IN THE
TENTH COURT OF APPEALS
No. 10-12-00271-CR
RICHARD BLAKE RAY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2011-2087-C2
OPINION
Richard Blake Ray was charged and tried for attempted capital murder. TEX.
PENAL CODE ANN. § 19.03(a)(7)(A) (West Supp. 2012). He asserts on appeal that he was
deprived of his main theory of defense by the trial court’s refusal to include an
instruction in the charge on the defense of necessity. We affirm.
Ray confronted Andrew Hobbs and Bobby Stephens, his former employer and a
coworker, respectively, on their job site about difficulties he was having at home as a
result of having lost his job. The nature of the business owned by Hobbs required them
to go to the customer’s premises and the encounter with Ray occurred on a customer’s
property. It is undisputed that Ray armed himself with a pistol and entered the job site
with the pistol already in his hand and holding it down by his side. The evidence
presented by the State and Ray then diverges on who said what to whom and the level
of aggression displayed by either Hobbs or Stephens on the one hand and Ray on the
other. What is not in dispute is that during the argument caused when Ray confronted
them at their job-site, where Ray had no authority to be, Ray shot both Hobbs and
Stephens.
Ray’s version of the event is that Hobbs and Stephens approached him in a
fashion that caused him to become concerned that they were going to take the pistol
from him and possibly use it to cause harm to him. Thus, he argues that based on his
testimony he was entitled to an instruction on necessity. TEX. PENAL CODE ANN. § 9.22
(West 2011).
Necessity is a defense where conduct 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.
Id.
Ray v. State Page 2
The State argues that Ray is not entitled to a necessity instruction because Ray
“provoked the difficulty.” The State relies on Leach v. State where the Fourteenth Court
of Appeals held as follows: “