Comment

General Matters. The instruction on necessity is based on the Committee’s general approach to defensive matters as described in chapter 1 of this product.

The necessity defense language is included in the instruction at CPJC 49.16 only. It could, of course, be modified for any of the other instructions to which the defense applies.

As “necessity” is defined in the Texas Penal Code, it has what might be called a third element: “a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.” Tex. Penal Code § 9.22(3).

The court of criminal appeals has indicated in dicta that this last aspect of the necessity standard is a matter of law that should not be submitted to the jury. See Williams v. State, 630 S.W.2d 640, 643 (Tex. Crim. App. 1982) (“The issue of a plain legislative purpose to exclude the justification is one of law, and the jury may not consider it.”). Accord Pennington v. State, 54 S.W.3d 852, 857 (Tex. App.—Fort Worth 2001, pet. ref’d) (“The requirements of [Penal Code] subsections 9.22(1) and (2) must be satisfied by evidence, while subsection (3) presents a question of law.”).

A defendant’s right to jury trial under the Sixth Amendment may require jury submission of what is technically an element of a substantive law defense to the charged offense. Apprendi v. New Jersey, 530 U.S. 466 (2000).

The Committee was of the view that whether a legislative purpose to exclude the justification offered plainly appears would best be treated as a matter of law for the court to determine. Even if as a purely theoretical matter a defendant has a right to jury submission of this matter, the Committee believed that no defendant would be harmed by failing to submit this to the jury. On the contrary, if the jury were instructed to address the matter, this could only harm a defendant. No possible harm can be done to criminal defendants by treating this as a matter of law to be decided by the judge. If the judge determines that the legislature has not plainly indicated a purpose to exclude the offered justification, defendants could be harmed only by in addition asking the jury to address in essence whether the defense applies to the type of case before it.

Consequently, at the expense of some trauma to the language of the statute, the Committee felt that the necessity defense instruction to be submitted to the jury should in fact have only two elements.

The Committee believed that a defendant’s Sixth Amendment right to jury trial would not be violated by this approach because jury submission of the final “element” of the defense could only harm the defendant.

Further discussion of the necessity defense may be found in chapter 9.

“Unanimity” Instruction on Necessity. The instruction does not include a requirement that the jury be unanimous on the specific basis on which it finds against the defendant on the defense of necessity. It does require the jury to be unanimous in finding that the state has established that necessity does not apply. As explained in chapter 1, this is apparently current Texas law, although there is some uncertainty.