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Click here for the full text of this decision FACTS:Chris Hubbard awoke in his prison cell to find that his cellmate, Ronder Townsel, had pulled down Hubbard’s boxer shorts, climbed on Hubbard’s back, pressed his forearm to the back of Hubbard’s neck to hold him down, and allegedly begun trying to rape him. During the ensuing struggle, Townsel was injured worse than Hubbard. In fact, Townsel’s resulting broken ribs and sternum caused infection and ultimately death. Charged with the capital murder of Townsel, Hubbard was denied a requested jury instruction on the issue of necessity, was convicted of the lesser-included offense of manslaughter, had his punishment enhanced, and was sentenced to life imprisonment and a $10,000 fine. HOLDING:Reversed and remanded. The court agrees with the general rule that a defendant must admit the conduct charged in the indictment and then offer evidence justifying the conduct. “Admitting the conduct, however, does not necessarily mean admitting the commission of every statutory element of the offense.” Jackson v. State, 110 S.W.3d 626 (Tex. App. � Houston [14th Dist.] 2003, pet. ref’d). That is, even if a defendant denies the specific allegations in the indictment, he or she is not necessarily precluded from raising defensive issues as long as he or she sufficiently admits conduct underlying the offense and provides evidence justifying a defensive instruction. The record evidence already cited clearly establishes that, although Hubbard did not admit intentionally, knowingly or recklessly causing Townsel’s death, he did admit the conduct underlying the offense, that is, striking Townsel. The court holds this admission sufficient to satisfy the admission element required to raise the issue of necessity. Seizing on Hubbard’s testimony describing what happened directly after he head-butted Townsel to get him off of his bunk, the state maintains Hubbard had time for reflection before beating Townsel with such force he caused several fractures to Townsel’s ribs � reportedly the cause of the infection that ultimately killed Townsel. Hubbard said: “[Townsel] had got up, he was standing, just standing there with no clothes on. I got up and just went at him.” Contrary to the state’s position that this indicated Hubbard had become the aggressor, however, our review of the record suggests that these events took place within a very short time and that Townsel was not easily dismissed. It is instructive that Townsel attacked Hubbard again even after Hubbard testified he had bloodied Townsel’s nose, and possibly even after the ultimately lethal chest punches by Hubbard � after Hubbard started to walk away from the fight. Under the circumstances, and considering that a defendant’s testimony alone is sufficient to raise a defensive issue requiring an instruction in the jury charge, Pennington v. State, 54 S.W.3d 852 (Tex. App. � Fort Worth 2001, pet. ref’d), the court cannot say Hubbard’s belief that action was immediately necessary to avoid imminent harm was unreasonable. He was locked in a cell, alone with his attacker, and had no place of safety into which he could retreat. Following the formulation of the Texas Penal Code �9.22 requirements, the court concludes Hubbard presented evidence 1. that he reasonably believed repeatedly hitting Townsel was immediately necessary to avoid being raped; 2. that the desirability and urgency of avoiding being raped clearly outweighed, according to ordinary standards of reasonableness, the harm sought to be remedied by the laws proscribing assault; and 3. that there appears to be no legislative purpose to exclude the justification in this circumstance. Thus, the jury should have been instructed on necessity. OPINION:Morriss, C.J.; Morriss, C.J., Ross and Carter, JJ.

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