Appeal from the 184th District Court Harris County, Texas
Trial Court Cause No. 1413933
consists of Justices Boyce, Busby, and Wise.
Johnny Omar Rodriguez was indicted for aggravated robbery.
After appellant testified, the trial court charged the jury
on the lesser-included offense of aggravated assault and on
the defense of self-defense, but the court refused a charge
on the defense of necessity. The jury found appellant guilty
of aggravated assault and assessed punishment at twenty-five
challenges his conviction in a single issue: whether the
trial court's refusal of the necessity instruction was
harmful error. We affirm because appellant has not suffered
complainant, Daniel Hamilton, and appellant both testified at
trial. Hamilton testified that he was riding his bike to a
Social Security office when appellant and another man stopped
their car near him. Appellant got out and called Hamilton a
"bitch." Hamilton hopped off his bike and retorted
in kind. Appellant snatched Hamilton's phone out of
Hamilton's jacket pocket, and Hamilton snatched it back.
Appellant lifted his shirt to show Hamilton a handgun, saying
he would shoot and whip Hamilton.
pulled out the gun and took Hamilton's phone again.
Appellant aimed the gun at Hamilton. Hamilton tried to take
the gun away, but appellant pulled back and hit Hamilton in
the forehead with the gun. The clip fell out, but appellant
put the clip back in, and the two started fighting for the
gun. Appellant shot Hamilton; the bullet traversed
Hamilton's ear, shoulder, and back. Appellant ran back to
the car with the phone and took off. Hamilton flagged down a
driver and received medical attention. Hamilton testified
that he had never met appellant before the encounter.
told a different story. He testified that he had sold
methamphetamine to Hamilton frequently over the course of
four months. Appellant was "fronting" Hamilton the
meth-selling the meth to Hamilton on credit. Hamilton owed
appellant $900 for the last ounce of meth, and appellant had
not seen Hamilton for a while. When appellant saw Hamilton
riding a bike, appellant got out of the car to confront
Hamilton. Appellant asked Hamilton for the money, and
Hamilton was giving answers that led appellant to believe
that Hamilton was not going to pay. Appellant got mad.
testified, "I was going to get physical, " so he
took off his jacket and put it on the car door. Appellant
thought they were "just going to fight or
something." When Appellant turned around, however,
Hamilton was pulling a handgun out of his waistband.
Appellant reached for the gun, and he was shot in the hand.
The men tripped over the bicycle, and appellant landed on top
of Hamilton. Appellant and Hamilton were "tussling"
over the gun, and appellant got it.
stood up, and Hamilton lunged at appellant to try to take the
gun back. Appellant was thinking "if he takes the gun
from me-because I only got one hand-he is going to shoot me,
probably in the end killing me." So, appellant ejected
the clip and hit Hamilton on the head with the gun.
charged at appellant again, and appellant tried to hit
Hamilton with the gun. But Hamilton grabbed appellant's
hand. Appellant testified that he was afraid, and he thought
it was immediately necessary to defend himself. He testified,
"I felt like my life was in danger." He didn't
want to be shot again.
went off, hitting Hamilton. Appellant testified that it
wasn't his intention to shoot Hamilton. The gun went off
accidentally. Appellant didn't know there was still a
bullet in the chamber of the gun.
panicked after he shot Hamilton. He fled the scene. He
didn't try to get help. He went to a hospital two days
later for the injury to his hand. He explained, "I just
felt like I was at fault, even though-just for starting it,
what the incident was related to and everything . . . . I
just felt guilty for what happened." Appellant admitted
that he shot and caused bodily injury to Hamilton. But
appellant testified that he didn't take anything from
Hamilton, and there was no robbery.
trial, appellant requested jury instructions on self-defense
and necessity. The trial court included a self-defense
instruction in the charge but overruled appellant's
request for a necessity instruction.