# Spakes v. State > Court of Criminal Appeals of Texas · January 10, 1996 · 913 S.W.2d 597 URL: https://www.frixlaw.com/law-library/cases/9767528 ## Case - **Full name:** Harry Jack SPAKES, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** January 10, 1996 - **Citations:** 913 S.W.2d 597; 1996 Tex. Crim. App. LEXIS 3; 1996 WL 6762 - **Precedential status:** Published - **Opinion:** Opinion of the court - **Judges:** Keller, White, McCormick - **Cited by:** 26 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9767528 ## How later opinions describe it (automated extraction) - holding attempt to surrender is not a predicate to the necessity defense in a prosecution for the offense of escape so long as inmate's initial departure was immediately necessary to avoid imminent harm - rejecting application of factors developed in People v. Lovercamp, 43 Cal. App. 3d 823 , 118 Cal. Rptr. 110 (1975), for use of necessity defense to the offense of escape ## Opinion text OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW PER CURIAM. A jury convicted Appellant of escape and assessed his punishment at sixty years imprisonment after finding that he was a habitual offender. This conviction was reversed because the trial court failed to submit a requested instruction on the defense of necessity. Spakes v. State, 891 S.W.2d 7 (Tex.App.—Amarillo 1994). The State’s petition was granted to determine whether a predicate to the defense of necessity, as applicable to the offense of escape, includes an attempt to surrender once the immediate threat justifying the escape has ceased. The State notes that numerous other jurisdictions have imposed this requirement based on an analysis conducted in People v. Lovercamp, 43 Cal.App.3d 823 , 118 Cal.Rptr. 110 (1975). Texas adopted the current penal code in 1973, incorporating within it several common law defenses, including necessity and duress. V.T.C.A. Penal Code, § 9.22 (Necessity) provides that conduct is justified if: *598 (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent ham; (2) the desirability and urgency of avoiding the ham clearly outweigh, according to ordinary standards of reasonableness, the ham sought to be prevented by the law prescribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. V.T.C.A. Penal Code, § 9.02, dictates: “It is a defense to prosecution that the conduct in question is justified under this chapter,” and § 2.03 states: (a) A defense to prosecution for an offense in this code is so labeled by the phrase: “It is a defense to prosecution.... ” * * ⅜ * * * (c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense. (d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted. (e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evi-dentiary consequences of a defense. V.T.C.A. Penal Code, § 38.07, at the time this offense was committed provided: (a) A person commits an offense if he escapes from custody when he is: (1) under arrest for, charged with, or convicted of an offense; or (2) in custody pursuant to a lawful order of a court. As can be seen, “a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.” Although the State presents several cogent arguments as to why an attempt to surrender should be a prerequisite to applying a necessity defense to the offense of escape, * these arguments are appropriate for the legislature, not for the judiciary. The plain language codifying the necessity defense evinces a legislative intent that the defense apply to all offenses unless the legislature has specifically excluded it from them. As the Court of Appeals held, “Although the test formulated in Lovercamp seems reasonable, it would be an impermissible addendum to section 9.22 requirements, in view of the language of that statute, for us to hold that the availability of the necessity defense is expressly conditioned upon the five elements set forth in Lovercamp.” We therefore conclude that a person accused of escape need not present evidence of an attempted surrender before a necessity instruction is required, if some evidence otherwise complying with § 9.22 has been presented. The judgment of the Court of Appeals is affirmed. WHITE, J., concurs. The State Prosecuting Attorney argues that escape is a continuing offense. Therefore, if at any time while a defendant is in the status of an escapee the threat of imminent harm that made it immediately necessary for him to abscond should dissipate, the defense of necessity should not be available to him unless he immediately turns himself in. However, we have already rejected the State’s premise. In Lawhorn v. State, 898 S.W.2d 886, at 890 (Tex.Cr.App.1995), we held that the offense of escape as defined in V.T.C.A. Penal Code, § 38.07, is not a continuing offense. As the statutes now plainly read, so long as a defendant presents evidence that his initial departure from custody was occasioned by the immediate necessity to avoid imminent harm, he is entitled to an instruction on the defense of necessity. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9767528. Public record. Not legal advice.