. 1991) (“When an accused creates an issue of mistaken belief as to the culpable mental element of the offense, he is entitled to a defensive instruction on ‘mistake of fact.’”).

2025When determining whether a defensive instruction should have been provided, appellate courts “view the evidence in the light most favorable to the defendant’s requested instruction.” Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim.

2015In determining whether a defensive instruction should have been given, “we view the evidence in the light most favorable to the defendant's requested submission.” Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim.

2015On the other hand, the Court of Criminal Appeals has said that when a defendant’s evidence “creates an issue of mistaken belief as to only the culpable mental state element of theft ..., the defendant would be entitled to a defensive instruction of ‘mistake of fact.’ ” Willis v. State, 790 S.W.2d 307, 314 (Tex.Crim.App.1990); see also Giesberg v. State, 984 S.W.2d 245, 249-50 (Tex.Crim.App.1998).

2015On the other hand, the Court of Criminal Appeals has said that when a defendant’s evidence “creates an issue of mistaken belief as to only the culpable mental state element of theft . . . , the defendant would be entitled to a defensive instruction of ‘mistake of fact.’” Willis v. State, 790 S.W.2d 307, 314 (Tex. Crim.

2025Therefore, a trial court has no duty to instruct the jury on a defensive issue that the defendant did not request, and “[a] defendant cannot complain on appeal about the trial judge’s failure to include a defensive instruction that he did not preserve by request or objection: he has procedurally defaulted any such complaint.” Vega, 394 S.W.3d at 519 .

2024However, if a trial court does charge on a defensive issue, 11 Accordingly, absent a proper request to the trial court, a defendant “cannot complain on appeal about the trial [court’s] failure to include a defensive instruction.” Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim.

2018Shaw, 243 S.W.3d at 659 (“a defensive instruction is only appropriate when the defendant’s defensive evidence essentially admits to every element of the offense including the culpable mental state, but interposes the justification to excuse the otherwise criminal conduct”); see also Young v. State, 991 S.W.2d 835, 838 (Tex. Crim.

2009Shaw, 243 S.W.3d at 659 (holding that “a defensive instruction is appropriate only when the defendant’s defensive evidence essentially admits to every element of the offense including the culpable mental state, but interposes the justification to excuse the otherwise criminal conduct”); Young v. State, 991 S.W.2d 835, 838 (Tex. Crim.

2021Granger, 3 S.W.3d at 37–39. “‘When an accused creates an issue of mistaken belief as to the culpable mental element of the offense, he is entitled to a defensive instruction of ‘mistake of fact.’” Id. at 41 (emphasis added) (quoting Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim.

2021Granger, 3 S.W.3d at 37–39. “‘When an accused creates an issue of mistaken belief as to the culpable mental element of the offense, he is entitled to a defensive instruction of ‘mistake of fact.’” Id. at 41 (emphasis added) (quoting Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim.

2023“Rather, a defensive instruction is only appropriate when the defendant’s defensive evidence essentially admits to every element of the offense . . . but interposes the justification to excuse the otherwise criminal conduct.” Id.; see also Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim.

2023Alternatively, a defensive instruction is required when the defendant’s evidence “essentially admits to every element of the offense, including the culpable mental state.” Id.

2019However, even if the evidence viewed in the proper light raises a “prima-facie defense, no error is shown in the denial of a defensive instruction if the evidence establishes as a matter of law that the defendant is not entitled to rely on this defense.” Davis v. State, 276 S.W.3d 491, 499 (Tex. App.—Waco 2008, pet. ref’d ) (quoting Johnson v. State, 157 S.W.3d 48, 50 (Tex. App.—Waco 2004, no pet.)); see Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim.

2015However, even if the evidence viewed in the light most favorable to the defendant raises a “prima-facie defense, no error is shown in the denial of a defensive instruction if the evidence establishes as a matter of law that the defendant is not entitled to rely on this defense.” Johnson v. State, 157 S.W.3d 48, 50 (Tex. Crim.

2016Promissory estoppel is not an independent cause of action, but a defensive doctrine that estops a promisor from denying the enforceability of a promise. 53 Wheeler v. White, 398 S.W.2d 93, 96 (Tex. 1965).

2006Trammel Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631, 636 (Tex.1997); Wheeler v. White, 398 S.W.2d 93, 96 (Tex.1965).

2025Consequently, a defendant “cannot complain on appeal about the trial judge’s failure to include a defensive instruction that [the defendant] did not preserve by request or objection: he has procedurally defaulted any such complaint.” Id. (citing Posey, 966 S.W.2d at 61 ).

2025Consequently, a defendant “cannot complain on appeal about the trial judge’s failure to include a defensive instruction that [the defendant] did not preserve by request or objection: he has procedurally defaulted any such complaint.” Id. (citing Posey, 966 S.W.2d at 61 ).

2018However, in light of the evidence raising the issue of self-defense, of our resolution of the factors discussed above, and of the governing case law indicating that the denial of a defensive instruction in cases involving a single offense is generally harmful, see Cornet, 417 S.W.3d at 451 , we cannot conclude that the absence of a self-defense instruction was harmless under the circumstances present here.

2017That appellant did not rely on either defense strongly suggests that the error was harmless. 1 See id. at 455 (hold ing that error in refusing to give a defensive instruction was harmless in part because appellant did not invoke the defense in voir dire or in his opening statement).

2008Shaw, 243 S.W.3d at 659 (a defensive instruction is appropriate only when the defendant’s defensive evidence essentially admits to every element of the offense including the culpable mental state, but interposes the justification to excuse the otherwise criminal conduct) ; Young v. State, 991 S.W.2d 835, 838 (Tex.Crim.App. 1999); Withers v. State, 994 S.W.2d 742, 745 (Tex.App.–Corpus Christi 1999, pet. ref’d), citing Reich-Bacot v. State, 976 S.W.2d 678, 679 (Tex.Crim.App. 1998) (to be entitled to a charge on self-defense, a defendant is essentially required to admit committing the conduct giv

2008Shaw, 243 S.W.3d at 659 (a defensive instruction is appropriate only when the defendant’s defensive evidence essentially admits to every element of the offense including the culpable mental state, but interposes the justification to excuse the otherwise criminal conduct); Young v. State, 991 S.W.2d 835, 838 (Tex.Crim.App. 1999); Withers v. State, 994 S.W.2d 742, 745 (Tex.App.–Corpus Christi 1999, pet. ref’d), citing Reich-Bacot v. State, 976 S.W.2d 678, 679 (Tex.Crim.App. 1998) (to be entitled to a charge on self-defense, a defendant is essentially required to admit committing the conduct givi

2016Id. at 659 ; Rodriguez v. State, 368 S.W.3d 821, 825 (Tex.App.--Houston [14th Dist.] 2012, no pet.)(defendant was precluded from asserting a justification defense where he failed to testify, stipulate, or otherwise proffer evidence admitting he was engaged in the proscribed conduct); Hubbard v. State, 133 S.W.3d 797, 801-02 (Tex.App.--Texarkana 2004, pet. ref’d)(defendant not entitled to defensive instruction on justification unless he “sufficiently admits conduct underlying the offense and provides evidence justifying a defensive instruction”). 10 The record reflects no evidence to indicate A

2012See Shaw, 243 S.W.3d at 659 (defendant is entitled to jury instruction on such a defense only “when the defendant’s defensive evidence essentially admits to every element of the offense, including the culpable mental state, but interposes the justification to excuse the otherwise criminal conduct” (emphasis omitted)); Hubbard v. State, 133 S.W.3d 797, 801-02 (Tex.App.-Texarkana 2004, pet. ref'd) (defendant not entitled to defensive instruction on justification unless he or she “sufficiently admits conduct underlying the offense and provides evidence justifying a defensive instruction”); see al

2022Accordingly, “a defendant can sufficiently admit the conduct alleged and justify a defensive instruction.” Torres, 7 S.W.3d at 715 .

2015See Torres, 7 S.W.3d at 715 ; accord Holloman, 948 S.W.2d at 352 .

2023See, e.g., Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

2012See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) ("If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the errar is calculated to injure the rights of defendant, which means no more than that there must be some harm to the accused from the error.”) (internal quotation marks omitted); see also Miller v. State, 815 S.W.2d 582, 585-86 (Tex.Crim.App.199I) (discussing the harm analysis of Almanza as it applies to a trial court's failure to give a defensive instruction that was raised by the evidence).

2019However, even if the evidence viewed in the proper light raises a “prima-facie defense, no error is shown in the denial of a defensive instruction if the evidence establishes as a matter of law that the defendant is not entitled to rely on this defense.” Davis v. State, 276 S.W.3d 491, 499 (Tex. App.—Waco 2008, pet. ref’d ) (quoting Johnson v. State, 157 S.W.3d 48, 50 (Tex. App.—Waco 2004, no pet.)); see Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim.

2009However, “no error is shown in the denial of a defensive instruction if the evidence establishes as a matter of law that the defendant is not entitled to rely on this defense.” Johnson v. State, 157 S.W.3d 48, 50 (Tex.App.-Waco 2004, no pet.); see Dyson v. State, 672 S.W.2d 460, 463 (Tex.Crim.App.1984).

2015Sands v. State, 64 S.W.3d 488, 494 (Tex.App.— Texarkana 2001, no pet.); see also Durden v. State, 290 S.W.3d 413, 419 (Tex.App.—Texarkana 2009, no pet.) (That the evidence supporting mistake of fact defense “might have been seen by the trial court or the jury as feeble, contra- dicted, impeached, or incredible” does not undermine a defendant’s “entitlement to a defensive instruction.”).

2015Sands v. State, 64 S.W.3d 488, 494 (Tex.App.—Texarkana 2001, no pet.); see also Durden v. State, 290 S.W.3d 413, 419 (Tex.App.—Texarkana 2009, no pet.) (That the evidence supporting mistake 12 of fact defense “might have been seen by the trial court or the jury as feeble, contradicted, impeached, or incredible” does not undermine a defendant’s “entitlement to a defensive instruction.”).

2021See In re Jebbia, 26 S.W.3d at 757 .

2009To prevent the trial court from summarily sending the parties to arbitration, Levin was required “only to raise an issue of material fact about a necessary element of [his] opponent’s “case in chief” or present some evidence supporting every element of a defensive claim that there is no enforceable agreement to arbitrate.” In re Jebbia, 26 S.W.3d at 757 .

2010See, e.g., Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515-16 (Tex. 1998) (“[T]he doctrine of equitable estoppel requires: (1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the representations.”); Trammel Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631, 636 (Tex. 1997) (“Promissory estoppel generally is a defensive doctrine in that it

2010See, e.g. , Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc ., 962 S.W.2d 507, 515-16 (Tex. 1998) ("[T]he doctrine of equitable estoppel requires: (1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the representations."); Trammel Crow Co. No. 60 v. Harkinson , 944 S.W.2d 631, 636 (Tex. 1997) ("Promissory estoppel generally is a defensive doctrine in that

2015See, e.g., Bang v. State, 815 S.W.2d 838, 842 (Tex.App.—Corpus Christ 1991, no pet.) (citing Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App. 1991) (“When an accused creates an issue of mistaken belief as to the culpable mental element of the offense, he is entitled to a defensive instruction on ‘mistake of fact.’”).

2015See, e.g., Bang v. State, 815 S.W.2d 838, 842 (Tex.App.—Corpus Christ 1991, no pet.) (citing Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App. 1991) (“When an accused creates an issue of mistaken belief as to the culpable mental element of the offense, he is entitled to a defensive instruction on ‘mistake of fact.’”).

2026The Court of Criminal Appeals stated that counsel should have recognized that the defendant had “nothing to lose by requesting a defensive instruction” on necessity and that without the instruction, the defendant’s conviction was a “foregone conclusion.” Id. at 951 .

2024“However, even if the appellant is entitled to a defensive instruction, the decision to forgo such an instruction may not be objectively unreasonable, as these decisions are frequently grounded in trial strategy.” Id. (citing Okonkwo, 398 S.W.3d at 697 ). “[J]ust because a competent defense attorney recognizes that a particular defense might be available to a particular offense, he or she could also decide it would be inappropriate to propound such a defense in a given case.” Id. (quoting Vasquez v. State, 830 S.W.2d 948 , 950 n.3 (Tex. Crim.

2013LEXIS 7587, at *18 (Tex.App.-San Antonio Aug. 25, 2004, no pet.) (not designated for publication) (citing Bruno, 845 S.W.2d at 913 ). .See also Louis v. State, 393 S.W.3d 246, 253 (Tex.Crim.App.2012) (defendant entitled to mistake-of-fact instruction when raised to negate transferred intent); Thompson v. State, 236 S.W.3d 787, 799-800 (Tex.Crim.App. 2007) (same); Granger v. State, 3 S.W.3d 36, 41 (Tex.Crim.App. 1999) ("When an accused creates an issue of mistaken belief as to the culpable mental element of the offense, he is entitled to a defensive instruction of 'mistake of fact.' ") (quoting

2009When an accused creates an issue of mistaken belief as to the culpable mental element of the offense, he is entitled to a defensive instruction on ‘mistake of fact.’ ” 815 S.W.2d 838, 842 (Tex.App.-Corpus Christi 1991, no pet.) (citing Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App.1991); and referencing Hill v. State, 765 S.W.2d 794, 796-97 (Tex.Crim.App.1989)).

2015If you entertain a reasonable doubt as to whether the defendant was present at the time and place when and where [the aggravated robbery was committed, if it was], then you will find the defendant not guilty.” Appellant requested the instruction because he and his wife both testified that he was at home at the time of the offense. 47 The jurisprudence of this State decided that alibi was no longer available as a defensive instruction in Giesberg v. State, 984 S.W.2d 245 (Tex. Crim.

2015On the other hand, the Court of Criminal Appeals has said that when a defendant’s evidence “creates an issue of mistaken belief as to only the culpable mental state element of theft ..., the defendant would be entitled to a defensive instruction of ‘mistake of fact.’ ” Willis v. State, 790 S.W.2d 307, 314 (Tex.Crim.App.1990); see also Giesberg v. State, 984 S.W.2d 245, 249-50 (Tex.Crim.App.1998).

2026See Shaw, 243 S.W.3d at 659 (explaining that justification defense “does not negate any element of the offense” but “only excuses what would otherwise constitute criminal conduct” and reasoning that defendant was “not entitled to a defensive instruction with respect to evidence that does nothing more than negate an element of the offense”); see also Wert v. State, 383 S.W.3d 747, 756 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (determining that defendant had not established that trial counsel was deficient for failing to request defense-of-property instruction because counsel’s strategy—“to

2025“However, even if the appellant is entitled to a defensive instruction, the decision to forgo such an instruction may not be objectively unreasonable, as these decisions are frequently grounded in trial strategy.” Id. (citing Okonkwo v. State, 398 S.W.3d 689, 697 (Tex. Crim.

2017(Appellant Br. at 10.) But in that case, Holloman took the stand and admitted to fighting with his wife, so the Seventh Court of Appeals found “evidence in the record from which it could reasonably be said that he conceded striking her.” Holloman v. State, 948 S.W.2d 349, 352 (Tex. App.—Amarillo 1997, no pet.).

2015See Torres, 7 S.W.3d at 715 ; accord Holloman, 948 S.W.2d at 352 .

2018"If the defensive evidence *805 does no more than attempt to negate an element of the offense, a defendant is not entitled to a defensive instruction on any defense that is subject to the doctrine of confession and avoidance." Villa v. State , 417 S.W.3d 455 , 462 (Tex. Crim.

2016See Villa, 417 S.W.3d at 462 (“If the defensive evidence does no more than attempt to negate an element of the offense, a defendant is not entitled to a defensive instruction on any defense that is subject to the doctrine of confession and avoidance.”); Shaw, 243 S.W.3d at 659 (“[W]ith respect to defenses such as necessity and self defense . . . when the defensive evidence merely negates the necessary culpable mental state, it will not suffice to entitle the defendant to a defensive instruction.”). 17 Because appellant did not satisfy the requisites of the confession-and-avoidance doctrine, th

2025Saxton, 804 S.W.2d at 913 .

2015Saxton, 804 S.W.2d at 913 .

2017App. 2013) (Cornet II) (explaining that “[w]hen the defensive evidence does no more than attempt to negate an element of the offense, a defendant is not entitled to a defensive instruction on any defense subject to the confession-and-avoidance doctrine”); Cornet v. State, 359 S.W.3d 217, 225 (Tex. Crim.

2015See Juarez v. State, 308 S.W.3d at 406 and Cornet v. State, 359 S.W.3d at 226-227 (Tex. Crim.