Trespassing Case Dismissed With Use Of Necessity Defense

I recently won a dismissal in a trespassing case using the necessity defense.  The state might not have admitted it on the dismissal form, but these things happen.  My client was charged with trespassing for being on a property where she was not supposed to be.  In fact, she had previously been arrested on this property before for various crimes, and there had been a no trespassing notice order issued against her.

My client was caught trespassing red handed.  She was walking down the street and entered a property from which she was banned.  The property manager called the police and the police whom she had come to know arrested her.  The wrinkle is that it had started raining outside, and this occurred the week in May where Houston had record floods.  The rain and flooding gave me the idea that there might be a necessity defense available in this trespassing case.  Think about, we had experienced historic floods.  Even just the slightest bit of rain caused the over-saturated ground and sewage system to flood.  If there was ever a time to seek shelter, it was during the rains on this particular week.

Houston Flooding May 2015
Houston Flooding May 2015

So we show up to court and the first offer was “time served.”  This was really a reasonable offer, considering my client’s criminal history.  The prosecutor’s refusal to consider the flash flood condition as a defense, however, well that doesn’t matter so much anymore because the case was dismissed. Many defendants think getting time served is a great deal, and it might be for some, but it is still a guilty plea that will negatively effect your life.  Most lawyers would have told my client to accept the plea deal and get this ordeal over with.  In fact, the last five criminal lawyers she had told her to do that, and she followed their advice.  This poor lady had never gotten a case dismissed.

I, on the other hand, advised my client just to wait it out and not accept the plea deal.

What is a defense to a crime?

A defense is a legal justification for criminal conduct.  In other words, your conduct is excused if there is a valid defense. Defense are built into statutes, case law, and the law in general. The Texas Code of Criminal Procedure section 2.03 says that if there is a defense to a law, the law will say, “It is a defense to prosecution…” At the end of every case that goes to trial, the judge will read the jury instructions to the jury.  The jury instructions explain the law that applies to the case and that the jury must follow.  In order to get a jury instruction on a defense, the defendant must present just some evidence that supports the particular defense.  A defense is different than an affirmative defense.  Some common defenses include self-defense, duress, entrapment, insanity, involuntary intoxication, mistake of fact, and mistake of law.

What is the necessity defense?

The necessity defense isn’t really a defense at all. The necessity defense is a justification.  The jury may acquit a defendant if it finds that a person’s conduct was justified under the circumstances.  According to the Texas Code of Criminal Procedure § 9.22, Necessity, 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. A legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

In layman’s terms: did you do something illegal, did you have to do it to avoid obvious and fast approaching harm, was your conduct reasonable in light of the circumstances, and did the benefit of your conduct outweigh the harm?

When can the necessity defense be used?

The necessity defense can be used in any number of scenarios where the answer to all the following questions might be “yes.”  The necessity defense has been used in possession of marijuana cases in states where medical marijuana is not legalized, such as in Texas and Florida, and civil disobedience cases.

Can I use the necessity defense?

It all depends on the facts of your case.  If you think you may have committed a crime, but it was necessary to avoid some greater evil or harm, talk to your criminal defense lawyer to see if the necessity defense can fit into your case.

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