Texas Courts of Appeals

Rollins v. State

No. 03-24-00106-CR               3/13/25

Issue:

May a necessity instruction be given in a murder case in which the defendant gets an instruction regarding self-defense using deadly force?

Holding:

No. The Court agreed with six other Texas courts of appeals and concluded that a self-defense instruction for a case involving deadly force precludes a necessity instruction under Penal Code §9.32. “Because §9.32 plainly evidences a legislative purpose for excluding the defense of necessity under the circumstances of this case, the trial court did not err in denying the requested jury instruction on necessity.” Read opinion.

Commentary:

Penal Code §9.22(3) (necessity) bars a necessity instruction purely as a matter of law when “a legislative purpose to exclude the justification claimed for the conduct…plainly appear[s].” In joining numerous other appellate courts, the Third Court of Appeals echoes the holding that a necessity instruction is not warranted in these circumstances because §9.32 (self-defense) shows demonstrates a legislative purpose or intent to exclude an accompanying necessity instruction when the jury is instructed on self-defense using deadly force. (Note, though, that when self-defense does not involve the use of deadly force, an accompanying necessity instruction is not barred.) The rationale for this court and other appellate courts who have decided this issue the same way is that “[a] plain reading of §9.32 shows that the Legislature intended to impose a higher standard for justification of deadly force, permitting its use only when the actor’s life is immediately threatened by another’s use of unlawful deadly force[,]” whereas the defendant can establish the defense of necessity with substantially lower proof—i.e., by showing only that he reasonably believed that his conduct was immediately necessary to avoid imminent harm. Given this far lower threshold for necessity, “allowing an instruction on necessity when the appellant used deadly force and obtained a jury instruction on self-defense would undermine the legislative purpose of limiting the justifiable use of deadly force to preventing an immediate threat to one’s life.”

So far, the Court of Criminal Appeals has refused petitions for discretionary review in these cases and, so has not weighed in to resolve the split in authority among the intermediate appellate courts. Only time will tell if this will be the case wherein the CCA decides to settle the debate.  Until then, be mindful of which side your local court of appeals is on.

Texas Attorney General Requests

RQ-0586-KP                3/12/25

Issue:

Can a commissioners court rescind and re-adopt a different county budget after the annual budget was approved? Read opinion request.

Requested by:

Eduardo Serna, Zavala County Attorney