                                                                                                 PD-1354-14
                                                                               COURT OF CRIMINAL APPEALS
                                  PD-1354-14                                                   AUSTIN, TEXAS
April 27, 2015                                                               Transmitted 4/24/2015 11:27:03 PM
                                                                                Accepted 4/27/2015 2:54:30 PM
                                                                                                ABEL ACOSTA
                                                                                                        CLERK

                              In the Texas Court of Criminal Appeals

                 Chester A Staples, Appellant              Cause PD-1354-14
                 v.                                        From the 12th Court
                 The State of Texas, Appellee              of Appeals of Texas


                            MOTION FOR REHEARING ORDER
                            DENYING DISCRETIONARY REVIEW


                 Honorable Court of Criminal Appeals:
                   Appellant Chester Staples seeks a rehearing of the order
                 denying his petition for discretionary review. The motion is
                 not made for delay, but is instead based on two very recent

                 appellate opinions that reach irreconcilable results regarding
                 necessity in a self-defense scenario. Because this case turns on
                 the same necessity issue and its result differs from both
                 intervening opinions, the Court is well within its prerogative
                 to grant the motion for rehearing to consider the issue.
                   A conflict between courts on a single issue is substantial.

                 See, e.g., Tex. Rule App. Proc. 66.3(a). Because conflict on the
                 issue arose after the denial order and before the request for
                 rehearing, it is an intervening circumstance that justifies a

                 rehearing in this case. See Tex. Rule App. Proc. 79.2(c).



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                NECESSITY REJECTED ON APPEAL
In an unpublished memorandum opinion, the court affirmed

Staples’s murder and unlawful possession of a firearm by a
felon convictions. Staples v. State, No. 12-13-00126-CR (Tex.
App.--Tyler, September 17, 2014, pet. ref’d.)(memo. op., not

designated for publication)(“Opinion”). Though the court
found Staples had an immediate need to shoot back to avoid
harm after the deceased shot him in the face and hand, it held
necessity was not raised because Staples could not show “why
his own death would have been a greater harm” than the
deceased’s. Id. at p. 5-6.


              NECESSITY RAISED IN THE PETITION
Staples plates his position as follows: “It should have been up
to the jury to determine … whether the circumstances meet
the criteria of [Texas Penal Code §] 9.22.” Notwithstanding a
host of constitutional challenges, he basically contends the

court of appeals misconstrued the necessity justification
statute. The Court denied review over the Presiding Judge’s
lone dissent on March 25, 2015.




                                2
        INTERVENING CONFLICT ON NECESSITY ISSUE
Within days of the order denying review, two intermediate

courts reversed the trial court for failing to include a self-
defense instruction, yet each reached a conflicting conclusion
on the necessity defense. Neither opinion was published, but

the Court has noted the value of such cases to “demonstrate
the conflict among the intermediate courts.” Alford v. State,
358 S.W. 3d, 647, 657 n. 21 (Tex. Crim. App. 2012).
  The Amarillo Court of Appeals held the immediate need
for self-defense entitles a defendant to both self-defense and
necessity instructions. Evans v. State, No. 07-14-00145-CR

(Tex. App.--Amarillo, Mar. 23, 2015, no pet.)(memo. op., not
designated for publication). The Amarillo Court appears to
view an immediate need as the dispositive factor for both self-
defense and the necessity justification. See id. at *11.
  The very next week, the Fort Worth Court of Appeals
found “a complete absence of evidence of immediate

necessity or imminent harm” for the necessity defense, but
nonetheless reversed the trial court for failure to include a
self-defense instruction. Beckstrand v. State, No. 02-12-00480-




                                  3
CR at *15 (Tex. App.--Ft. Worth, Apr. 2, 2015, no
pet.)(memo. op., not designated for publication). To raise a

self-defense claim, the actor must reasonably believe that
force is “immediately necessary” to protect against the other’s
attempted use of unlawful force. Tex. Penal Code § 9.31.

  This conflict among intermediate courts intervened
between the Court’s order and this request for rehearing.
  Here, the Tyler Court of Appeals found an immediate
necessity to avoid imminent harm, meeting the first element
of the defense. Opinion at p. 4; Tex. Penal Code § 9.22(1).
Staples received a self-defense instruction at trial. Opinion at

p. 2. But the appellate court held the necessity defense was
not raised because Staples offered “no reason on appeal why
his own death would have been a greater harm” than the
deceased’s. Id. at p.5. As such, the court held, the evidence did
not satisfy the second element of the necessity defense, that
“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[.]” Id. at p. 5-6; Tex. Penal Code § 9.22(2).




                                 4
                        CONCLUSION
The Court should decide whether the immediate need to

protect one’s self from imminent harm raises the necessity
justification. In a ten-day span, two appellate courts reached
conflicting results on the necessity justification for self-

defense. Because this case involves the exact same issue and
the intervening conflict arose just days after the order denying
review, the Court is asked to grant the motion for rehearing.
                                    Respectfully submitted,


                                    /s/Harley Martin
                                    Harley Martin
                                    Texas Bar 24068879
                                    Post Office Box 2331
                                    Austin, Texas 78768
                                    Tel: (512) 679-2110
                                    Fax: (877) 640-6216
                                    harley.esq@gmail.com
                                    For Chester Alan Staples




                                5
               CERTIFICATE OF COMPLIANCE
Per Appellate Rule 9.4(i)(3), this motion contains 849 words.

                                   /s/Harley Martin
                                   Harley Martin


                  CERTIFICATE OF SERVICE
This motion was electronically served on the Anderson
County District Attorney, 500 North Church Street,
Palestine, Texas 75801 at phudson@co.anderson.tx.us, and
the State Prosecuting Attorney, P.O. Box 13046 Austin, Texas
78711-3046 at information@spa.texas.gov on April 24, 2015.


                                   /s/Harley Martin
                                   Harley Martin




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