Texas Criminal Pattern Jury Instructions (TCPJI)
Chapter 3. Defenses & Special Evidentiary Charges
XXVII. SELF DEFENSE / DEFENSE OF THIRD PERSON / DEFENSE OF PROPERTY
3:1790 Self-Defense and Necessity
The law of self-defense and necessity do not overlap. Necessity instructions should not be given when the jury is instructed on self-defense because, under necessity, the defendant is not bound by the “retreat” requirement. No harm exists when a self-defense instruction is refused and jurors are provided a necessity charge as necessity is a broader instruction. Banks v. State, 955 S.W.2d 116 (Tex.App.-Fort Worth 1997, no pet.).
However, several more recent cases indicate that a defendant is most likely entitled to instructions on both self-defense and necessity. See, e.g., Fox v. State, No. 13-03-230-CR, slip op., 2006 WL 2521622 (Tex.App.-Corpus Christi August 31, 2006, pet. ref’d) (not designated for pub.) (reversing conviction where trial court refused instruction on necessity defense because self-defense was submitted in charge). See also, Bowen v. State, 162 S.W.3d 226, 230 (Tex.Crim.App. 2005) (Keller, J., dissenting because “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.” (emphasis in original)). But see, contra, Searcy v. State, 231 S.W.3d 539, 542-44 (Tex.App.-Texarkana 2007, pet. ref’d) (affirming conviction where trial court refused to give necessity instruction in addition to self-defense instruction because “inclusion of the justification of necessity, on facts such as these which clearly implicate the application of self-defense using deadly force, would undermine the Legislature’s purpose in imposing the duty to retreat”). However, since retreat is no longer required under the law of self-defense, this reasoning is obsolete. Also see notes above on Right to Seek Resolution of Differences.