MACIEL, BETHANY

An officer found Maciel in the driver’s seat of a car stopped in a lane of traffic. The engine was on and smoke was coming from the hood. In the officer’s presence, she was attempting unsuccessfully to switch the car’s gear. She was intoxicated.

At her DWI trial, Maciel testified that her brother drove the car to that point before getting out to vomit and that she got behind the steering wheel with the intent to move the car to safety but was unable to. She asked for a jury charge on the defense of necessity, but the trial court denied it because she testified, “I couldn’t get the car to move, so I wasn’t driving. I don’t think I was operating it.” The jury rejected her defense theory that she had not been operating the car and convicted her of DWI.

On appeal Maciel urged that denial of the necessity instruction was error. The court of appeals held that in denying the element of operating, she denied committing the offense of DWI and was therefore not entitled to the defense of necessity.

Maciel compares her case to Juarez v. State, 308 S.W.3d 398 (Tex. Crim. App. 2010), which required a necessity instruction based on Juarez’s admitted conduct of biting the officer’s finger. Although Juarez denied acting intentionally, knowingly, or recklessly, the Court of Criminal Appeals held that the confession and avoidance doctrine was satisfied because the required mental state could be inferred from his testimony about the surrounding circumstances. Maciel argues her admission that she moved into the driver’s seat to get the car to safety and that she was trying to move car would allow a factfinder to infer she was indeed operating. Maciel contends her statement to the contrary simply reflects a different interpretation of what it means to operate a vehicle, not a denial of the relevant facts.