Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-18-00327-CR

Jim Garcia LONGORIA,

Appellant

v.

The STATE of Texas,

Appellee

From the 226th Judicial District Court, Bexar County, Texas

Trial Court No. 2017CR7801

Honorable Mark R. Luitjen, Judge Presiding

Opinion by: Sandee Bryan Marion, Chief Justice

Sitting: Sandee Bryan Marion, Chief Justice

Patricia O. Alvarez, Justice

Liza A. Rodriguez, Justice

Delivered and Filed: February 13, 2019

AFFIRMED

Jim Garcia Longoria was convicted by a jury of murder and sentenced to life in prison. 

The only issue Longoria raises on appeal is that the trial court erred in denying his request to 

include the defense of necessity in the jury charge. We affirm the trial court’s judgment.

BACKGROUND

The evidence is undisputed that Longoria shot and killed the complainant, Gary Davila, on 

the side of a street. The testimony at trial established Davila worked odd jobs for Longoria. 

Around noon on the date of the murder, Longoria went to Davila’s home to talk to him. Davila’s 
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mother testified Longoria and Davila were both angry during the subsequent conversation. When 

Longoria began cussing at Davila, Davila’s mother told Davila to come inside the house and told 

Longoria to leave. 

R.R., Longoria’s seven-year-old grandson, testified he was with his grandfather walking 

his dogs when they stopped at Davila’s house. Davila and Longoria began arguing after Longoria 

asked Davila if he stole his lawnmower, and they left after Davila’s mother told Davila to go inside. 

Sometime later, Longoria was driving them to get pizza and ice cream when they saw Davila 

walking down the street. Longoria stopped the car, and he and Davila began arguing. R.R. testified 

Davila did not have anything in his hands, but Longoria had a gun in his pocket which he removed 

while he was arguing with Davila. As Davila walked away from the car, R.R. testified Longoria 

exited the car and shot him. After shooting Davila, Longoria returned to the car and drove away. 

Raul Venegas, who lived in the area of the shooting, testified he saw a man walk by his 

house and a car slowly following him on his video surveillance system. After seeing that, Venegas 

went to his window and continued observing the events. Venegas testified the driver of the car 

appeared to be yelling something at the man who was walking. The driver exited his car, and the 

two appeared to be arguing, but the man who was walking did not do anything threatening. The 

driver then pulled out a gun, shot the other man, and drove away.

Ray Zuniga, who also lived in the area of the shooting, testified he saw a black car 

following a man walking down the sidewalk. The driver exited the car, and Zuniga could hear the 

driver cursing at the other man who was “just shrugging his shoulders.” Zuniga testified only the 

driver appeared to be angry. The driver then picked up his shirt, pulled out a gun, and shot the 

other man. Zuniga yelled for his family to go inside, and he saw the driver start to raise his gun 

toward him. Zuniga saw a kid in the car exit and grab the driver’s leg. The driver and the kid 
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returned to the car and drove away. Zuniga testified the man who was shot did not do anything 

aggressive toward the driver before the shooting, and his hands were totally empty.

Longoria testified he hired Davila to do odd jobs. Davila told Longoria he was trying to 

get off drugs, but Longoria believed his addiction got worse. Eventually, Longoria no longer hired 

Davila to do any work. Longoria testified some of his equipment and tools started disappearing. 

On the day of the shooting, Longoria confronted Davila at Davila’s house about a missing welder. 

Longoria testified he left after Davila became enraged. When Longoria later drove his grandson 

to pick up pizza and ice cream, he saw Davila walking on the street and decided to approach him 

to see if he had calmed down and to ask again about the welder. Longoria testified Davila became 

enraged, started shuffling his hands, and said “let’s settle it right now.” Given Davila’s strength 

and Longoria’s age and physical condition, Longoria testified he was afraid Davila would kill him 

if he attacked him, so he pulled out a gun and shot him once. Longoria testified he still had five 

or six shots in the gun, but only shot Davila once because he no longer felt threatened. 

On cross-examination, Longoria testified he had the gun in his pocket from the walk earlier 

because he always carries his gun when he walks in the neighborhood. Longoria further testified 

he was not expecting anything bad to happen when he drove his grandson to the store for the pizza 

and ice cream. Longoria conceded he was illegally carrying the handgun but stated that he was 

unaware that it was illegal.

Longoria requested and was given instructions on self-defense and defense of a third 

person. At the charge conference, Longoria’s attorney also requested an instruction on the defense 

of necessity, not as a defense to the murder charge, but as to whether Longoria was unlawfully 

carrying a weapon, contending:

[Defense counsel]: . . . . What we anticipate the State to argue is that Mr. 

Longoria, that he was committing the offense of unlawfully carrying a weapon and 

that would defeat the self-defense. What we’re saying is that at the time of the 
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incident, that it was necessary for him to carry the gun to defend himself against 

Mr. Davila. So you could say that the reason that he had to carry the weapon [was] 

because Mr. Davila had argued with him and things like that, to — to try to defeat 

the unlawfully carrying a weapon.

The trial court’s denial of the requested instruction on necessity is the sole complaint raised on 

appeal.

DISCUSSION

“Our first duty in analyzing a jury-charge issue is to decide whether error exists.” Ngo v. 

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). “Then, if we find error, we analyze that error 

for harm.” Id.

“It is well settled that a defendant has a right to an instruction on any defensive issue raised 

by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and 

regardless of what the trial court may think about the credibility of the evidence.” Sanchez v. State, 

400 S.W.3d 595, 598 (Tex. Crim. App. 2013) (internal quotation omitted). If the evidence, viewed 

in the light most favorable to the defendant, does not establish a defense, however, the defendant 

is not entitled to an instruction on the defense. Ferrell v. State, 55 S.W.3d 586, 591 (Tex. Crim. 

App. 2001).

In order to be entitled to an instruction on the defense of necessity, one of the elements the 

evidence must establish is that the defendant reasonably believed his conduct was “immediately 

necessary to avoid imminent harm.” TEX. PENAL CODE ANN. § 9.22. “‘Reasonable belief’ means 

a belief that would be held by an ordinary and prudent person in the same circumstances as the 

defendant.” Stefanoff v. State, 78 S.W.3d 496, 501 (Tex. App.—Austin 2002, pet. ref’d). 

“‘Imminent’ has been defined as ready to take place, near at hand, impending, hanging 

threateningly over one’s head, menacingly near.” Henley v. State, 493 S.W.3d 77, 89 (Tex. Crim. 

App. 2016) (internal quotation omitted). “Thus, imminent harm is harm that is ready to take 
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place—harm that is coming in the very near future.” Id. Stated differently, “[h]arm is imminent 

when there is an emergency situation and it is ‘immediately necessary’ to avoid that harm.” 

Pennington v. State, 54 S.W.3d 852, 857 (Tex. App.—Fort Worth 2001, pet. ref’d). “In other 

words, a split-second decision is required without time to consider the law.” Id. “The justification 

defense of necessity applies when action is needed ‘immediately’ (i.e., now) to avoid ‘imminent’

harm (i.e., harm that is near at hand).” Henley, 493 S.W.3d at 89.

As previously noted, Longoria requested an instruction of the defense of necessity as to his 

unlawfully carrying a weapon, not as to the murder.1 Thus, the evidence was required to establish 

Longoria reasonably believed his unlawfully carrying of a weapon was “immediately necessary to 

avoid imminent harm.” No evidence was presented, however, to establish Davila posed a threat 

of “imminent” harm to Longoria while Longoria was driving to the store or even when Longoria 

exited his car. Instead, Longoria testified the gun was in his pocket from when he was previously 

walking in the neighborhood because he always carries his gun on such walks, and he was not 

expecting anything to happen when he drove to the store. Although Longoria testified that after 

he exited the car and the two men were talking, Davila’s anger escalated, causing Longoria to fear 

being harmed, this was only after Longoria exited his car and was already unlawfully carrying the

gun. This is no evidence that Longoria believed harm was imminent so he made a split-second 

decision to exit his car while unlawfully carrying the gun. Because the defense of necessity as to 

Longoria’s unlawfully carrying of the weapon was not raised by the evidence, the trial court did 

not err in refusing to charge the jury on that defense.

 1 As Longoria’s attorney anticipated, the jury was instructed Longoria’s use of force was not justified with regard to 

his other defenses if he sought an explanation from or discussion with Davila concerning his differences with Davila 

while he was unlawfully carrying a weapon. The jury was further instructed, “A person commits the offense of 

unlawfully carrying a weapon if the person, intentionally, knowingly, or recklessly carries on or about his person a 

handgun if the person is not on the person’s own premises or premises under his control or inside of or directly en 

route to a motor vehicle that is owned by the person or under the person’s control.”
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CONCLUSION

The trial court’s judgment is affirmed.

Sandee Bryan Marion, Chief Justice

DO NOT PUBLISH