1. “Did the appellate court error (sic) in holding that the necessity defense does not apply to a defendant who provokes the difficulty?”
2. “If the defense of necessity can be denied based on the defendant provoking the difficulty, did the appellate court error (sic) in finding that Appellant’s conduct provoked the difficulty in this case?
Navarro was arrested following an altercation with police at his family’s upholstery shop. According to Navarro, his mother and the shop were covered in transmission fluid when he arrived. Officer Turner arrived shortly thereafter, followed by Officer Braan. When Turner placed his hand on his taser and issued commands to Navarro, Navarro retreated into his office out of fear it was a gun and he would be shot. As both officers entered the office in pursuit, Navarro tried to set the transmission fluid on fire with a lit towel. Turner grabbed Navarro, and they slipped on the fluid and fell as they struggled. Navarro was then tased and tackled to the ground. Both officers had a hold of him as they struggled to restrain him. According to Navarro, he could not breathe and was getting beaten with a baton and so he bit Turner and did not let go until he was struck in the head multiple times. He was charged with assaulting a public servant. He received an instruction on self-defense but was denied an instruction on necessity. He was convicted.
The court of appeals affirmed. Recognizing a split in authority, it held that a defendant “cannot claim it was necessary for him to commit the charged offense if he was responsible for having placed himself in the position from which he attempted to extricate himself by committing the offense.” The court said this limitation applied because Navarro admitted the restraint he believed threatened him did not occur until after he disobeyed Turner’s commands, retreated into his office, and physically resisted arrest. The court of appeals also rejected Navarro’s claim that he was egregiously harmed by an error in the self-defense instruction. The court held the error caused no harm because “Navarro’s own account renders the defense of self-defense inapplicable because he admitted that his resistance preceded Turner’s alleged excessive force.” See Tex. Penal Code § 9.31(c)(1) (“The use of force to resist an arrest or search is justified: (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search . . .”).
Navarro seeks review of the necessity holding but not self-defense. His first argument for why “provoking” does not apply is legal: the Legislature did not apply a “provoking the difficulty” limitation to necessity the way it has to self-defense and the Court of Criminal Appeals (CCA) has not, either. His second argument is one of policy: “that one cannot defend himself from dying or serious bodily injury at the hands of an officer [if his conduct precipitated the encounter] is absurd.” If “provoking” applies, he argues alternatively, it should be a fact issue for the jury. He says the CCA’s cases distinguish between commencing the difficulty and provoking the attack with the intent to use it as a pretext for violence, and claims the former happened here.