             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-17-00378-CR
     ___________________________

 JOSHUA DAVID MCINTOSH, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 396th District Court
         Tarrant County, Texas
       Trial Court No. 1479308D


   Before Gabriel, Kerr, and Pittman, JJ.
  Memorandum Opinion by Justice Gabriel
                           MEMORANDUM OPINION

      A grand jury indicted appellant Joshua David McIntosh with unlawful

possession of a firearm by a felon. See Tex. Penal Code Ann. § 46.04(a). While that is

generally a third-degree felony carrying a maximum prison term of ten years,

McIntosh’s indictment contained a paragraph alleging that at the time of his offense,

he had a prior felony conviction in Illinois for aggravated battery. See id. §§ 12.34(a),

46.04(e). Consequently, as an alleged habitual felony offender, McIntosh’s potential

punishment range increased to a maximum twenty-year prison term.                  See id.

§§ 12.33(a), 12.42(a). A jury convicted him of the charged offense, and the trial court

assessed his punishment at the maximum twenty-year term of confinement.

McIntosh appeals in three issues. We affirm.

                                 I. BACKGROUND

      On December 5, 2016, McIntosh was involved in a single-vehicle accident: the

car he had been driving left the roadway and struck a wooden electrical pole. Latonya

Lockett, who was driving a school bus for the Fort Worth ISD, came upon the

accident scene and stopped because the road was obstructed with debris. McIntosh

ran to Lockett’s bus screaming for help. When he reached the door, Lockett cracked

the door slightly to ask him if she needed to call 911. McIntosh attempted to step on

the bus, which prompted Lockett to tell him that he was not allowed to get on the bus

but that she would call 911 for him. McIntosh boarded the bus anyway. At the time,

there was one student on the bus.

                                           2
      McIntosh was wearing a black hoodie, and Lockett noticed the butt of a gun in

the hoodie’s pocket. Lockett called 911 to report the accident, but she did not report

that McIntosh had a gun because she feared he might use it if he learned that she had

seen it. From Lockett’s perspective, McIntosh was acting “[v]ery crazy, as if someone

was after him,” yet Lockett did not see anyone who actually was after McIntosh.

When some firefighters arrived, Lockett got their attention by sounding the bus’s

horn, and she made a motion with her hand in an attempt to alert them that McIntosh

had a gun.

      James Chastain, a fireman with the Fort Worth Fire Department, approached

the bus and started to board when Lockett asked him to get McIntosh off the bus.

Chastain asked McIntosh to get off the bus, and McIntosh replied that he wanted the

police to come, that he was not getting off the bus, and that nobody else was getting

off the bus, either. McIntosh told Chastain that he was being followed and chased,

though Chastain did not see anyone chasing McIntosh. Chastain attempted to place

himself between McIntosh and Lockett and the student, but McIntosh became

agitated and started putting his hands in his hoodie’s pocket. Chastain noticed that

McIntosh had a gun in the pocket and that McIntosh was pointing the muzzle toward

him. So in an effort to calm McIntosh down, Chastain backed up and stood at the

door of the bus. With the assistance of other firefighters, Chastain was able to get the

student off the bus.



                                           3
       About that time, Fort Worth police officer Matthew McCormick arrived having

been dispatched for a call that an erratic male had boarded a school bus and was being

hostile. Officer McCormick initially approached the school bus with his Taser drawn

and saw that McIntosh had his hands in the pocket of his hoodie.                   Officer

McCormick told McIntosh to show his hands, but McIntosh did not comply. Shortly

after this happened, Lockett was able to exit the bus. Officer McCormick then

noticed that McIntosh had a handgun in the hoodie’s pocket and that McIntosh was

pointing the gun at him, which led Officer McCormick to draw his firearm. When

backup arrived, Officer McCormick was able to disarm McIntosh, and although

McIntosh struggled and tried to resist, the police officers were eventually able to

remove him from the bus and arrest him.

       After his arrest, the trial court appointed counsel to represent Mcintosh. But

before trial, McIntosh requested to represent himself, a request the trial court granted.

He was later convicted for the charged offense and sentenced to twenty years’

confinement.

    II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY
   GRANTING MCINTOSH’S REQUEST TO REPRESENT HIMSELF

       In his first issue, McIntosh argues the trial court reversibly erred by granting his

request to represent himself or, alternatively, by not appointing standby counsel for

him.




                                            4
                     A. APPLICABLE LAW AND STANDARD OF REVIEW

       The Constitution guarantees a defendant the right to assistance of counsel in a

criminal prosecution. Gideon v. Wainwright, 372 U.S. 335, 339–45 (1963); Lopez v. State,

343 S.W.3d 137, 142 (Tex. Crim. App. 2011). It also affords a defendant who validly

waives his right to assistance of counsel the right to represent himself. Godinez v.

Moran, 509 U.S. 389, 400, 402 (1993); Faretta v. California, 422 U.S. 806, 807 (1975);

Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997). A waiver of counsel is

valid if it was made competently, knowingly and intelligently, and voluntarily. Godinez,

509 U.S. at 400, 402; Faretta, 422 U.S. at 807; Collier, 959 S.W.2d at 625.

       The competency that is required to waive the right to counsel is the

competence to waive the right, not the competence to represent oneself. Godinez,

509 U.S. at 400.     The decision to waive counsel and proceed pro se is made

“knowingly and intelligently” if it is made with a full understanding of the right to

counsel being abandoned, as well as the dangers and disadvantages of self-

representation. Fletcher v. State, 474 S.W.3d 389, 395–96 (Tex. App.—Houston [14th

Dist.] 2015, pet. ref’d) (citing Faretta, 422 U.S. at 835–36; Cudjo v. State, 345 S.W.3d

177, 184 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d)). The decision is made

“voluntarily” if it is uncoerced. Id. at 396 (citing Godinez, 509 U.S. at 401 n.12). As we

have previously said,

       A trial court need follow no formulaic questioning or particular script in
       ascertaining the knowing and voluntary nature of a defendant’s waiver of
       counsel. However, if such factors are not otherwise apparent from the

                                            5
      record, a trial court’s inquiry regarding the defendant’s waiver of counsel
      should center on his background, age, experience, and education. The
      defendant should be aware that there are technical rules of evidence and
      procedure, and he will not be granted any special consideration solely
      because he asserted his pro se rights.

Cofer v. State, No. 02-16-00101-CR, 2017 WL 3821885, at *2 (Tex. App.—Fort Worth

Aug. 31, 2017, no pet.) (mem. op., not designated for publication) (citations omitted).

The trial court’s inquiry is not whether the defendant has the skill and experience

necessary to represent himself effectively; rather, it is whether the defendant is aware

of the disadvantages of self-representation and makes the choice to represent himself

with “eyes open.” See Lathem v. State, 514 S.W.3d 796, 803–04 (Tex. App.—Fort

Worth 2017, no pet.).

      We review the trial court’s decision to allow for self-representation for an abuse

of discretion. See Chadwick v. State, 309 S.W.3d 558, 561 (Tex. Crim. App. 2010);

McCain v. State, No. 02-17-00210-CR, 2018 WL 3059964, at *5 (Tex. App.—Fort

Worth June 21, 2018, no pet.) (mem. op., not designated for publication).

             B. MCINTOSH’S WAIVER OF COUNSEL WAS KNOWINGLY
                       AND INTELLIGENTLY MADE

      The record shows that McIntosh’s request to waive counsel was knowingly and

intelligently made. Before granting McIntosh’s request, the trial court conducted an

appropriate Faretta inquiry. On October 6, 2017, the trial court conducted a pretrial

hearing during which McIntosh invoked his right of self-representation. During that

hearing, the trial court explained to McIntosh the charges against him, the habitual


                                           6
felony offender allegation, and the available range of punishment, and McIntosh made

it clear he understood the trial court’s explanations. The trial court learned that

McIntosh was thirty-nine years old, had graduated high school, and had taken a little

over a year’s worth of college credits, earning a 3.5 grade point average. McIntosh

also told the trial court that he had not taken any classes in law.

       The trial court made McIntosh aware that there were procedural rules he would

need to know: he would need to know the rules of evidence, he would need to know

how to present testimony, and he would need to know how to question witnesses.

And the trial court explained that if McIntosh were to represent himself, he would be

held to the same standard as any lawyer would be, meaning that if he tried to do

something that did not comply with the procedural rules, the trial court would not

allow it.

       The trial court even impressed upon McIntosh the detrimental effect his lack

of legal training and knowledge could have on his case if he were to represent himself:

the trial court asked McIntosh how many peremptory strikes he would have in picking

a jury and what rule of evidence formed the basis of a hearsay objection. McIntosh

acknowledged that he did not know. The trial court also told McIntosh that he would

not be entitled to standby counsel if he insisted upon representing himself. And the

trial court told McIntosh that it strongly advised him not to represent himself.

McIntosh stated he understood all of these admonishments.             At the October 6

hearing, the trial court declined McIntosh’s request to represent himself.

                                             7
      Prior to voir dire on October 16, 2017, McIntosh renewed his request to

represent himself. The trial court told McIntosh that it would allow him to represent

himself if he so desired but, referencing its prior admonishments at the October 6

hearing, the trial court again warned McIntosh that it would advise him not to do so.

The trial court informed McIntosh that regardless of his decision, his trial would go

forward as scheduled. It also reiterated that if McIntosh opted to represent himself,

he would be treated the same as any other lawyer and would be bound by the rules

just like any lawyer would be. The trial court warned McIntosh that it would not

appoint him a different attorney and that it would not appoint him standby counsel

either. Notwithstanding these admonishments, McIntosh reiterated that he wanted to

represent himself.

      McIntosh signed an admonishment of self-representation that acknowledged

the trial court had advised him of his right to be represented by counsel and his right

to be appointed counsel if he could not afford an attorney.         McIntosh further

represented in the acknowledgment that he understood “[his] right to have counsel

appointed for [him] free of charge if [he was] not financially able to employ counsel”;

that he “wish[ed] to waive that right”; that he “request[ed] the court to proceed with

[his] case without an attorney being appointed for [him]”; and that he was “waiv[ing

his] right to counsel.” The trial court granted McIntosh’s request and released his

appointed counsel.



                                          8
      We conclude the above reflects that the trial court adequately informed

McIntosh about the dangers and disadvantages of self-representation—including

apprising him that there are technical rules of evidence and procedure and that he

would not be granted any special consideration solely because he asserted his pro se

rights—such that McIntosh knew what he was doing when he waived his right to

counsel and made that decision with eyes open. See Faretta, 422 U.S. at 835; Williams v.

State, 252 S.W.3d 353, 356 (Tex. Crim. App. 2008).            We therefore conclude

McIntosh’s decision to waive counsel was made knowingly and intelligently.

        C. MCINTOSH’S WAIVER OF COUNSEL WAS VOLUNTARILY MADE

      To the extent McIntosh suggests that his waiver of counsel was not voluntary,

we disagree. There is nothing in the record to suggest his decision was coerced. To

the contrary, as outlined above, before granting McIntosh’s request to represent

himself, the trial court went to great lengths to ensure he understood what he was

doing, and even after McIntosh stated his preference to represent himself, the trial

court asked McIntosh several times whether he really was sure he wanted to do that,

affording him several opportunities to change his mind. And not only that, but the

trial court also at least twice told McIntosh that it advised him not to waive his right

to counsel.   Since the record shows McIntosh’s decision was not coerced, we

conclude it was not involuntarily made. See Fletcher, 474 S.W.3d at 396.




                                           9
       D. MCINTOSH’S WAIVER OF COUNSEL WAS COMPETENTLY MADE

      McIntosh contends the record shows his decision to represent himself was not

competently made.

      McIntosh argues his competency was at issue from the beginning of this case.

To support that assertion, he points to his counsel’s request that he undergo a

competency examination, as well as her statements at his October 6 pretrial hearing

that she “ha[d] concerns” about his competency. And he points to statements he

made during the October 6 pretrial hearing, suggesting they revealed his

incompetency.    We conclude, however, that the record reflects that McIntosh’s

decision to waive counsel and represent himself was competently made.

      We begin with McIntosh’s focus on his competency examination. The record

shows that McIntosh’s counsel requested the trial court to examine whether McIntosh

was competent to stand trial. The trial court granted that request, and McIntosh

underwent a psychological evaluation. Then, at the October 6 hearing, the trial court

asked McIntosh’s counsel whether he was mentally competent, and she replied that he

had undergone a psychological evaluation and that the evaluation showed he was

competent to stand trial. Rather than demonstrating that he was incompetent to

waive his right to counsel, the fact that McIntosh underwent a competency

examination showing he was competent to stand trial instead supports the conclusion

that he was competent to waive that right. See Chadwick, 309 S.W.3d at 560 (citing

Godinez, 509 U.S. at 399) (noting that in Godinez, the Supreme Court held that the

                                         10
standard for waiving the right to counsel is no higher than for competency to stand

trial).

          That leads to the comments McIntosh’s counsel made during the October 6

hearing. When the trial court asked McIntosh’s counsel whether he was mentally

competent, McIntosh’s counsel replied that his competency examination had showed

he was. But she then stated that she had “concerns as to whether psychologically

[McIntosh] was competent in terms of his defense.” She elaborated, stating that her

concern was that McIntosh’s decision not to accept a plea deal demonstrated that he

did not fully appreciate the strength of the State’s case against him. But those

particular comments do not go to whether McIntosh was competent to waive his

right to counsel. Rather, they speak to McIntosh’s technical legal knowledge, or lack

thereof, and thus are not relevant to a determination of whether he was competent to

waive his right to counsel.     See Fletcher, 474 S.W.3d at 397 (“[T]he competence

required of a defendant seeking to waive his right to assistance of counsel is the

competence to waive the right, not the competence to represent himself.”); see also

Faretta, 422 U.S. at 836 (noting that a defendant’s “technical legal knowledge, as such,

was not relevant to an assessment of his knowing exercise of the right to defend

himself”).

          We do, however, find some comments from McIntosh’s counsel relevant to the

issue of whether his decision to waive counsel was competently made. She stated that

she did not believe McIntosh was mentally incapacitated. She opined that he was a

                                          11
“bright, bright man” who understood the charges against him and was well versed in

his case. And she additionally said that McIntosh understood not only her role as his

defense counsel but also the roles of the judge, jury, and prosecutor.           Those

comments support a conclusion that McIntosh was competent to stand trial and, thus,

competent to waive his right to counsel. See Fuller v. State, 253 S.W.3d 220, 228 (Tex.

Crim. App. 2008) (noting a defendant is competent to stand trial if he has a sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding or a rational as well as factual understanding of the proceedings against

him).

        Finally, we turn to McIntosh’s own statements during the October 6 pretrial

hearing. During the hearing, McIntosh expressed his belief that his civil rights were

violated on the day he was arrested and that he was almost murdered. He stated that

he tried to tell his story to the FBI, the ATF, the United States Marshals, the attorney

general, the ACLU, and the governor; that he had received no response; and that

nobody had come to question him to find out what had happened. McIntosh also

asserted that he believed the evidence against him had been tampered with.

        McIntosh does not attempt to explain how these statements demonstrate his

waiver of counsel was not competently made. In any event, the trial court was in the

best position to determine whether McIntosh possessed the requisite competency to

waive his right to counsel. See Fletcher, 474 S.W.3d at 398. And as explained above,



                                          12
the record contains more than ample evidence to support the trial court’s

determination that he did.

           E. MCINTOSH WAS NOT ENTITLED TO STANDBY COUNSEL

      Finally, we address McIntosh’s alterative argument that the trial court erred by

not appointing him standby counsel. A trial court may appoint standby counsel for a

defendant who has waived his right to counsel, but the court need not do so, and the

court’s decision to not appoint standby counsel is not error. See Burgess v. State,

816 S.W.2d 424, 428 n.1 (Tex. Crim. App. 1991); Fulbright v. State, 41 S.W.3d 228, 235

(Tex. App.—Fort Worth 2001, pet. ref’d).

      In sum, because we conclude McIntosh’s waiver of counsel was valid and that

the trial court was not obliged to appoint him standby counsel, we hold the trial court

did not abuse its discretion by granting McIntosh’s request to represent himself. We

overrule McIntosh’s first issue.

     III. MCINTOSH DID NOT PRESERVE ERROR IN THE TRIAL
     COURT’S DECISION TO PRECLUDE HIM FROM RECALLING
                    HIMSELF AS A WITNESS

      In his second issue, McIntosh contends the trial court abused its discretion by

not allowing him to recall himself as a witness to introduce additional evidence.

                                   A. RELEVANT FACTS

      During the State’s case in chief, the prosecutor introduced a video from Officer

McCormick’s body cam that showed his interaction with McIntosh, and the

prosecutor also elicited testimony from Officer McCormick concerning his interaction

                                           13
with McIntosh. One of McIntosh’s defense theories was that he did not really have a

gun when he was on the bus and that the body cam video had been tampered with to

make it appear that he did. McIntosh’s cross-examination of Officer McCormick

included questioning on that very subject:

      [McIntosh]: . . . I mean, it doesn’t look -- you don’t even see my face
      not one time on that video. Not even on the ground when all that stuff
      is going on. Not until later down the road.

      [Officer McCormick]: One, it’s your voice. You can see yourself on the
      video.

      [McIntosh]: How do I know that that video hasn’t been tampered with?
      I can prove that today.

      [Officer McCormick]: Okay.

      [McIntosh]: I can. I can prove that. That picture is right over here.

      After the State rested its case, McIntosh called himself to the stand and told the

jury his version of the events that had led to his arrest. After the prosecutor cross-

examined McIntosh and the trial court gave McIntosh the opportunity to say anything

else he needed to say, the trial court told McIntosh that he could step down from the

witness stand. The trial court then asked McIntosh if he had any other evidence to

present, and he stated, “I have some visual evidence. I’d like to go over the video.”

The trial court responded by telling McIntosh that he needed to call a witness to go

over that evidence and that he could not just sit at counsel table and talk. When

McIntosh asked if he could call himself to the stand, the trial court responded,

“You’ve already called yourself.”

                                             14
      McIntosh told the trial court that there were plenty of people he could have

subpoenaed to testify at trial but that he was at a disadvantage due to his decision to

dismiss his attorney and represent himself. The trial court reminded McIntosh that he

had chosen to represent himself despite the fact that the trial court had told him that

he would be held to the same standard as lawyers who had completed law school and

passed the bar exam. The trial court again asked McIntosh if he had any other

witnesses, and McIntosh replied that he did not. Then the following occurred:

      THE COURT: Do you rest?

      [McIntosh]: I would not like to. I would like to show some actual visual
      evidence that that’s not me on that video with the tattoos.

      THE COURT: You may call whoever you wish to show that’s not you.
      Who is your witness?

      [McIntosh]: I don’t have one, Your Honor.

      THE COURT: So do you rest?

      [McIntosh]: Yes, I suppose so, Your Honor.

                 B. STANDARD OF REVIEW AND APPLICABLE LAW

      The reason McIntosh wanted to recall himself to the stand was so that he could

provide additional testimony as a sponsoring witness to support the admission of

visual evidence that would purportedly show that he was not the person on the body

cam video.    Thus, his complaint is predicated on the trial court’s exclusion of

evidence. See Love v. State, 861 S.W.2d 899, 903 (Tex. Crim. App. 1993) (noting that

defendant’s complaint about the trial court’s refusal to allow him to recall a

                                          15
prosecution witness for impeachment purposes was predicated upon an exclusion of

evidence—the impeachment testimony).

       We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). A trial court

abuses its discretion when its decision falls outside the zone of reasonable

disagreement. Id. at 83. Before an appellate court may reverse the trial court’s

decision, “it must find the trial court’s ruling was so clearly wrong as to lie outside the

zone within which reasonable people might disagree.” Id. (quoting Taylor v. State,

268 S.W.3d 571, 579 (Tex. Crim. App. 2008)).

       To complain on appeal about the trial court’s exclusion of evidence, the

complaining party must have properly preserved the complaint. As relevant here, one

of the things McIntosh needed to do to preserve his complaint was to comply with

rule of evidence 103, which requires a party complaining about the trial court’s

exclusion of evidence to show the substance of the excluded evidence by offer of

proof unless the substance is apparent from the context of the questions asked. Tex.

R. Evid. 103(a)(2); Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim. App. 2009). The

purpose of the offer of proof is to show what the witness’s testimony would have

been; otherwise, there is nothing before the appellate court to show reversible error in

the trial court’s ruling. Small v. State, 504 S.W.3d 330, 334 (Tex. App.—Houston [14th

Dist.] 2016, no pet.).



                                            16
      A party may make an offer of proof in question-and-answer form or in the

form of a concise statement by counsel. Tex. R. Evid. 103(b); Holmes, 323 S.W.3d at

168. If the latter, counsel must also concisely summarize the evidence offered and—if

not apparent—explain its relevance. Holmes, 323 S.W.3d at 168. An inadequate offer

of proof does not preserve error. Id. at 171; see also Mays v. State, 285 S.W.3d 884, 890

(Tex. Crim. App. 2009) (holding that error was not preserved when appellant failed to

proffer, with some degree of specificity, the substantive evidence he intended to

present).

      We conclude that McIntosh did not make an adequate offer of proof to

preserve error in the trial court’s decision to preclude him from retaking the witness

stand. McIntosh sought to recall himself to the stand in order to be a sponsoring

witness for the introduction of unspecified “visual evidence.” But McIntosh did not

apprise the trial court of what the substance of his testimony would be on recall with

any degree of specificity, let alone “some degree of specificity.” See Mays, 285 S.W.3d

at 890. For instance, he did not present the trial court with any reason to believe his

additional testimony would establish the admissibility of the purported visual

evidence. He did not provide a basis on which the trial court could have concluded

either that he would have been able to properly authenticate the purported visual

evidence or that it was self-authenticating, which is a prerequisite for admitting visual

materials into evidence.    See Tex. R. Evid. 901.      And he did not provide any



                                           17
information concerning what the visual evidence he sought to introduce was, where it

had come from, or why he was qualified to provide opinions regarding its contents.

      McIntosh’s inadequate offer of proof has left us unable to determine whether

the trial court’s decision to preclude him from recalling himself to the witness stand

was erroneous and harmful. See Holmes, 323 S.W.3d at 168 (noting the primary

purpose of an offer of proof “is to enable an appellate court to determine whether the

exclusion was erroneous and harmful”). Because McIntosh did not make an adequate

offer of proof, he failed to preserve his second issue. We accordingly overrule it.

         IV. MCINTOSH WAS NOT ENTITLED TO A NECESSITY
                         INSTRUCTION

      In his third issue, McIntosh argues the trial court erred by failing to charge the

jury on the defense of necessity.

      Necessity is a defensive issue. See Rogers v. State, 550 S.W.3d 190, 192 (Tex.

Crim. App. 2018). A trial court is not required to sua sponte instruct the jury on a

defensive issue that the defendant does not request, and a defendant may forfeit a

defensive issue by not preserving it at trial. See Vega v. State, 394 S.W.3d 514, 519

(Tex. Crim. App. 2013). A defendant cannot complain on appeal about the trial

court’s failure to include a defensive instruction that he did not preserve by request or

objection. Id. McIntosh concedes that he neither requested a necessity instruction

nor objected to the trial court’s omitting that instruction from the charge.

Accordingly, he did not preserve his third issue. See id.


                                           18
      But even assuming McIntosh preserved his complaint, he still would not

prevail. Since necessity is a confession-and-avoidance defense, McIntosh was not

entitled to a necessity instruction unless he admitted to the conduct—the act and the

culpable mental state—of the charged offense. See Juarez v. State, 308 S.W.3d 398, 399

(Tex. Crim. App. 2010); Spence v. State, Nos. 02-16-00222-CR, 02-16-00223-CR,

2017 WL 3526346, at *3 (Tex. App.—Fort Worth Aug. 17, 2017, pet. ref’d) (mem.

op., not designated for publication).       McIntosh stood charged with unlawful

possession of a firearm by a felon. See Tex. Penal Code Ann. § 46.04(a). As charged

in the indictment, the State had to prove (1) that he had been convicted of a felony

and (2) that on or about December 5, 2016, he intentionally or knowingly possessed a

firearm after that conviction and before the fifth anniversary of his release from

confinement or parole for that conviction.        See id. § 46.04(a)(1); Jones v. State,

338 S.W.3d 725, 741–42 (Tex. App.—Houston [1st Dist.] Apr. 14, 2011) (op. on

reh’g), aff’d, 364 S.W.3d 854 (Tex. Crim. App. 2012).

      McIntosh never admitted to knowingly or intentionally possessing a firearm on

or about December 5, 2016. In fact, he testified to the contrary. Thus, even if

McIntosh preserved his third issue, he nevertheless was not entitled to a necessity

instruction because he did not admit to the conduct of the charged offense. See Juarez,

308 S.W.3d at 403–04.       And since McIntosh was not entitled to a necessity

instruction, the trial court did not err by omitting that instruction from the jury

charge. See Ray v. State, 419 S.W.3d 467, 470 (Tex. App.—Waco 2013, pet. ref’d)

                                          19
(holding that because appellant did not admit to committing the conduct of the

charged offense, the trial court did not err by denying his request for a necessity

instruction).

       Because McIntosh did not preserve his third issue, and because even assuming

he did, the trial court did not err by omitting a necessity instruction from the charge,

we overrule McIntosh’s third issue.

                                 V. CONCLUSION

       Having overruled all of McIntosh’s issues, we affirm the trial court’s judgment.

See Tex. R. App. P. 43.2(a).


                                                      /s/ Lee Gabriel

                                                      Lee Gabriel
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: February 28, 2019




                                          20
