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My AccountChapter 8
- 8.1 Categorizing Defenses
- 8.2 Burdens of Proof and Production under Texas Penal Code Chapter 2
- 8.3 Explaining to Jury State’s Burden of Proof on Defenses
- 8.4 Nonstatutory Defensive Positions and Jury Instructions
- 8.5 Instructions on Inconsistent Defenses
- 8.6 “Confession and Avoidance”: Need to Admit Offense
- 8.7 Failure to Instruct on Defense Cannot Be “Fundamental” Error
- 8.8 Defendant’s Right to Have No Instruction on Defense
- 8.9 Relationship of Necessity to Other Defensive Positions
- 8.10 Insanity Generally
- 8.11 Consequences of Insanity Acquittal
- 8.12 Defining “Wrong”
- 8.13 Defining “Severe Mental Disease or Defect”
- 8.14 Instruction—Insanity
- 8.15 Diminished Capacity Generally
- 8.16 Basic Framework for Mistake of Fact under Texas Law
- 8.17 Pre-1974 Texas Mistake-of-Fact Law
- 8.18 Other Jurisdictions and Potential Constitutional Problem
- 8.19 Possible Alternative Approach—Two Mistake-of-Fact Defenses
- 8.20 Reasonableness of Mistake as Matter for Court Rather Than Jury
- 8.21 Committee’s Approach
- 8.22 Instruction—Mistake of Fact
- 8.23 Texas Penal Code Distinction between Mistakes of “Fact” and Mistakes of “Law”
- 8.24 Instruction—Mistake of Law
- 8.25 Voluntary Intoxication Generally
- 8.26 Instruction—Voluntary Intoxication
- 8.27 Involuntary Intoxication Generally
- 8.28 The Committee’s Approach to Involuntary Intoxication
- 8.29 Instruction—Involuntary Intoxication
- 8.30 General Law of Duress
- 8.31 Instruction—Duress (Felony)
- 8.32 Instruction—Duress (Misdemeanor)
- 8.33 Entrapment Generally
- 8.34 Status of “Informers”
- 8.35 Instruction—Entrapment
Comment
The case law leaves open some question whether a defendant is entitled to an instruction on the defense of necessity if the evidence also raises a different—and likely more qualified—defensive doctrine.
In Bowen v. State, 162 S.W.3d 226 (Tex. Crim. App. 2005), the trial judge had instructed the jury on self-defense. The question before the court of criminal appeals was whether the defendant was also entitled to an instruction on necessity. Presiding Judge Keller reasoned that the nature of the two defenses meant that necessity was not available:
By its nature, the “necessity” defense is a catch-all provision designed to afford a defense in situations where a defense is clearly warranted but is not afforded by any other statutory provision. I would hold that a necessity defense is not raised if the evidence presented merely raises an issue under another statutory defense. Otherwise, entitlement to an instruction for certain defenses such as self-defense and defense of a third person would always also entail entitlement to an instruction on the defense of necessity. Submitting wholly redundant defenses would not aid the truth-finding function of the trial and risks confusing the jury.
Bowen, 162 S.W.3d at 230 (Keller, P.J., dissenting). The majority rejected this reasoning, apparently on the following grounds:
We have recognized the independence of separate defenses by holding that a defendant is entitled to the submission of every defensive issue raised by the evidence, even if the defense may be inconsistent with other defenses. We reaffirm this principle by holding self-defense’s statutorily imposed restrictions do not foreclose necessity’s availability.
Bowen, 162 S.W.3d at 229–30 (footnote omitted).
Bowen may not govern in situations where the other defense is limited in a manner more directly inconsistent with necessity. One court has held, for example, that Bowen does not govern where the defendant has received an instruction on deadly force in self-defense and that instruction includes a requirement of retreat in certain circumstances. Perry v. State, No. 06-07-00113-CR, 2008 WL 3287038 (Tex. App.—Texarkana Aug. 12, 2008, no pet.) (not designated for publication) (inclusion of justification of necessity, on facts that implicate application of self-defense using deadly force, would undermine legislature’s purpose in imposing duty to retreat). Contra Fox v. State, No. 13-03-230-CR, 2006 WL 2521622 (Tex. App.—Corpus Christi–Edinburg Aug. 31, 2006, pet. ref’d) (not designated for publication).
An approach considerably different than that in Bowen was suggested by Shaw v. State, 243 S.W.3d 647 (Tex. Crim. App. 2007), involving the so-called “Good Samaritan” defense to injury of a child. The statute, now section 22.04(k) of the Penal Code, provides: “It is a defense to prosecution under this section that the act or omission [causing injury or serious bodily injury to a child] consisted of . . . emergency medical care administered in good faith and with reasonable care by a person not licensed in the healing arts.” Tex. Penal Code § 22.04(k). In Shaw, the court commented that this provision “operates as a kind of particularized example of the justification of necessity, applicable specifically in prosecutions for injury to a child.” Shaw, 243 S.W.3d at 659.
If Shaw’s characterization is correct, it would seem that a defendant is never entitled on the basis of the same facts to have the jury instructed on both the general necessity justification and the specific section 22.04(k) defense.
This reasoning was also the thrust of Gilbert v. State, No. PD-1645-08, 2010 WL 454966 (Tex. Crim. App. Feb. 10, 2010) (not designated for publication). At Gilbert’s aggravated-robbery trial, he testified he participated in the robbery because his companion Hall threatened to kill him and others if he did not take part. The trial judge instructed the jury on duress but refused to instruct on necessity. Finding no error, the majority concluded that necessity was not raised by the evidence:
Th[e] evidence of Hall’s alleged threats . . . in order to coerce appellant into participating in the commission of the offenses raises the defense of duress—appellant acted because he was compelled by the threats from Hall and the threats of harm were imminent, at least as to the restaurant workers. The justification of necessity, however, is not based on external pressure; the statute does not require coercive behavior by a third party. Rather, the language of the statute indicates that “necessity” turns on a personal choice made by the actor based on the relative desirability of acting or not acting: “the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented . . . .” Necessity is raised if the choice to act is an internal decision, not coerced by another. . . . Taking appellant’s version as true, he was clearly coerced and he sufficiently admitted the conduct charged, but all of his admitted acts were compelled by another. We hold that the evidence did not raise the justification of necessity . . . .
Gilbert, 2010 WL 454966, at *5. If evidence suggesting that duress applies renders necessity inapplicable, evidence suggesting that self-defense applies might also seem to render necessity inapplicable. There may be some tension between Bowen and Gilbert and perhaps between Shaw and Gilbert.
Under Gilbert, a defendant is entitled to instructions on both necessity and another overlapping defense only if the other and overlapping defense makes the accused’s responsibility “turn[] on a personal choice made by the [accused] based on the relative desirability of acting or not acting.” Gilbert, 2010 WL 454966, at *5. The defendant is not entitled to both instructions if the other and overlapping defense makes the accused’s responsibility turn on whether the accused was “compelled.” Self-defense, as raised in Bowen, would seem to contend that the accused was confronted with coercion rather than an opportunity for personal choice based on the relative desirability of the presented options.
Gilbert was designated “do not publish.” Under Texas Rule of Appellate Procedure 77.3, the opinion has “no precedential value and must not be cited as authority by counsel or by a court.” Tex. R. App. P. 77.3. Nevertheless, in Juarez v. State—a published opinion of the court—the court explained that it was “necessary” to explain why Gilbert did not render the issue in Juarez moot. It then distinguished Gilbert and commented that “even if Juarez had admitted to the conduct, Gilbert does not bar the application of the necessity defense under the facts of this case.” Juarez v. State, 308 S.W.3d 398, 406 (Tex. Crim. App. 2010). Despite rule 77.3, Juarez treated Gilbert as worth discussing and as requiring distinction.
Gilbert, then, may have more significance than its “do not publish” designation suggests.