              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                        NO. PD-1645-08



                              STEPHEN GILBERT, Appellant

                                                 v.

                                   THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE TENTH COURT OF APPEALS
                            BRAZOS COUNTY

                K ELLER, P.J., filed a concurring opinion.

       The defense of “necessity” contains three elements:

       (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.1

The third element was not met in appellant’s case because a claim that the defendant was compelled


       1
           T EX . PENAL CODE §9.22 (emphasis added).
                                                                  GILBERT CONCURRENCE – 2

to engage in conduct by the use or threat of force is something that the Legislature plainly intended

to be addressed under the duress statute.

        The duress statute carefully and exhaustively defines when compulsion under the use or

threat of force will excuse otherwise criminal conduct by the defendant.2 If the offense is not a

felony, the force or threat of force must constitute compulsion of such a nature as “to render a person

of reasonable firmness incapable of resisting the pressure.”3 If the offense is a felony, then the threat

must be more substantial: the defendant must have engaged in the conduct because “he was

compelled to do so by threat of imminent death or serious bodily injury to himself or another.”4

Moreover, the excuse provided under the duress statute is not available “if the actor intentionally,

knowingly, or recklessly placed himself in a situation in which it was probable that he would be

subjected to compulsion.”5 In doing all of these things, the Legislature has already conducted the

balancing test that would be conducted by a jury under the second element of the necessity defense:

that is, the Legislature has already balanced when “the desirability and urgency of avoiding the

harm” caused by the threatened use of force “clearly outweigh, according to ordinary standards of

reasonableness, the harm sought to be prevented by the law proscribing the conduct.”6

        Moreover, duress is an “affirmative defense,”7 meaning that the defendant shoulders the


        2
            See Id., §8.05.
        3
            Id., §8.05(c).
        4
            Id., §8.05(a).
        5
            Id., §8.05(d).
        6
            See id. 9.22(2)
        7
            Id., §8.05(a), (b).
                                                                GILBERT CONCURRENCE – 3

burden of proving duress by a preponderance of the evidence,8 while necessity is a “defense,”9 which

requires an acquittal if the jury harbors a reasonable doubt on the matter.10 Allowing a necessity

defense when the evidence involves the type of conduct addressed by the duress statute would

circumvent the Legislature’s decision to place the burden on the defendant to prove the elements that

absolve him of criminal liability.

       Because “a legislative purpose to exclude the justification claimed for the conduct” does

“plainly appear,” I agree with the Court that appellant was not entitled to an instruction on the

defense of necessity. I concur in the Court’s judgment.

Filed: February 10, 2010
Do Not Publish




       8
            Id., §2.04(d).
       9
         Id., §§9.22 (“Conduct is justified if” elements of necessity defense are met.), 9.02 (“It is
a defense to prosecution that the conduct in question is justified under this chapter.”).
       10
            Id., §2.03(d).
