necessity defense in Texas

2025Counsel’s trial strategy was to raise a necessity defense, which required Huff to admit to the illegal conduct, see Juarez v. State, 308 S.W.3d 398, 406 (Tex. Crim.

2020See id. 9 On the State’s petition for discretionary review, the Court of Criminal Appeals agreed with the court of appeals that the trial court had erred in denying the defendant’s request for a necessity instruction and that the error was harmful.

2025Likewise, “[t]he defendant has the initial burden of producing evidence regarding the necessity defense.” Stefanoff v. State, 78 S.W.3d 496, 500 (Tex. App.—Austin 2002, pet. ref’d) (citing TEX.

2025Likewise, “[t]he defendant has the initial burden of producing evidence regarding the necessity defense.” Stefanoff v. State, 78 S.W.3d 496, 500 (Tex. App.—Austin 2002, pet. ref’d) (citing TEX.

2020“When the necessity defense applies, it justifies the defendant’s conduct in violating the literal language of the criminal law and so the defendant is not guilty of the crime in question.” Young, 991 S.W.2d at 839 (quoting Wayne R.

2010Ex parte Nailor, 149 S.W.3d at 133 ; Bowen v. State, 162 S.W.3d 226, 230 (Tex.Crim.App.2005) (observing that the defendant's admission to the conduct “satisfied the judicially imposed prerequisite to request a necessity instruction”); Young, 991 S.W.2d at 839 ; Vasquez v. State, 830 S.W.2d 948, 950-51 (Tex.Crim.App.1992) (observing that the defendant admitted to the conduct and that his testimony raised the necessity defense); Thomas v. State, 678 S.W.2d 82, 85 (Tex.Crim.App.1984) (recognizing that the confession and avoidance doctrine applied to one of the State’s theories of guilt because of

2025Bowen addressed the interplay of the exact provisions before us.28 The question was whether the resisting-arrest exclusion in the self-defense statute constituted a legislative purpose to exclude the justification claimed so as to prevent the defendant from meeting element (3) of the necessity defense.29 The Court in Bowen first asserted that the plain language of the necessity statute “indicates that the defense of necessity may be applicable in every case unless specifically excluded by the legislature.”30 The Court then said, “To determine whether a legislative purpose exists to exclude the

2025Bowen addressed the interplay of the exact provisions before us.28 The question was whether the resisting-arrest exclusion in the self-defense statute constituted a legislative purpose to exclude the justification claimed so as to prevent the defendant from meeting element (3) of the necessity defense.29 The Court in Bowen first asserted that the plain language of the necessity statute “indicates that the defense of necessity may be applicable in every case unless specifically excluded by the legislature.”30 The Court then said, “To determine whether a legislative purpose exists to exclude the

2020Juarez, 308 S.W.3d at 405-06; Williams v. State, 314 S.W.3d 45, 50 (Tex. App.–Tyler 2010, pet. ref’d); see also Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007); Villa v. State, 370 S.W.3d 787, 793 (Tex. App.–Eastland 2012), aff’d, 417 S.W.3d 455 (“Unlike Section 2.03 defenses that can find support in evidence from any source, matters in confession and avoidance must find support in a defendant’s defensive evidence”). 3 In the instant case, Appellant’s defensive evidence does not support an admission of the conduct underlying the offense of driving with an invalid license. 4 According

2015App. Feb. 10, 2010) (not designated for publication) (concluding that the necessity defense was 4 In Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim.

2013In Vasquez v. State, the first case cited by appellant, the court held that trial counsel was ineffective when he failed to request a jury charge instruction on the necessity defense. 830 S.W.2d 948, 949 (Tex. Crim.

2010Ex parte Nailor, 149 S.W.3d at 133 ; Bowen v. State, 162 S.W.3d 226, 230 (Tex.Crim.App.2005) (observing that the defendant's admission to the conduct “satisfied the judicially imposed prerequisite to request a necessity instruction”); Young, 991 S.W.2d at 839 ; Vasquez v. State, 830 S.W.2d 948, 950-51 (Tex.Crim.App.1992) (observing that the defendant admitted to the conduct and that his testimony raised the necessity defense); Thomas v. State, 678 S.W.2d 82, 85 (Tex.Crim.App.1984) (recognizing that the confession and avoidance doctrine applied to one of the State’s theories of guilt because of

2023The second prong of the necessity defense requires evidence that the harm the defendant sought to avoid clearly outweighed the harm the statute seeks to avoid, according to “ordinary standards of reasonableness.” See Tex. Penal Code § 9.22(2); Wood v. State, 271 S.W.3d 329, 335 (Tex. App.—San Antonio 2008, pet. ref’d).

2023The second prong of the necessity defense requires evidence that the harm the defendant sought to avoid clearly outweighed the harm the statute seeks to avoid, according to “ordinary standards of reasonableness.” See Tex. Penal Code § 9.22(2); Wood v. State, 271 S.W.3d 329, 335 (Tex. App.—San Antonio 2008, pet. ref’d).

2022Ford v. State, 112 S.W.3d 788, 794 (Tex. App.—Houston [14th Dist.] 2003, no pet.); Miller v. State, 940 S.W.2d 810, 815 (Tex. App.—Fort Worth 1997, pet. ref’d); Shafer v. State, 919 S.W.2d 885, 887 (Tex. App.—Fort Worth 1996, pet. ref’d); McFarland, 784 S.W.2d at 54 ; Goodin v. State, 750 S.W.2d 857, 862 (Tex. App.—Corpus Christi 1988, pet. ref’d); Leach v. State, 726 S.W.2d 598, 600 (Tex. App.—Houston [14th Dist.] 1987, no pet.).

2017Ford v. State, 112 S.W.3d 788, 793 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

2025See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim.

2023See id. -7- We note that the “issue of self-defense is a fact issue to be determined by the jury, which is free to accept or reject the defensive issue.” Dudzik, 276 S.W.3d at 557 (citing Saxton, 804 S.W.2d at 912 n.5); accord Valverde, 490 S.W.3d at 528 .

2013The Court held that the plain language codifying the necessity defense evinced a legislative intent that the defense apply to all offenses unless the legislature specifically excluded it from the offense Id.

2003“The plain language codifying the necessity defense evinces a legislative intent that the defense apply to all offenses unless the legislature has specifically excluded it from them.” Spakes v. State, 913 S.W.2d 597, 598 (Tex.Crim.App.1996); see Tex. Penal Code Ann. § 9.22 (3) (listing requirement that “a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear”).

2025“Harm is imminent when there is an emergency situation, and it is ‘immediately necessary’ to avoid that harm.” Pennington, at 857; Bobo v. State, 757 S.W.2d 58, 63 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d) (stating that a suggestion of the possibility of harm will not suffice to support a necessity defense). “‘Imminent’ means something that is impending, not pending; something that is on the point of happening, not about to happen.” 7 Pennington, 54 S.W.3d at 857 .

2024Pennington v. State, 54 S.W.3d 852, 857 (Tex. App.—Fort Worth 2001, pet. ref’d).

2023While appellant specifically denied intending to kill Gonzales, this alone does not preclude an instruction on self-defense.”); Thomas v. State, 678 S.W.2d 82, 85 (Tex. Crim. App. 1984) (finding entitlement to a necessity defense instruction for aggravated robbery even though defendant denied any intent to deprive the officer of his gun as part of the underlying theft); Sanders v. State, 632 S.W.2d 346, 348 (Tex. Crim. App. 1982) (holding that a manslaughter defendant was entitled to the requested self-defense instruction although he denied having any intent to harm the deceased); Garcia v. St

2010Ex parte Nailor, 149 S.W.3d at 133 ; Bowen v. State, 162 S.W.3d 226, 230 (Tex.Crim.App.2005) (observing that the defendant's admission to the conduct “satisfied the judicially imposed prerequisite to request a necessity instruction”); Young, 991 S.W.2d at 839 ; Vasquez v. State, 830 S.W.2d 948, 950-51 (Tex.Crim.App.1992) (observing that the defendant admitted to the conduct and that his testimony raised the necessity defense); Thomas v. State, 678 S.W.2d 82, 85 (Tex.Crim.App.1984) (recognizing that the confession and avoidance doctrine applied to one of the State’s theories of guilt because of

2026Burrows v. Bowden, 564 S.W.2d 474, 475 (Tex. App.—Corpus Christi–Edinburg 1978, no writ); Tex. R.

2023Conversely, “[w]hen a plaintiff’s claim is liquidated, and proven by an instrument in writing, the plaintiff may be awarded damages without the necessity of a hearing or the presentation of evidence.” Hest Tech., Inc. v. PC Connection Sales Corp., No. 02-13-00278-CV, 2014 WL 1327508 , at *3 (Tex. App.—Fort Worth Apr. 3, 2014, no pet.) (mem. op.) (quoting Oliphant Fin., LLC v. Galaviz, 299 S.W.3d 829, 836 (Tex. App.—Dallas 2009, no pet.) (citing Burrows v. Bowden, 564 S.W.2d 474, 475 (Tex. App.—Corpus Christi 1978, no writ); TEX.

2024See Saxton, 804 S.W.2d at 914 . 5 See also Arnwine v. State, 20 S.W.3d 155, 160 (Tex. App.—Texarkana 2000, no pet.) (“It has been held that the existence of lawful alternatives to the commission of a criminal act may preclude a defendant from the defense of justification by necessity.”). 6 Crumpton testified that he had four or five misdemeanor convictions for evading arrest on foot, as well as a prior felony conviction for evading arrest in a motor vehicle. 20 We overrule Crumpton’s second issue.

2012See Kenny v. State, 292 S.W.3d 89, 101 (Tex. App.—Houston [14th Dist.] 2007, pet. struck) (holding evidence did not support a necessity instruction because the record revealed a complete absence of evidence of immediate necessity to justify criminal abduction of victim); Arnwine v. State, 20 S.W.3d 155, 160 (Tex. App.—Texarkana 2000, no pet.) (holding evidence did not support necessity instruction on charged lesser-included offense because assault was not necessary to avoid imminent harm).

2002And while we recognize that a defendant's testimony alone may be sufficient to support a necessity defense, see Hayes , 728 S.W.2d at 807 , it must actually raise the defensive issue before an instruction is proper, see Granger , 3 S.W.3d at 38 .

2002And while we recognize that a defendant’s testimony alone may be sufficient to support a necessity defense, see Hayes, 728 S.W.2d at 807 , it must actually raise the defensive issue before an instruction is proper, see Granger, 3 S.W.3d at 38 .

2015See Maldano v. State, 902 S.W.2d 708, 712 (Tex. App.–El Paso 1995, no pet.).

2003In holding that the necessity defense was properly refused, the court stated, “We decline to hold that every defendant who physically resists detention or arrest is entitled to an instruction on the issue of necessity simply because he resists.” Id.

2025Whipple v. State, 281 S.W.3d 482, 503 (Tex. App.—El Paso 2008, pet. ref’d); Searcy v. State, 231 S.W.3d 539, 544 (Tex. App.—Texarkana 2007, pet. ref’d); Epley v. State, 704 S.W.2d 502 , 506 (Tex. App.—Dallas 1986, pet. ref’d); Butler v. State, 663 S.W.2d 492, 496 (Tex. App.— Dallas 1983), aff’d on other grounds, 736 S.W.2d 668 (Tex. Crim. App. 1987); see also Banks v. State, 955 S.W.2d 116, 119 (Tex. App.—Fort Worth 1997, no pet.) (noting that defendant had been given charge on necessity and could not have one for necessity and self-defense in murder case).

2016Butler, 663 S.W.2d at 496 .

2013See Brazelton v. State, 947 S.W.2d 644, 648 (Tex. App.—Fort Worth 1997, no pet.); Bobo v. State, 757 S.W.2d 58, 63 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d) (stating that a suggestion of the possibility of harm will not suffice to support a necessity defense), cert. denied, 490 U.S. 1066 (1989).

2013See Brazelton v. State , 947 S.W.2d 644, 648 (Tex. App.—Fort Worth 1997, no pet.); Bobo v. State , 757 S.W.2d 58, 63 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d) (stating that a suggestion of the possibility of harm will not suffice to support a necessity defense), cert. denied , 490 U.S. 1066 (1989).

2024See Auston v. State, 892 S.W.2d 141, 145 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (citing -9- Leach v. State, 726 S.W.2d 598, 600 (Tex. App.—Houston [14th Dist.] 1987, no pet.)).

2013The State argues that Ray is not entitled to a necessity instruction because Ray “provoked the difficulty.” The State relies on Leach v. State where the Fourteenth Court of Appeals held as follows: “... we hold that one who provokes the difficulty, or is responsible for having placed himself in the position from which he attempts to extricate himself by committing a criminal offense, is not entitled to a charge authorizing his acquittal of that offense based upon necessity.” Leach v. State, 726 S.W.2d 598, 600 (Tex.App.-Houston [14th Dist.] 1987, no pet.).

2025Whipple v. State, 281 S.W.3d 482, 503 (Tex. App.—El Paso 2008, pet. ref’d); Searcy v. State, 231 S.W.3d 539, 544 (Tex. App.—Texarkana 2007, pet. ref’d); Epley v. State, 704 S.W.2d 502 , 506 (Tex. App.—Dallas 1986, pet. ref’d); Butler v. State, 663 S.W.2d 492, 496 (Tex. App.— Dallas 1983), aff’d on other grounds, 736 S.W.2d 668 (Tex. Crim. App. 1987); see also Banks v. State, 955 S.W.2d 116, 119 (Tex. App.—Fort Worth 1997, no pet.) (noting that defendant had been given charge on necessity and could not have one for necessity and self-defense in murder case).

2009See Butler v. State, 663 S.W.2d 492, 496 (Tex.App.-Dallas 1983), aff'd, 736 S.W.2d 668 (Tex.Crim.App.1987).

2019See Ray v. State, 419 S.W.3d 467, 470 (Tex. App.—Waco 2013, pet. ref’d) 19 (holding that because appellant did not admit to committing the conduct of the charged offense, the trial court did not err by denying his request for a necessity instruction).

2018Split of Authority Our sister court in Waco, which supports Appellant’s position, see Ray v. State, 419 S.W.3d 467 , 468–69 (Tex. App.—Waco 2013, pet. ref’d), relies on language from the Texas Court of Criminal Appeals noting that “(t)he plain language codifying the necessity defense evinces a legislative intent that the defense apply to all offenses unless the legislature has specifically excluded it from them.” Bowen v. State, 162 S.W.3d 226 , 228–29 (Tex. Crim.

2021This prong of the necessity defense requires evidence of a reasonable belief of both immediate necessity and imminent harm. 14 Murkledove v. State, 437 S.W.3d 17, 21 (Tex. App.—Fort Worth 2014, pet. dism’d, untimely filed).

2018Here, Kelso’s requested jury instructions identified the degree of harm in relation to the necessity defense as “death of or seriously bodily injury to Hansel, Miranda Kelso, or Miranda Kelso’s unborn child.” Accordingly, as applied to this case, both parties agree that the justification of necessity shared a common requirement with the affirmative defense of duress—threat of imminent death or serious bodily injury to Kelso or another. “‘Imminent’ means something that is immediate, something that is going to happen now.” Murkledove v. State, 437 S.W.3d 17, 25 (Tex. App.—Fort Worth 2014, pet. d

2025“Harm is imminent when there is an emergency situation, and it is ‘immediately necessary’ to avoid that harm.” Pennington, at 857; Bobo v. State, 757 S.W.2d 58, 63 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d) (stating that a suggestion of the possibility of harm will not suffice to support a necessity defense). “‘Imminent’ means something that is impending, not pending; something that is on the point of happening, not about to happen.” 7 Pennington, 54 S.W.3d at 857 .

2013See Brazelton v. State , 947 S.W.2d 644, 648 (Tex. App.—Fort Worth 1997, no pet.); Bobo v. State , 757 S.W.2d 58, 63 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d) (stating that a suggestion of the possibility of harm will not suffice to support a necessity defense), cert. denied , 490 U.S. 1066 (1989).

2024As our Supreme Court has stated, “these provisions require the municipality to demonstrate: (1) it intends to put the property to public use (the public use requirement); and (2) the condemnation is necessary to advance or achieve that public use (the necessity requirement).” City of Austin v. Whittington, 384 S.W.3d 766 , 772–73 (Tex. 2012).

2014Gov’t Code Ann. § 251.001(a) (West 2013) (setting forth requirements for exercise of eminent domain by municipality); Whittington, 384 S.W.3d at 772 (recognizing the public use requirement and the necessity requirement legislatively imposed on municipalities via local government code section 251.001).

2002And while we recognize that a defendant's testimony alone may be sufficient to support a necessity defense, see Hayes , 728 S.W.2d at 807 , it must actually raise the defensive issue before an instruction is proper, see Granger , 3 S.W.3d at 38 .

2002And while we recognize that a defendant’s testimony alone may be sufficient to support a necessity defense, see Hayes, 728 S.W.2d at 807 , it must actually raise the defensive issue before an instruction is proper, see Granger, 3 S.W.3d at 38 .