Okay, here is the scenario:

H and W are fishing. They leave the fishing spot early in the morning.

H is driving and stopped for DWI.

Contact made with W while H is busy performing FSTs.

Handgun is discovered on floor at W's feet.

H is charged with DWI. W is charged with UCW. Both are tried to same jury.

H testifies, W does not. W requests "traveling defense" charge, court denies because H testimony indicates weapon is habitually carried. Both appeal.

On appeal wife claims travel defense.

1. Can W claim defense when only H testified.
2. Does Johson v. State, 715 S.W.2d 402, 406 (Houston[1 Dist] 1986). prevent her from appealing? (to claim defense defendant must admit offense.)

I guess the real question is can one person claim a defense that is raised by another?

If the defense is raised by the evidence, the charge should be given. The real question is whether there is sufficient testimony from any source entitling the wife to the defense. For example, any witness could testify as to a self-defense situation and the charge should be given, even if the defendant did not testify.

If the husband stated the gun was carried habitually, then maybe he negated, rather than supported, a traveling defense. But, Birch, 948 S.W.2d at 884 seems entirely consistent with the idea expressed in Wallace, 75 S.W.3d at 586 that even self-defense can be raised without hearing from the defendant.

I must say, however, that I do not think Woodfox, 742 S.W.2d at 409 means another witness can testify about the beliefs held by a defendant as to degree of force reasonably necessary. Ken, are you aware of a case which actually holds a 9.31 instruction was required where the defendant did not testify? I recognize this could have been addressed in Starks, No. 01-02-717-CR, but wasn't.

No, Martin; I do not have a case in mind. I was dealing with the general proposition as to when a charge should be given. I believe that a witness could testify to a certain set of facts that would require a self-defense charge to be given even if the defendant did not testify.