DUDAS v. STATE (2026)

OPINION

On May 8, 2024, a jury convicted Appellant, John Richard Dudas, of murder. The jury assessed punishment at fifteen years’ imprisonment and the trial court sentenced Appellant accordingly. The Seventh Court of Appeals affirmed. Dudas v. State, No. 07-24-00173-CR, 2025 WL 806731 at *1, 2025 Tex. App. LEXIS 1713 at *1 (Tex. App.—Amarillo Mar. 13, 2025, pet. granted) (mem. op., not designated for publication). On April 14, 2025, Appellant filed a petition for discretionary review in this Court, claiming that the court of appeals erred in finding Appellant was not entitled to a jury instruction on necessity. The question presented is whether a jury instruction on self-defense using deadly force precludes one on necessity. We find that it does, as the Legislature's intent to preclude the necessity defense does plainly appear in cases involving the use of deadly force in self-defense. The trial court therefore did not abuse its discretion by denying Appellant's requested necessity instruction.

I. BACKGROUND AND PROCEDURAL HISTORY

On October 9, 2020, around 9 p.m., Appellant was leaving a social gathering when he heard barking coming from the dogs across the street. The dogs were behind the fence of a side-yard connected to Bill's Auto Glass. Appellant was friends with the owners of Bill's Auto Glass and was familiar with the dogs. He noticed a man, later identified as Peter Fischer, rattling the fence and allegedly “harassing” the dogs. To get Fischer's attention, Appellant got into his car and turned on his high beams, aiming the lights toward the shop. Appellant drove across the street and pulled into the Bill's Auto Glass parking lot.

Appellant's explanation as to what occurred after he pulled into the lot changed over the course of his interviews with law enforcement, and during his trial testimony. However, Appellant's story as to what happened when he left the parking lot after the altercation remained largely consistent.

Immediately after stabbing Fischer with a pocketknife, Appellant got into his car and drove home. On the way, Appellant threw the knife out of his car window. When he got home that night, Appellant showered and washed the clothes he had been wearing. His wife was at home, but he did not tell her what happened and did not contact law enforcement.

a) Appellant's Statements to Police

Upon investigation, local police came to believe that Appellant was either involved in or had witnessed Fischer's death. When police contacted Appellant on Monday, October 12th, he admitted involvement. Officers interviewed him that same day, three days after Fischer's death, and three recordings of those interviews were played for the jury. As noted above, over the course of the interviews, Appellant's account changed in significant ways.

In his initial descriptions, Appellant told officers that he pulled into the parking lot of Bill's Auto Glass, rolled down his window, and asked Fischer what he was doing. According to Appellant, Fischer responded with profanity and threats, prompting Appellant to exit his vehicle. When Fischer threatened to kill him, Appellant said he jumped back toward his car, attempting to leave. Appellant claimed Fischer grabbed his left leg and pulled him from the vehicle, at which point Appellant retrieved a pocketknife from his pants and swung it at Fischer. Appellant further stated that after the altercation, Fischer ran off, and Appellant “took off like a bat out of hell,” believing Fischer was going to gather others to harm him. He described Fischer as a “meth addict” who might return with “junkie” friends to carry out the threat to his life.

After repeating this version of events multiple times, Sergeant Oscar Garcia asked whether Appellant had seen anything in Fischer's hands, such as a weapon. Appellant initially said he had not, but added that when Fischer threatened him, Fischer reached toward his waistband. Appellant claimed this movement led him to believe Fischer was reaching for a weapon, prompting his reaction. He repeated this additional detail in subsequent retellings.

About an hour later, during another interview with Sergeant Garcia, Appellant was asked to tell his story again. The following exchange occurred.

Q: When you confronted him, because you know we have a bunch of witnesses over there who—people we talked to. We had folks say that it appeared that y'all had gotten into a fight. Tell me, did y'all get close to each other and start hitting each other?

A: The one thing that it's not, one hundred percent um, it's a little tiny bit of my memory—at some point I remember a chain.

Q: A chain?

A: That he swung a chain, but I ducked. I don't remember the exact details. I remember him swinging a chain at me. But I don't think he—I think I dodged that[.]

This was the first time Appellant mentioned a chain. He brought it up again when Sergeant Garcia once more asked whether Appellant remembered fighting with Fischer. Appellant replied, “No, I just, the only weird little tidbit is I vaguely remember a chain.” He mentioned the chain three to four times in total, and each time, he indicated that Fischer swung the chain at him once, but that he was able to dodge it.

During a third interview that day with Sergeant Garcia, Appellant was told he was charged with murder. This was when Appellant said, for the first time, that when Fischer swung the chain, it dented Appellant's car.

Throughout the interviews, Appellant was adamant that he felt like his life was in danger during his encounter with Fischer. He emphasized that Fischer was larger than him (“I'm a little guy”; “I guess because of my size he thought I'd be an easy victim”), and that Fischer was the aggressor (“He attacked me”; “I self-defended”). Appellant also repeated his belief that Fischer was a methamphetamine user who was going to return to Bill's Auto Glass with his friends to attack Appellant (“[M]y personal belief is he's a methamphetamine user․ [T]hey stick together.”). This was Appellant's explanation for why he did not tell anyone what had happened—he was worried Fischer and his friends were on the lookout for him, seeking revenge (“I've been looking over my shoulder expecting some junkie to shoot me.”).

b) Appellant's Testimony

At trial, Appellant testified to the following. After Appellant pulled into the parking lot, Fischer walked in front of Appellant's car. Upon noticing Appellant, Fischer walked toward the car's passenger side. Appellant asked Fischer what he was doing, to which Fischer replied, “I'm going to fucking kick your ass.” Fischer then walked to the front of the car, smacked the hood, and then moved toward the driver's side. Appellant got out of his car to try to check on the dogs, but Fischer blocked his path.

An altercation ensued, during which Fischer kicked at Appellant's legs at least three times, trying to “sweep” Appellant's feet out from under him. Appellant jumped back each time. On direct-examination, defense counsel asked Appellant about the chain.

Q: What was he swinging at you?

A: It was a chain.

Q: Did you actually visualize the chain as it was being swung at you?

A: I did.

Q: And how many times do you think he swung the chain at you?

A: Over a dozen times, sir.

Appellant said he was able to avoid being struck by the chain each time Fischer swung it at him.

According to Appellant, Fischer said “I'm going to fucking kill you” several times in a “demonic” voice, which Appellant “took [ ] as a life-threatening threat.”

Appellant said that “[w]hen I actually realized my life was in threat, I jumped backwards into the vehicle.” Fischer then struck his chain against the A-pillar of Appellant's car and said “Fuck you. You ain't going nowhere, bitch.” The chain made a dent in Appellant's car. Fischer then proceeded to drag Appellant out of his car, pulling Appellant by the left leg.

At that point in time, Appellant thought he was going to die. He felt that he had no other choice but to swing his knife at Fischer. Appellant drew a pocketknife from his pants and swung it in Fischer's direction. Appellant believed he hit Fischer either in the bicep or chest. After Appellant struck Fischer, Fischer turned and walked away, and did not appear to be injured.

Appellant immediately got into his car and drove home. As he drove home, he was still holding the knife. He noticed there was blood on his hand and “reacted and threw [the knife] out of the window, kind of disgusted” by the blood.

Throughout his testimony, Appellant was again adamant that he acted in self-defense. He called Fischer an “assailant,” emphasized that he feared for his life, and stressed that Fischer was physically larger than him. Appellant said that he never intended to kill Fischer, and that if he had realized Fischer was seriously injured, he would have called 9-1-1.

c) Witness Testimony

i) Eyewitness's Testimony

An eyewitness at a nearby taco truck watched the entire encounter. Although he was too far away to hear what Fischer and Appellant said to one another, he testified that he had a clear view of the events as they unfolded. His account differed sharply from Appellant's. According to the eyewitness, Fischer walked into the parking lot of Bill's Auto Glass and Appellant pulled in shortly afterward. Appellant parked, got out of his car, approached Fischer, and then returned to his vehicle. Fischer then walked toward the car with his hands raised. At that point, Appellant got out of the car again and began “swinging” at Fischer. The eyewitness described Appellant as the aggressor and testified that Fischer was not acting aggressively and never attempted to strike Appellant. The eyewitness further testified that Fischer repeatedly held his hands up in a surprised manner, as though asking, “What's going on?” He never saw Fischer holding a chain or any other weapon, and he did not see Fischer kick at Appellant or pull him from the car. After the altercation ended, the eyewitness watched Fischer walk toward the taco truck, stumbling on the way. As Fischer got closer, the eyewitness realized he was bleeding. Fischer then collapsed, and someone at the taco truck called 9-1-1.

ii) Forensic Pathologist's Testimony

The jury also heard testimony from a forensic pathologist, Dr. Luisa Florez, who performed Fischer's autopsy. Dr. Florez testified that Fischer died from blood loss due to a stab wound on the left side of his neck that severed a carotid artery. It appeared from the wound that the knife was impaled and then twisted, which Dr. Florez explained was consistent with an “intentional” stabbing motion. The stab and twist motion is “more assurance that there's going to be more damage.” She also testified that because the knife cut into such a large artery, the wound would have been “spewing” an “abundant” amount of blood.

Additionally, Dr. Florez testified that Fischer's blood alcohol concentration was low and was consistent with having consumed about one alcoholic beverage. There was some THC in his system, but those numbers were also low. The toxicology report indicated no other substances in Fischer's system.

On cross-examination, the forensic pathologist agreed with defense counsel that it was possible the “twisting” motion was caused by Fischer attempting to get away. Because the twisting motion could have been what made the stab wound lethal, this indicated that the wound could have started out being non-lethal but then became lethal due to Fischer's retreat.

iii) Character Witnesses’ Testimony

The defense put on six character-witnesses who testified that Appellant is not a violent or aggressive person. Each witness testified that Appellant is a gentle person, and no witness knew Appellant to have ever started a physical or verbal fight.

d) Video Evidence

i) Surveillance Footage

Surveillance footage from a business across the street from the auto glass shop was played for the jury. The surveillance camera recorded the altercation, but the footage was taken from a distance, at night, in a dimly lit area, and is blurry. While it is difficult to discern what is depicted in the video, two moving figures (Fischer and Appellant) can be made out. Each side put on a witness to explain to the jury what they were seeing in the footage.

ii) Responding Officer's Body-Worn Camera

Footage from a responding officer's body-worn camera was played for the jury. The officer arrived on the scene while Fischer was still alive, before emergency medical personnel arrived. Fischer can be seen lying on the ground, bleeding profusely as a bystander keeps pressure on his wound.

That night, the officer spoke with the same eyewitness who later testified at trial. The eyewitness's story was consistent with his trial testimony. He told the officer that Appellant “just started beating up on [Fischer],” that he did not see Fischer “fight back,” and that it looked like Fischer was trying to get away from Appellant. The witness said that before the stabbing, when Appellant went back to his car, Fischer “was standing still,” and that when Appellant swung at him, Fischer did not appear to try to defend himself.

e) Physical Evidence

An officer testified that a wallet chain was found at the scene and that it weighed 4.8 ounces. There was also testimony that Appellant's car was inspected and photographed extensively, but that no dents were found on the vehicle.¹ Another officer testified that there was a long “blood trail” from where Fischer was stabbed to where he collapsed. Photos of the blood trail were admitted into evidence. Additionally, no drugs or weapons were found at the scene or in Fischer's backpack, which was found in the Bill's Auto Glass parking lot.

At the close of evidence, Appellant requested that the jury be instructed on both self-defense, deadly force self-defense, and necessity. The trial court declined to include a necessity instruction in the jury charge, explaining that “the only appropriate charge” was “the justification defense of self-defense.” The trial court instructed the jury on self-defense, in general and in relation to the use of deadly force.

A. Direct Appeal

On direct appeal, Appellant argued that the trial court erred in refusing to include his requested instruction on necessity. The Seventh Court of Appeals overruled the issue and affirmed Appellant's conviction. Dudas v. State, No. 07-24-00173-CR, 2025 WL 806731 at *1, 2025 Tex. App. LEXIS 1713 at *1 (Tex. App.—Amarillo Mar. 13, 2025, pet. granted) (mem. op., not designated for publication). The court below reasoned that because the trial court charged the jury on self-defense in general and in relation to Appellant's use of deadly force, the justification defense of necessity was unavailable. Id. at *3, 2025 Tex. App. LEXIS 1713, at *6–7 (citing Chase v. State, 666 S.W.3d 832, 834–35 (Tex. App.—Tyler 2023, pet. ref'd) (holding the defense of necessity unavailable when the accused utilized deadly force and received an instruction on self-defense)).

B. Appellant's Petition and the State's Response

On appeal to this Court, Appellant argues that receiving a jury instruction on self-defense using deadly force does not preclude an instruction on necessity, and that Appellant was entitled to both instructions. Appellant argues that the Seventh Court of Appeals (among other courts of appeals) erroneously believes that a necessity instruction is unavailable if the trial court provides a deadly-force self-defense instruction. In support of this argument, Appellant points to the statutes defining self-defense and deadly force in defense of person, claiming an absence of plain language barring the necessity defense. See Tex. Penal Code §§ 9.22, 9.31, 9.32.

In response, the State argues that this Court need not decide whether jury instructions on deadly force self-defense and necessity are mutually exclusive. Rather, the State argues that the second element of the statute defining necessity requires at least a net saving of lives. See Tex. Penal Code § 9.22(2). According to the State, this means that Appellant was not entitled to a necessity instruction because the social utility of saving one life does not “clearly outweigh” the taking of another life. Id. The State argues, in the alternative, that the Court should resolve this case on harm.

II. PRECLUSION

First, we turn to the question of whether a jury instruction on self-defense using deadly force precludes one on necessity.

Statutory construction is a question of law reviewed de novo. Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020). If a statute's language is plain, we effectuate that plain language so long as doing so will not lead to absurd results. Id. If the statute's language is ambiguous or if effectuating it would lead to absurd results, then—and only then—can we review extra-textual resources to determine its meaning. Id.; see Tex. Gov’t Code § 311.023.

At least one court below has held that Section 9.32 does not contain a legislative purpose to preclude a defendant from receiving instructions on both defenses. See, e.g., Castro v. State, No. 13-17-00266-CR, 2019 WL 3484426, 2019 Tex. App. LEXIS 6601 (Tex. App.—Corpus Christi, Aug. 1, 2019, no pet.) (mem. op., not designated for publication). Other courts below have held that necessity does not apply when deadly force in self-defense is the conduct claimed to be immediately necessary under the first element of necessity. See, e.g., Chase v. State, 666 S.W.3d 832 (Tex. App.—Tyler 2023, pet. ref'd); Sneed v. State, No. 11-15-00320-CR, 2017 WL 2588164 at *––––, 2017 Tex. App. LEXIS 3912 at *7 (Tex. App.—Eastland Apr. 28, 2017, pet. ref'd) (mem. op., not designated for publication); Kelley v. State, No. 05-15-00545-CR, 2016 WL 1446147 at *––––, 2016 Tex. App. LEXIS 3764 at *21 (Tex. App.—Dallas Apr. 12, 2016, pet. ref'd) (mem. op., not designated for publication).

According to these latter courts, “[a] plain reading of Section 9.32 shows that the Legislature intended to impose a higher standard” for deadly force self-defense. Chase, 666 S.W.3d at 835. That defense is available only if “the actor's life is immediately threatened by another's use of unlawful deadly force or to prevent the commission of specific violent crimes.” Id. In contrast, the defense of necessity “involves a substantially lower showing, requiring only that the conduct be necessary to ‘avoid imminent harm.’ ” Id. Therefore, in a scenario where the defendant has received a deadly force self-defense instruction, “allowing an instruction on necessity ․ would undermine the legislative purpose of limiting the justifiable use of deadly force to preventing an immediate threat to one's life[.]” Id.

We agree. The plain text of the statutes suggests that the Legislature intended the defenses to be mutually exclusive.

Under the necessity statute, 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.

Tex. Penal Code § 9.22. Under the third element, if there is a plain legislative purpose to exclude the necessity defense, then a necessity defense must not form part of the jury charge. See id. Under the deadly force in defense of person statute (in relevant part),

(a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or

(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

Tex. Penal Code § 9.32.

Focusing specifically on the relevant language, under the necessity statute, conduct is justified when “the actor reasonably believes the conduct is immediately necessary to avoid imminent harm.” Id. at § 9.22 (emphasis added). The Penal Code defines “conduct” as “an act or omission and its accompanying mental state.” Id. at § 1.07(a)(10). It defines “harm” as “anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.” Id. at § 1.07(a)(25). The necessity statute may therefore be available when a defendant has engaged in many different types of “conduct” in response to many different types of “harm.” See id. at § 9.22. When drafting Section 9.32, the Legislature was far more specific when it came to defining the conduct and harm at issue.

In the deadly force self-defense statute, the Legislature defined the exact type of “conduct” that was justified under the statute. See Tex. Penal Code § 9.32(a). It also specified the precise types of “harm” that the actor must have been seeking to avoid in order to be entitled to a Section 9.32 instruction. See id. at 9.32(2)(A)-(B). Specifically, the conduct to be justified is “using deadly force.” Id. at § 9.32(a). The imminent harm to be avoided is another actor's “use or attempted use of unlawful deadly force” or another actor's “imminent commission” of a statutorily enumerated offense. Id. at § 9.32(2)(A)-(B).

To instruct a jury on necessity when a defendant obtained a deadly force self-defense instruction would thus undermine the Legislature's purpose of allowing a person to use deadly force in self-defense only under the specific circumstances enumerated in subsections (A) and (B) of Section 9.32. See id. Therefore, when the conduct claimed to be justified is the use of deadly force in self-defense under Section 9.32, a legislative purpose to exclude reliance on the necessity defense plainly appears for purposes of 9.22(3). See id. at § 9.22(3).

III. CONCLUSION

A deadly force self-defense instruction forecloses a necessity instruction. Because the necessity defense was unavailable as a matter of law, the trial court did not err in refusing Appellant's requested instruction. Accordingly, we affirm the judgment of the court of appeals.

CONCURRING OPINION

Is a defendant entitled to submission of a necessity defense when his claim is that he was defending against the victim's unlawful use of deadly force? As the Court's opinion amply shows, the answer is “no.” While the defendant's request for a deadly force instruction should estop him from claiming a necessity defense, he also should not get a necessity defense when the evidence raises only deadly-force self-defense. The evidence in this case supports only the claim that Appellant was defending himself against the victim's unlawful use of deadly force. That evidence raises only deadly-force self-defense; it does not raise necessity. With these comments, I join the Court's opinion.

FOOTNOTES

1.   Contrary to Appellant's claim that Fischer's chain dented his car's A-pillar.

McClure, J., delivered the opinion of the Court, in which Schenck, P.J., Richardson, Yeary, Keel, Walker, Finley, and Parker, JJ., joined.

Parker, J., filed a concurring opinion in which Yeary and Finley, JJ., joined. Newell, J., concurred.