By Britt Houston Lindsey
Chief Appellate Prosecutor in Taylor County
Remember Erie Railroad Co. v. Tompkins[1] from law school? In Erie, the U.S. Supreme Court declared that federal courts hearing diversity cases must apply state law, overturning the 96-year-old case of Swift v. Tyson.[2] An interesting bit of law nerd trivia you may not remember about Erie is that neither of the parties actually asked the Court to do so.
Swift had been a grand experiment in attempting to create federal common law that would be uniform across the states as judges discovered natural law principles that would give rise to a “general commercial law,” but the opposite happened. Instead of uniformity, precedents were all over the place, allowing judges to invent law without legislative approval and leading to forum shopping. The majority opinion of Justice Louis Brandeis saw an opportunity to overturn a poorly reasoned and unworkable precedent, and sua sponte overturned Swift. The dissenting opinion of Justice Pierce Butler pointed out that neither party had raised the question of the validity of Swift and argued that the Court should not do so of its own volition.
The Court did something similar in Mapp v. Ohio.[3] In Mapp, the Court ruled that the exclusionary rule was incorporated into the 14th Amendment and applied to the states, overruling Wolf v. Colorado.[4] But again, neither party asked that the Court do that. Justice Harlan’s dissent in Mapp pointed out that not only had the appellant not requested in briefing that Wolf be overruled, but also the appellant had expressly disavowed that he was requesting such when pressed in oral argument. Only the amicus curiae brief of the ACLU (American Civil Liberties Union) had requested that the Court overrule Wolf, and in Justice Harlan’s view it was inappropriate for the Court to do so without full briefing and argument from the parties.
In this installment of As the Judges Saw It, we examine Navarro v. State,[5] a recent Court of Criminal Appeals case involving the applicability of the necessity and self-defense statutes in resisting arrest cases. As in Erie, the Court in Navarro saw and took the opportunity to overrule a problematic precedent sua sponte, and as in Mapp, only the amicus curiae requested it.
Background
Jerimiah Navarro was indicted on two counts of aggravated assault with a deadly weapon against a public servant using a trophy and a screwdriver, plus a third count of assault of a public servant by biting, and he was indicted separately for attempted arson of the building where the altercation took place. On April 25, 2014, New Braunfels police officers Brian Turner and Lucien Braan were dispatched to an upholstery business after 911 received three hang-up calls from that location. When Officer Turner arrived, several car radios were playing at full volume and a woman later identified as Navarro’s mother approached them outside with her hair, neck, chest, and arms covered in transmission fluid. Navarro appeared outside shouting that his mother was “the black widow” and a “drug dealer” who should be arrested. Officer Turner tried to speak to Navarro, who retreated into the business. Officer Braan arrived at that time and his car video recorded the altercation.
Officer Turner followed Navarro inside and found the business in disarray, with transmission fluid “all over” the office and floor. Navarro was seated in the back of the office and refused Officer Turner’s requests to come outside and talk. Navarro tried to light a towel on fire, then rubbed it into the transmission fluid on the floor and set it on fire. Officers could be heard on the video saying, “Put it up,” and “Put it down,” repeatedly and telling Navarro eight times to “put the lighter down.” Navarro can be heard saying, “You’re going to die—everybody in this god**** building,” and “You’re going to die, mother******. … We’re all going to die.” Officers could later be heard telling Navarro to “put the screwdriver down” and “put your hands behind your back,” to which Navarro responded, “No.” Repeated efforts to tase him were unsuccessful. Navarro struck Officer Turner in the head with a trophy, attempted to stab both officers with a screwdriver, and bit a large chunk of flesh out of Officer Turner’s arm. After Navarro was cuffed and restrained, he was taken to the hospital for a broken nose, fractured wrist, and bruising.
At trial, Navarro admitted that he was resisting arrest but testified that he bit Officer Turner only because the officer was on top of him, cutting off his breathing, and he was desperate to get him off. He testified that biting Turner was “the only thing” he could do under the circumstances and a “desperate move.” He was asked on cross-examination if he thought the officers were “trying to cut off [his] breathing,” and he replied, “I don’t believe that was their intention, no.” At the charge conference, Navarro requested an instruction on the defense of necessity as to the assault on a public servant for biting Officer Turner, which was denied, although he did receive an instruction on self-defense. Navarro was convicted of count one for the aggravated assault with the screwdriver against Officer Turner, convicted of count three for the biting, and acquitted of the other aggravated assault against Officer Braan in count two and the attempted arson charge.
On appeal
Navarro appealed to the Third Court of Appeals, and the case was transferred to the First Court of Appeals pursuant to the Texas Supreme Court’s docket equalization order.[6] On appeal, Navarro argued that the trial court erred in not including an instruction on the defense of necessity, which provides that conduct that would otherwise be criminal 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.[7]
As to the third consideration, the Court of Criminal Appeals had previously held in Bowen v. State[8] that the resisting arrest statute[9] does not limit the necessity defense’s application, because a legislative purpose to exclude the defense does not plainly appear in its text of the offense.
Navarro argued that he was entitled to the necessity instruction because he thought he had no other choice but to bite Officer Turner, because Turner was on top of him and rendering him unable to breathe. Citing its own caselaw,[10] the First Court held that “even if the defendant admits he committed the charged offense, he is not entitled to an instruction on the defense of necessity if it is undisputed that he provoked the difficulty that made it necessary for him to commit the offense. … In other words, the 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.”[11]
The First Court noted that there was a split among the courts of appeal on this issue: The First, Second, Thirteenth, and Fourteenth Courts had held in published opinions that a necessity defense is not available when the defendant is responsible for the predicament, the Fourth and Eleventh Courts had so held in unpublished opinions, the Fourth and Eighth Courts had applied the rule in certain circumstances, and the Fifth and Tenth Courts had held that provoking the difficulty does not negate a necessity defense.[12] The First Court was bound by the precedent of the Third Court in its decision, but because the Third Court had not ruled on the issue, it applied its own.[13]
The First Court held that under these facts, the necessity defense was not available. Navarro disobeyed Turner from the outset, his disobedience escalated into violence after Turner tried to remove Navarro from the office, and by his own account Navarro admitted that he precipitated the altercation. Because it was his own prior action that made the criminal conduct necessary, Navarro was not entitled to a necessity instruction. Navarro petitioned the Court of Criminal Appeals and was granted review.
As the judges saw it
In the Court of Criminal Appeals, Holly Weatherford of the Comal County Criminal District Attorney’s Office argued that the First Court had correctly concluded that Navarro was not entitled to a necessity defense when he himself provoked the difficulty. John Messinger, writing for the State Prosecuting Attorney (SPA) as amicus curiae, echoed that argument but also argued that Bowen v. State, which held that the necessity defense is not legislatively excluded from the resisting arrest statute, was flawed from its inception and should be overruled.
The Court of Criminal Appeals affirmed, but on grounds different from the provoking the difficulty doctrine cited by the First Court: It overruled Bowen. Writing for the Court, Judge Parker held that “if a defendant would not be justified in using force to resist arrest under the self-defense statute to protect himself from the officer’s use of force, he would also not be justified in using such force under the necessity statute.” The self-defense statute (Penal Code §9.31) has a clear exclusion for cases of resisting arrest:
(b) The use of force against another is not justified: …
(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer’s presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);
(c) 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; and
(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.[14]
The court of appeals in Bowen had held that Bowen was not entitled to a necessity instruction because her use of force against an officer attempting to arrest her was covered by these sections of the self-defense statute, which expressly stated that she could not use force to resist arrest, even an unlawful arrest using excessive force, if the defendant offered resistance first. This, the Bowen court of appeals concluded, was a plain expression of “a legislative purpose to exclude the justification claimed for the conduct” under §9.22(3). The Court of Criminal Appeals in Bowen held that the lower court erred in looking to another defensive justification, and that the “legislative purpose to exclude” mentioned in §9.22(3) must “plainly appear” on the face of the Penal Code offense itself.[15]
So back to Navarro. The SPA argued, and Judge Parker agreed, that if the resisting arrest exclusion to the self-defense statute constitutes a plainly appearing legislative purpose to exclude the justification claimed for the conduct that it covers, then the appellant would fail as a matter of law to meet element three of the necessity defense. Where Bowen went wrong was looking at the necessity defense statute in isolation and specifically precluding consideration of the self-defense statute, or any other defensive statute, in determining legislative exclusion. Application of the necessity defense to the exact same conduct excluded as self-defense to resisting arrest renders that exclusion useless. Because Navarro was not entitled to the self-defense instruction he received, he could not avail himself of a necessity instruction that would legally justify conduct that was, by law, not a justification.
Concurrence
Judge Yeary concurred, joined by Presiding Judge Schneck, saying that he joined the majority in all but the Court’s discussion of stare decisis, particularly the consideration of the need for consistency in determining whether precedent should be overruled. Citing In re Green,[16] the majority opinion discusses how the need for maintaining consistency with past decisions should be weighed against other factors, such as whether the original decision was flawed from the outset, it leads to inconsistent results, the rule conflicts with other precedent, and so on. To Judge Yeary’s thinking, this should not be part of the analysis: “When this Court badly misconstrues statutory language, I do not think any interest in ‘maintaining consistency’ compels us to confer authoritative value on that judicial mistake.” Although he agreed Bowen misconstrued §9.22, he disagreed that “we are constrained from overruling erroneous precedent unless we first consider all the various factors the Court enumerates. … For me, it is enough simply to recognize that our prior construction of the statute was demonstrably erroneous.”
Dissent
Judge Walker dissented, joined by Judge Newell and Judge McClure. Judge Walker noted that the Court granted review to determine whether Navarro was entitled to a necessity instruction even though he may have “provoked the difficulty,” but rather than answer that question the Court went out of its way to overrule Bowen, which the lower court did not rely on and the parties did not raise. In so doing, the Court relied on an issue raised only by the SPA writing as amicus, which Judge Walker noted the Texas Supreme Court and federal courts do not allow.[17] Judge Walker believes that the Court’s sua sponte decision of the issue deprives the parties of the opportunity to fully brief the matter, and that if the Court wished that issue addressed, it should grant the issue on its own motion and request briefing from the parties.[18]
Judge Parker’s majority opinion responds to this argument by pointing out that the First Court of Appeals, being bound by the precedent of the Court of Criminal Appeals, could not have addressed the continuing viability of Bowen, and that “the SPA is no ordinary amicus; it actually has primary authority to represent the State in this Court. … An appellant who ignores an amicus brief from the SPA does so at his peril.”
The takeaway
The main takeaway of Navarro should be obvious: In a resisting arrest case, if the defendant isn’t entitled to a self-defense instruction, he isn’t entitled to a necessity instruction either. On the appellate level, the concurrence of Judge Yeary and Presiding Judge Schenck is noteworthy in that it may signal that the Court is more open to re-examining statutory interpretation that time has shown to be flawed. Judge Yeary eschews the factors the Court has weighed in the past in determining whether stare decisis should apply for a more direct approach of “if it’s wrong, get rid of it.” It will be of interest to both sides of the criminal bar to watch and see if and how this plays out as a trend.
Beyond that, the application of Navarro gets a little murky. In a pre-Bowen case, Dudas v. State, the Seventh Court of Appeals joined a majority[19] of the lower courts in finding that necessity is unavailable as a defense when the defendant also claims and receives an instruction on deadly force in self-defense. The very short discussion did not mention Bowen, but the courts which had discussed Bowen had distinguished it because it did not deal with deadly force under §9.32. Those cases found that by requiring a greater showing for the use of deadly force in self-defense, a legislative purpose to exclude the justification for this conduct plainly appears on the face of the statute. If it were otherwise, allowing a necessity defense in every case where a defendant used deadly force would render the greater showing required under §9.32 pointless and useless. Dudas petitioned the Court of Criminal Appeals arguing that these cases misapplied Bowen and was granted review. The SPA’s response argued that even if the Court disagreed with the lower court’s rationale regarding legislative purpose, other considerations of statutory construction regarding the necessity defense should preclude its application when deadly force is used.
After Dudas and the SPA briefed and argued to the Court of Criminal Appeals, Navarro was handed down and Bowen was overruled. Both parties filed post-submission briefs: Dudas argues that Navarro does not apply because Dudas was charged with murder, not resisting arrest, and there is accordingly no explicit exclusion in the statute. The SPA points out that Navarro expressly did not limit the analysis to resisting arrest, noting that the self-defense statute also contains other exclusions, such as verbal provocation alone or consent. Navarro also noted that deadly force is excluded in §9.44(1) regarding the use of a deadly device (a “mantrap”) to protect property. The SPA argues that this same exclusion by negative implication applies to the use of deadly force in the self-defense statute: When a statute says that deadly force is justified only when certain conditions are fulfilled, the implication is that there can be no justification when those circumstances are absent.
Dudas is still pending in the Court of Criminal Appeals as of this writing, and even once it’s decided, we probably haven’t heard the last of when the necessity defense does and doesn’t apply. Until we get more guidance from the Court, the wise move is to exercise caution and don’t try to stretch Navarro into creative applications.
[1] 304 U.S. 64 (1938).
[2] 41 U.S. 1 (1842).
[3] 367 U.S. 643 (1961).
[4] 338 U.S. 25 (1949).
[5] No. PD-0222-22, __S.W.3d__, 2025 WL 3144210, 2025 Tex. Crim. App. LEXIS 811 (Tex. Crim. App. Nov. 6, 2025).
[6] See Tex. Gov’t Code §73.001; Order Regarding Transfer of Cases from Courts of Appeals, Misc. Docket No. 20-9048 (Tex. Mar. 31, 2020).
[7] Tex. Penal Code §9.22.
[8] 162 S.W.3d 226, 229 (Tex. Crim. App. 2005).
[9] Tex. Penal Code §38.03.
[10] McFarland v. State, 784 S.W.2d 52, 54 (Tex. App.—Houston [1st Dist.] 1990, no pet.).
[11] Navarro v. State, 649 S.W.3d 603, 613 n.1 (Tex. App.—Houston [1st Dist.] 2022), aff’d on other grounds, __S.W.3d__, 2025 WL 3144210, 2025 Tex. Crim. App. LEXIS 811 (Tex. Crim. App. 2025).
[12] Id.
[13] Id.
[14] Tex. Penal Code §9.31(b)(2), (c) (emphasis added in Navarro).
[15] The amicus brief of the SPA further points out that no Penal Code statute actually contains an explicit limitation on the doctrine of necessity.
[16] 713 S.W.3d 843, 853-54 (Tex. Crim. App. 2025).
[17] In response, Judge Parker’s majority opinion cites occasions in which the U.S. Supreme Court decided an issue not raised by the parties and/or raised only in an amicus brief, including Davis v. United States, 512 U.S. 452, 457 n* (1994) and Teague v. Lane, 489 U.S. 288, 300 (1989) (plurality op.), but sadly, not Erie or Mapp.
[18] Citing Tex. Code Crim. Proc. Art. 44.45(a) (“The Court of Criminal Appeals may review decisions of the court of appeals on its own motion”).
[19] See Miller v. State, 712 S.W.3d 235, 255-56 (Tex. App.—Eastland 2025, pet. filed) (collecting cases); Sneed v. State, No. 11-15-00320-CR, 2017 Tex. App. LEXIS 3912, 2017 WL 2588164, at *3 (Tex. App.—Eastland 2017, pet. ref’d) (mem. op.); see also, e.g., Rollins v. State, 709 S.W.3d 770, 2025 Tex. App. LEXIS 1659, 2025 WL 793890, at *6-7 (Tex. App.—Austin Mar. 13, 2025, pet. ref’d) (collecting cases); Chase v. State, 666 S.W.3d 832, 835 n.2 (Tex. App.—Tyler 2023), cert. denied, 144 S.Ct. 580, 217 L.Ed.2d 309 (2024); Darkins v. State, 430 S.W.3d 559, 571-72 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d); Striblin v. State, No. 04-17-00826-CR, 2019 Tex. App. LEXIS 1692, 2019 WL 1049233, at *4 (Tex. App.—San Antonio Mar. 6, 2019, pet. ref’d) (mem. op.); Kelley v. State, 05-15-00545-CR, 2016 Tex. App. LEXIS 3764, 2016 WL 1446147, at *7 (Tex. App.—Dallas Apr. 12, 2016, pet. ref’d) (mem. op.); Wilson v. State, No. 06-14-00021-CR, 2014 Tex. App. LEXIS 12188, 2014 WL 8332264, at *6 (Tex. App.—Texarkana Nov. 7, 2014, pet. ref’d) (mem op.); Rodriguez v. State, No. 02-17-00371-CR, 2022 Tex. App. LEXIS 5080, 2022 WL 2840153, at *1 n.1 (Tex. App.—Fort Worth July 21, 2022, pet. ref’d) (mem. op.); Toliver v. State, No. 01-23-00802-CR, 2025 Tex. App. LEXIS 8371, at *23 and n.5 (Tex. App.—Houston [1st Dist.] Oct. 30, 2025, pet. filed) (mem. op.).