


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-06-00232-CR
 
Stephen Gilbert,
                                                                                    Appellant
 v.
 
The State of Texas,
                                                                                    Appellee
 
 

From the 272nd District Court
Brazos County, Texas
Trial Court No. 05-00944-CRF-272
 

MEMORANDUM  Opinion





 
            Stephen Gilbert was found guilty of
two counts of aggravated robbery.  Punishment was assessed by a jury in each
count at 30 years in prison.  We affirm.
            In Gilbert’s sole issue, he contends
the trial court erred in overruling his request for an instruction on the
defense of necessity.  See Tex.
Penal Code Ann. § 9.22 (Vernon 2003).  In order to raise necessity, a
defendant admits violating the statute under which he is charged and then
offers necessity as a justification which weighs against imposing a criminal
punishment for the acts or acts which violated the statute.  Young v. State,
991 S.W.2d 835 (Tex. Crim. App. 1999); Vrba v. State, 69 S.W.3d 713, 724
(Tex. App.—Waco 2002, no pet.).  Gilbert was charged with two counts of
aggravated robbery.  
            As in Young, Gilbert did not present
the defense of necessity during trial.  Gilbert did not admit to committing
aggravated robbery and assert he was justified in doing so by the defense of
necessity.  Instead, he specifically denied committing aggravated robbery.  He
denied hitting anyone, or demanding money from anyone, or taking money from
anyone, key elements alleged by the State.  He also denied being a lookout. 
Gilbert even went so far as to testify that he lied to police when he told them
he did commit the offenses.  Gilbert was therefore not entitled to a
jury instruction on the defense of necessity.  
            Because Gilbert was not entitled to a
jury instruction on necessity, the trial court did not err in overruling his
request for the instruction.  Gilbert’s sole issue is overruled, and the trial
court’s judgment is affirmed.
 
                                                                                    TOM
GRAY
                                                                                    Chief
Justice
 
Before
Chief Justice Gray,
            Justice
Vance, and
            Justice
Reyna
Affirmed
Opinion
delivered and filed November 14, 2007
Do
not publish
[CRPM]

