## Facts

- James Allen Johnson was convicted of unlawfully carrying a handgun on premises licensed to sell alcoholic beverages under Tex. Penal Code § 46.02(c) (as then in effect) and sentenced to two years’ imprisonment.
- Johnson had previously fought with Wilbur Williams over a dice game and later heard threats that Williams was seeking him and was armed with a shotgun and pistol.
- About two weeks later, Johnson went to a bar and was initially unarmed; a friend who carried a handgun was with him.
- Williams and others confronted Johnson at the bar; during a fight in which Johnson was beaten, the friend handed Johnson the handgun.
- Johnson possessed the handgun on the licensed premises and used it to shoot and kill Williams; the prosecution at issue was for the weapons offense, not homicide.
- Johnson requested jury instructions on necessity under Tex. Penal Code § 9.22 and related justification/self-defense theories; the trial court refused.

## Issues

1. Whether the justification defense of necessity under Tex. Penal Code § 9.22 is categorically unavailable in a prosecution for unlawfully carrying a handgun on licensed premises under Tex. Penal Code § 46.02(c).
2. Whether, when evidence raises necessity (and related justification theories), the trial court must instruct the jury on those defenses in a § 46.02 prosecution.

## Decision

- The court of appeals reversed the conviction.
- It held that necessity (and related justification theories) was not barred as a matter of law in a prosecution under § 46.02(c).
- It further held that the evidence raised defensive issues requiring submission to the jury, and the trial court’s refusal to charge the jury on those defenses was reversible error.
- The Texas Court of Criminal Appeals later affirmed the judgment, agreeing that § 46.02 does not plainly show a legislative purpose to exclude necessity under § 9.22.

## Legal Principles

- Necessity under Tex. Penal Code § 9.22 applies to Penal Code offenses unless a legislative purpose to exclude the justification “plainly appears” under § 9.22(3).
- A general statutory purpose to deter weapon-carrying does not, without explicit exclusion, make necessity unavailable for violations of Tex. Penal Code § 46.02, including offenses on licensed premises under § 46.02(c).
- Prior language suggesting a categorical exclusion of necessity in § 46.02 prosecutions was treated as nonbinding dicta where it was not necessary to the earlier holding.
- A defendant is entitled to a jury instruction on a justification defense when evidence raises it; the jury, not the court, decides whether the justification’s elements are met.

## Conclusion

The court held that necessity and related justifications may be available in prosecutions for unlawfully carrying a handgun on licensed premises, and that refusing a defensive jury instruction when the evidence raises the defense requires reversal.


Johnson v. State, 638 S.W.2d 636 (Tex. App.—El Paso 1982)