                             NUMBER 13-12-00273-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG

STEVEN BATTLES,                                                                         Appellant,

                                                  v.

THE STATE OF TEXAS,                                                                     Appellee.


                       On appeal from the 24th District Court
                            of Victoria County, Texas.


                             MEMORANDUM OPINION
                 Before Justices Garza, Benavides, and Perkes
                   Memorandum Opinion by Justice Perkes
       Appellant Steven Battles appeals two convictions: (1) burglary of a habitation, a

first-degree felony, see TEX. PENAL CODE ANN. § 30.02(a)(3), (d) (West 2011); and

(2) injury to an elderly person, a third-degree felony, see id. § 22.04(a)(3) (West 2011).1


       1
         A person commits burglary of a habitation if, without the effective consent of the owner, the
person enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.
Appellant pleaded not guilty to the two charges, but a jury found him guilty. Appellant

pleaded true to four enhancement paragraphs, which enhanced the respective offenses

to a repeat-felony-offender felony, see id. § 12.42(c)(1) (West 2011), and a

second-degree felony, see id. § 12.42(a)(3). The trial court assessed punishment at

imprisonment for forty years for the burglary and fifteen years for injury to an elder, with

the sentences to run concurrently. By one issue, appellant argues he was entitled to a

necessity defense instruction. We affirm.

                                         I. BACKGROUND2

        The State’s two charges against appellant relate to a single episode. Appellant

approached a house, and rang the doorbell. When the elderly homeowner approached

the locked, closed, and windowed “storm door,” appellant asked to use the telephone.

The elderly woman did not admit appellant into her home, prompting appellant to beat on

the door’s glass, and to force the door open.                  Appellant then reached across the

threshold and grabbed her around the neck, injuring her.

                                         II. JURY CHARGE

        In his sole issue on appeal, appellant argues the trial court erred by failing to allow

him an instruction in the jury charge regarding the defense of necessity during the liability




TEX. PENAL CODE ANN. § 30.02(a)(3) (West 2011). A person causes injury to an elderly individual if he
intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or
recklessly by omission, causes bodily injury to an elderly individual. Id. § 22.04 (West 2011). Appellant
does not challenge the sufficiency of the evidence to support his conviction.
        2
           Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.

                                                     2
stage of the trial. Appellant contends there was sufficient evidence adduced to warrant

the necessity instruction.3

A.      Standard of Review and Applicable Law

        When an appellate court is presented with an argument that a trial court committed

jury charge error, the reviewing court must conduct a two-step inquiry:                         “First, the

reviewing court must determine whether the jury charge contains error. Second, the

court must determine whether sufficient harm resulted from the error to require reversal.”

Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998) (en banc); see Benn v. State,

110 S.W.3d 645, 648 (Tex. App.—Corpus Christi 2003, no pet.). Once an appellate

court finds jury-charge error, it applies one of the two following standards of review:

“Where there has been a timely objection made at trial, an appellate court will search for

only ‘some harm.’ By contrast, where the error is urged for the first time on appeal, a

reviewing court will search for ‘egregious harm.’” Mann, 964 S.W.2d at 641 (quoting

Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994)).

B.      Discussion

        Section 9.22 of the Texas Penal Code states that a person’s conduct is justified if:

        (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)     the legislative purpose to exclude the justification claimed for the
                conduct does not otherwise plainly appear.

        3
           Appellant did not request an instruction on the defense of necessity, and did not object to the
absence of the instruction in the jury charge. During the punishment phase, the trial court later noted, “For
the Charge of the Court to the Jury, there was not sufficient . . . evidence for a necessity defense to be
submitted to the jury.”
                                                     3
TEX. PENAL CODE ANN. § 9.22 (West 2011).

       When it applies, the necessity defense operates as a justification for committing

the charged offense once the defendant admits that he committed the offense. Juarez v.

State, 308 S.W.3d 398, 403–04 (Tex. Crim. App. 2010) (confession-and-avoidance

doctrine applies to defense of necessity). To be entitled to a necessity instruction, “a

defendant must admit to the conduct—the act and the culpable mental state—of the

charged offense . . . .” Id. at 399.

       Appellant never admitted committing to the charged conduct, but rather pleaded

not guilty, and challenged the State’s proof supporting the charges. Therefore, he was

not entitled to an instruction regarding the defense of necessity. See id; Young v. State,

991 S.W.2d 835, 839 (Tex. Crim. App. 1999) (en banc); see also Seymour v. State, No.

13-11-00572-CR, 2012 WL 3761901, at *2 (Tex. App.—Corpus Christi Aug. 30, 2012, no

pet.) (mem. op., not designated for publication). There being no error in the jury charge,

we overrule appellant’s sole issue on appeal.

                                       III. CONCLUSION

       We affirm the trial court’s judgment.

                                                   GREGORY T. PERKES
                                                   Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
3rd day of October, 2013.




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