Bowen, Lydia Hernandez ( 2005 )


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  • IN THE COURT OF CRIMINAL APPEALS

    OF TEXAS




    NO. PD-1873-03


    LYDIA H. BOWEN, Appellant


    v.



    THE STATE OF TEXAS




    ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

    FROM THE SECOND COURT OF APPEALS

    WISE COUNTY


       Keller, P.J., filed a dissenting opinion.



    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.

    A corollary of excluding the defense of necessity when it is wholly redundant of another defense is that the defense of necessity should be excluded when it is based solely upon less evidence than required for raising another defense. One of the elements of the defense of necessity is that "a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear." (1) Each defense to criminal prosecution contains the elements it does because the Legislature deemed it appropriate to require certain circumstances to be present before a defense could be invoked. Permitting the necessity defense solely upon less evidence than needed to raise another defense amounts to circumventing these legislatively prescribed requirements. Rather, in comparing the defense of necessity to another potentially applicable defense, the evidence should raise at least one circumstance of mitigating character that cannot be given full effect within the elements of that other defense.

    Turning to the present case, we see that appellant received an instruction on self-defense. In the resisting arrest context, the self-defense statute requires among other things a showing that, before the actor offered any resistance, the officer used or attempted to use "greater force than necessary to make the arrest" and the actor reasonably believed her response was immediately necessary to protect herself against that type of force. (2) All of appellant's evidence regarding the violent nature of the arrest and the pain caused as a result could be given full effect in the context of that self-defense requirement. The evidence did not, for example, show that appellant had some peculiar infirmity or condition, unknown to the officer, that would have made the officer's reasonable conduct a threat to appellant's safety. Under the circumstances, appellant's evidence raised nothing more than the issue of self-defense to the use of unnecessary force. Consequently, the trial court did not err in declining to give an instruction on the defense of necessity.

    Keller, Presiding Judge

    Date filed: May 4, 2005

    Publish



    1. Tex. Pen. Code §9.22(3).

    2. Tex. Pen. Code §9.31(c):



    The use of force to resist an arrest or search is justified:



    (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and



    (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.

Document Info

Docket Number: PD-1873-03

Filed Date: 5/4/2005

Precedential Status: Precedential

Modified Date: 9/15/2015