## Facts

- Harry Jack Spakes was in jail custody when he was placed in a cell with three inmates charged with capital murder.
- Spakes testified the cellmates planned an escape and told him he had to go with them; if he refused, they threatened to cut his throat.
- Spakes stated he believed the threat and feared imminent death if he did not participate.
- Spakes also testified he distrusted jail officials and feared retaliation connected to a prior grievance against a correctional officer.
- The inmates escaped, and Spakes left custody with them.
- About twelve hours later, Spakes went to a church seeking help and water, where off-duty police officers recognized and arrested him.
- Spakes was tried for escape from custody under former Texas Penal Code § 38.07.
- He requested a jury instruction on the statutory defense of necessity under Texas Penal Code § 9.22; the trial court refused and did not submit necessity to the jury.
- A jury convicted Spakes and, after habitual-offender findings, assessed a 60-year sentence.

## Issues

1. Whether Texas Penal Code § 9.22 (necessity) is legally available as a defense to a prosecution for escape from custody under former Texas Penal Code § 38.07.
2. Whether Spakes presented “some evidence” on each element of necessity such that the trial court was required to instruct the jury on that defense.

## Decision

- The court of appeals reversed the conviction and remanded for a new trial.
- The court held necessity is not categorically excluded for the offense of escape absent a plainly expressed legislative purpose to bar it.
- The court held Spakes’s testimony about coercive threats of immediate deadly harm raised the necessity defense sufficiently to require a jury instruction.
- The trial court’s refusal to submit the requested necessity instruction was reversible error.

## Legal Principles

- Under Texas Penal Code § 9.22, conduct is justified if: (1) the actor reasonably believes it is immediately necessary to avoid imminent harm; (2) the urgency of avoiding that harm clearly outweighs, under ordinary standards of reasonableness, the harm the law seeks to prevent; and (3) no plainly appearing legislative purpose excludes the justification.
- A justification under Penal Code Chapter 9 is a defense to prosecution. When there is some evidence supporting a defense, the court must submit it to the jury, and the charge must instruct that reasonable doubt on the defense requires acquittal.
- A trial court may not refuse a requested defensive instruction when the record contains some evidence from any source that would permit a rational jury to find the defense applies.

## Conclusion

The court of appeals ruled that statutory necessity can apply to an escape charge and that Spakes’s evidence of imminent, deadly threats was enough to require a necessity instruction, making the trial court’s refusal reversible error and requiring a new trial.


Spakes v. State, 891 S.W.2d 7 (Tex. App.—Amarillo 1994)