The following is a summary of selected criminal opinions issued by the Third Court of Appeals from March 2025. The summary is an overview; please review the entire opinions. The subsequent history is current as of September 5, 2025.
JURY INSTRUCTIONS – NECESSITY: Trial court did not err during murder trial by failing to include in the jury charge an instruction on the defense of necessity in addition to an included instruction on self-defense.
Rollins v. State, 709 S.W.3d 770 (Tex. App.—Austin 2025, pet. ref’d). Rollins was charged with capital murder for shooting and killing victims Rogers and Satterwhite. During the charge conference, Rollins requested an instruction on self-defense, which the trial court granted, and the defense of necessity, which the trial court denied. Rogers argued that the defense of necessity was raised by his testimony showing that he had been robbed and threatened with a gun before he shot the victims, both of whom Rollins described as dangerous people known to carry weapons. Rollins also testified that Rogers threatened him on the phone before he shot her and that Satterwhite mentioned threats against Rollins and was fumbling with something in his hands before Rollins shot him.
The defense of necessity applies when: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. The third requirement was at issue here. There was a split among the courts of appeals regarding whether a necessity instruction may be given in a murder case in which the defendant is given an instruction on self-defense using deadly force. Many of the courts had held that in murder cases in which the defendant claims self-defense, the self-defense statute “evidences a legislative intent that precludes an accompanying necessity instruction.” The Austin court agreed with these courts. The Court explained 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,” while a necessity defense involved “a substantially lower showing,” requiring only that the conduct be necessary to “avoid imminent harm.” Thus, allowing an instruction on both defenses “would undermine the legislative purpose of limiting the justifiable use of deadly force to preventing an immediate threat to one’s life.” Accordingly, the trial court did not err in denying the request for a necessity instruction.
JURY INSTRUCTIONS – TERRORISTIC THREAT: Harassment is not a lesser-included offense of terroristic threat, which is a nature-of-the-conduct offense.
Johnson v. State, 710 S.W.3d 447 (Tex. App.—Austin 2025, no pet.). Johnson was convicted of making a terroristic threat to a judge. On appeal, Johnson argued that the trial court erred by (1) failing to include a lesser-included-offense instruction for the offense of harassment and (2) failing to include in the definition for “intentionally” an instruction pertaining to the result of his alleged conduct. Regarding the lesser-included offense, the Court compared the elements of each offense. A person commits the offense of terroristic threat “if he threatens to commit any offense involving violence to any person or property with intent to . . . influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state.” The offense of harassment included an additional element, the “intent to harass, annoy, alarm, abuse, torment, or embarrass another,” that was not included in the offense of terroristic threat. The harassment statute also required that the subject of the threat be the person receiving the threat, a member of that person’s family, or the person’s property. Because of these additional elements, harassment was not a lesser-included offense of terroristic threat.
Regarding the definition of the culpable mental state in the jury charge, the Court explained that a jury charge on a culpable mental state should be tailored to the gravamen of the offense, which is either the “nature of the conduct” or the “result of the conduct” for intentional mental states. The Court concluded that “the gravamen for the terroristic-threat statute is the nature of the conduct and that the offense proscribes conduct regardless of what result might occur from the conduct.” Thus, “the trial court did not err by omitting the ‘result of his conduct’ language from the definition for ‘intentionally’ in the jury charge.”