Criminal Pattern Jury Charges (Criminal Defenses) (2015)
Chapter 28. Necessity
CPCJ 28-2 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 state has proved that the defense of necessity does not apply.

Necessity

You have heard evidence that, when the defendant [insert specific conduct constituting offense], he believed that his conduct was necessary to avoid [describe harm defendant sought to avoid, such as the death of or serious bodily injury to someone].

Relevant Statutes

A person’s conduct that would otherwise constitute the crime of [offense] is not a criminal offense if both—

1. the person reasonably believed the conduct was immediately necessary to avoid imminent harm, and

2. 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

If you have found that the state has proved the offense beyond a reasonable doubt, you must next decide whether the state has proved that the defendant’s conduct was not justified by necessity.

To decide the issue of necessity, you must determine whether the state has proved, beyond a reasonable doubt, that either—

1. the defendant did not reasonably believe the conduct 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

2. 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, in Texas Criminal Pattern Jury Charges—General, Evidentiary & Ancillary Instructions.]