Chapter 9
Justification Defenses
9.2 Instruction—Necessity
[Insert instructions for underlying offense.]
If you all agree the state has proved, beyond a reasonable doubt, each of the [number] elements listed above, you must next consider whether the defendant is not guilty because of the defense of necessity.
Necessity
It is a defense to the offense of [offense] if both—
- the person reasonably believed the conduct was immediately necessary to avoid imminent harm, and
- the desirability and urgency of avoiding the harm clearly outweighed, according to ordinary standards of reasonableness, the harm sought to be prevented by the law prohibiting the conduct constituting the crime.
Burden of Proof
The defendant is not required to prove that necessity applies to this case. Rather, the state must prove, beyond a reasonable doubt, that the defendant did not act out of necessity.
Definition
Reasonable Belief
“Reasonable belief” means a belief that an ordinary and prudent person would have held in the same circumstances as the defendant.
Application of Law to Facts
To decide the issue of necessity, you must determine whether the state has proved, beyond a reasonable doubt, that either—
- the defendant did not reasonably believe the conduct that constituted [offense, e.g., driving while intoxicated] was immediately necessary to avoid an imminent harm, in this case [describe harm defendant sought to avoid, such as the death of or serious bodily injury to someone]; or
- the desirability and urgency of avoiding [describe harm defendant sought to avoid, such as the death of or serious bodily injury to someone] did not clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law prohibiting [insert specific offense].
You must all agree that the state has proved, beyond a reasonable doubt, either element 1 or 2 listed above. You need not agree on which of these elements the state has proved.
If you find that the state has failed to prove, beyond a reasonable doubt, either element 1 or 2 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the elements of the offense of [insert specific offense], and you believe, beyond a reasonable doubt, that the defendant did not act out of necessity, you must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Comment
The defense of necessity is provided for in Tex. Penal Code § 9.22. The definition of “reasonable belief” is based on Tex. Penal Code § 1.07(a)(42).
The necessity statute, Tex. Penal Code § 9.22, provides:
Conduct is justified if:
A proper jury charge on the defense of necessity includes the first two subsections, but not the third. See Williams v. State, 630 S.W.2d 640, 642–43 (Tex. Crim. App. 1982) (noting that the third subsection is a question of law, and the jury may not consider it).
Relationship of Necessity to Other Defensive Positions. There is some question whether a defendant is entitled to an instruction on the defense of necessity if the evidence also raises a different defensive doctrine.
In Bowen v. State, 162 S.W.3d 226 (Tex. Crim. App. 2005), the trial judge instructed the jury on self-defense, and the question before the court of criminal appeals was whether she 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 analysis, 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).
Judge Cochran indicated: “I agree with the majority that the statutory defenses of self-defense under Texas Penal Code, section 9.31, and necessity under section 9.22 are not mutually exclusive in the context of a resisting arrest prosecution.” Bowen, 162 S.W.3d at 231 (Cochran, J., dissenting). She concluded, however, that the testimony in the case did not raise necessity as well as self-defense. While she indicated that in some situations necessity could be raised in a resisting arrest case (see Bowen, 162 S.W.3d at 233–34), it is not clear whether she believed a defendant would ever be entitled to instructions on both necessity and some other defense such as public duty.
One court has held that Bowen does not apply 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, at *3 (Tex. App.—Texarkana Aug. 12, 2008, no pet.) (mem. op.) (not designated for publication) (“[T]he inclusion of the justification of necessity, on facts such as these which implicate the application of self-defense using deadly force, would undermine the Legislature’s purpose in imposing the duty to retreat.”). ContraFox v. State, No. 13-03-230-CR, 2006 WL 2521622 (Tex. App.—Corpus Christi–Edinburg Aug. 31, 2006, pet. ref’d) (mem. op.) (not designated for publication) (following Bowen).
See also CPJC 8.30.