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Click here for the full text of this decision FACTS:An ongoing feud between Michael Wesley Searcy and Kenneth Foster culminated in a confrontation on Oct. 11, 2005. By way of background, the court noted that in the town where the murder occurred, there was a tree between a local convenience store and a trailer park under which friends and neighbors gather and play dominoes. Earlier in the day, Foster had been playing dominoes with friends under that tree. Searcy, who lived in a trailer up the road, had come down to the area to talk with one of the residents about doing some bush-hogging work for Searcy. Then Searcy returned to his house and continued to do yard work. Hot and thirsty from the work, he returned to the convenience store and social hub, the Pic-N-Pay, to buy some beer. This time he brought a gun. Although Searcy claims to have been trying to keep a low profile and avoid Foster, Searcy found himself in the trailer park and in a verbal confrontation with Foster during this second trip to the store and gathering-spot. Witnesses testified that Searcy drew at least one line in the dirt and, as the apparently weaponless Foster approached that line, Searcy pulled a gun and began to fire at Foster. Foster ran. Searcy chased after him and caught up to Foster, firing one last shot to the back of Foster’s head. Searcy lingered only long enough to empty the spent casings and say something to the effect that now he had a reason to go to jail. Searcy then stated, “F all y’all” and fled the scene. Foster sustained three gunshot wounds, all consistent with eyewitness accounts that he was running away from Searcy. Although Searcy admitted shooting Foster, he would later testify at trial that Foster had struck him with one hand and wielded a knife in the other; none of the several eyewitnesses so testified, and no one recovered a knife from the scene. The trial court refused to include the defense of necessity in the jury charge but did charge the jury on self-defense using deadly force. On appeal, Searcy complained that the trial court erred by not including a charge on necessity in addition to self-defense: “Appellant further urges that the [trial] court’s instruction to the jury on self-defense does not preclude a charge on the law of necessity.” HOLDING:Affirmed. The trial court refused to include the defense of necessity in the jury charge but did charge the jury on self-defense using deadly force. On appeal, Searcy complained that the trial court erred by not including a charge on necessity in addition to self-defense. The court found that when self defense is submitted in the jury charge, the defense of necessity cannot also be submitted. Use of the necessity defense together with self-defense, the court stated, would thwart the legislative purpose to impose a higher standard and would circumvent the “retreat” requirement of Texas Penal Code �9.32 where a defendant seeks to justify the use of deadly force. In Searcy’s case, the court stated, the trial court instructed the jury on self-defense using deadly force, which included a duty to retreat. Searcy wanted both self-defense and necessity. The court concluded that the inclusion of the justification of necessity, which clearly implicates the application of self-defense using deadly force, would undermine the Legislature’s purpose in imposing the duty to retreat. Next, Searcy objected to the admission of a recording based on violations of Texas Code of Criminal Procedure Art. 38.22. He argued that the first portion of the recording contained oral statements in response to custodial interrogation and did not comply with the warning requirement of Art. 38.22. The trial court agreed as to the prewarning portion of the videotape, but found the warnings administered by Deputy Jerry Bruce after Searcy was taken to the patrol car to be the fully effective equivalent of the warning required by Art. 38.22 for the admission of a recorded oral statement given in response to custodial interrogation. The court found that Searcy’s recorded statements were likely admissible as impeachment. The court also upheld the trial court’s denial of a mistrial after the prosecutor made an ambiguous comment regarding Searcy’s failure to testify. Considering the trial court’s prompt instruction, the state’s compliance with the ruling and the state of the evidence supporting the 60-year sentence, the court concluded that the trial court did not abuse its discretion by denying Searcy’s motion for mistrial and overrule his final point of error. OPINION:Carter, J.; Morriss, C.J., and Carter and Moseley, JJ.

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