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Wilson v. State6/20/2003
e evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the defense." Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996); Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991). When evidence from any source raises a defensive issue, and the defendant properly requests a jury charge on that issue, the trial court must submit the issue to the jury. See Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993); McGarity v. State, 5 S.W.3d 223, 226 (Tex. App.-San Antonio 1999, no pet.). In fact, the trial court must grant the defendant an instruction regardless of whether the issue is raised by the defendant's testimony alone or otherwise. McGarity, 5 S.W.3d at 226. Thus, if the issue is raised by any party, refusal to submit the requested instruction is an abuse of discretion. Id. When the evidence fails to raise a defensive issue, however, the trial court does not err in refusing a requested instruction. Id. at 227.
To determine whether the issue of necessity was raised, we must view the evidence in light of the statutory provision. The Texas Penal Code provides that the defense of necessity is available for criminal conduct only if: (1) the defendant reasonably believes his conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweigh the harm sought to be prevented by the law prescribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise appear. Tex. Pen. Code Ann. § 9.22 (Vernon 2003); see McGarity, 5 S.W.3d at 227. For the evidence to support submission of the necessity defense to the jury, the defendant must admit to the offense. McGarity, 5 S.W.3d at 227. The necessity instruction is not required unless there was evidence from the accused admitting the offense, and henceforth claiming justification for having committed the offense because of other facts. Id.; Maldonado v. State, 902 S.W.2d 708, 712 (Tex. App.- El Paso 1995, no pet.).
Wilson relies on Darty v. State for the proposition that a defendant is entitled to an instruction of necessity even if he pled not guilty to the charge. 994 S.W.2d 215, 219 (Tex. App.-San Antonio 1999, pet. ref'd). Darty, however, is distinguishable from the instant case because the defendant in that case initially pled not guilty, but then "testified at length as to what he experienced in terms of harassment and the use of undue force[,] which he resisted before he was told he was under arrest." Darty, 994 S.W.2d at 219. The Darty Court concluded that the defendant's "testimony presented evidence of state of mind as to his reasonable belief that his conduct was immediately necessary to avoid imminent harm." Id. The Darty Court held, therefore, that because there was evidence that gave rise to the defense of necessity, and there was conflicting versions of the facts, the trial court erred in refusing defendant's requested charge on necessity. Id. at 219-220.
In this case, however, Wilson pled not guilty and did not testify at any point or otherwise admit that he committed the offense or any conduct that constituted the offense. Furthermore, there was no evidence in the record that gave rise to the defensive issue of necessity. Wilson contends that his statement and the cross-examination of the State's lay witnesses, the firearm examiner's testimony, and the testimony of the evidence collector clearly showed a possibility that petitioner never fired a weapon. Wilson further argues that Hancock's testimony that he saw Wilson with his hand behind his back shows that it is entirely possible that Hancock
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