Giesberg v. State

The majority holds the defense of alibi “merely negate[s] an element of the offense” and, therefore, no instruction is necessary. Ante at 250. The majority also holds a trial judge may never give an alibi instruction. Believing both holdings are contrary to established precedent, I dissent.

I

The defense of alibi is well established in legal jurisprudence. The Texas Supreme Court held over 125 years ago that “in many cases [alibi] is the only evidence which an innocent man can offer.” Walker v. State, 37 Tex. 366, 388 (1872). Indeed, this Court has held if the evidence raises the issue that the…