IN THE
TENTH COURT OF APPEALS
No. 10-08-00179-CR
JANET LEE ELLIOTT,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 29698CR
OPINION
Raising two issues, Janet Lee Elliott appeals her conviction and six-year prison
sentence for the offense of intercepting a telephone conversation by recording it without
the consent of either party to the conversation. See TEX. PEN. CODE ANN. § 16.02(b)
(Vernon Supp. 2008)). We will affirm.
Background
Janet and David Elliott were going through an acrimonious and protracted
divorce after about eighteen months of marriage. Janet had undergone numerous back
surgeries because of a car accident and was unable to work. The trial judge in their
divorce proceeding ordered that, while the divorce was pending, she could reside in
David’s home and have exclusive use of a car he allegedly had bought for her before
they were married. Janet feared that David would take her car and hide it, so she kept
the keys hidden. After hearing an answering machine message (which Janet made a
recording of) in which Eric Elliott (David’s son and a Plano police officer) alluded to
taking Janet’s car, Janet obtained and connected a device to the phone to record
telephone conversations. She recorded telephone conversations for about a month,
edited them, and sent an edited tape to the Plano Police Department along with a
complaint that Eric and David were conspiring to take away her car. An internal affairs
investigation occurred (in which Eric was not internally disciplined), and an
investigator spoke with Janet. Janet was subsequently indicted for committing the
offense of interception of an oral communication.
At trial, Janet readily admitted to recording telephone conversations of David
and Eric without their consent. The trial court refused her request for jury instructions
on the defenses of self-defense and necessity. She alleges in her two issues that the trial
court erred in refusing her two requested instructions respectively.
Standard of Review
In reviewing complaints of error in the trial court’s charge, we use a two-step
review process. We first determine whether charge error exists and then determine
whether the error caused sufficient harm to warrant reversal. Abdnor v. State, 871
S.W.2d 726, 731-32 (Tex. Crim. App. 1994); Porter v. State, 921 S.W.2d 553, 557 (Tex.
Elliott v. State Page 2
App.—Waco 1996, no pet.). The underlying rationale is that “a defendant is entitled to
be convicted upon a correct statement of the law.” Hutch v. State, 922 S.W.2d 166, 174
(Tex. Crim. App. 1996). If we find that an error exists and that it caused sufficient harm,
we must reverse the trial court’s decision. See Porter, 921 S.W.2d at 557.
A defendant is generally entitled to a jury instruction on every
claimed defensive issue so long as the evidence adduced at trial is
sufficient to raise each element of the defense. See Granger v. State, 3
S.W.3d 36, 38 (Tex. Crim. App. 1999); Hamel v. State, 916 S.W.2d 491, 493
(Tex. Crim. App. 1996). In determining whether evidence raises a defense,
neither the credibility, source, or strength of the evidence is material.
Hamel, 916 S.W.2d at 493 (stating that “an accused has the 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 or may not think about the credibility of the
defense”); Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993) (“The
evidence which raises the issue may be either strong, weak, contradicted,
unimpeached, or unbelievable.”). If evidence is such that a rational juror
could accept it as sufficient to prove a defensive element, then it is said to
“raise” that element. See 43 George E. Dix & Robert O. Dawson, Texas
Practice: Criminal Practice and Procedure § 36.47 (2d ed. 2001). The
defendant’s testimony by itself is sufficient to raise a defensive issue
requiring an instruction in the jury charge, particularly when the
defendant makes a proper and timely request for such a charge. Hayes v.
State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987). It is only when the
evidence fails to raise every element of a defensive issue that a trial court
may refuse to grant an instruction requested by the defendant. See Muniz,
851 S.W.2d at 254. On appeal, evidence in support of the defensive issue
is reviewed in the light most favorable to the defense. Shafer v. State, 919
S.W.2d 885, 886 (Tex. App.—Fort Worth 1996, pet. ref’d).
Stefanoff v. State, 78 S.W.3d 496, 499-500 (Tex. App.—Austin 2002, pet. ref’d).
Necessity
Justifications that exclude criminal responsibility are set out in Chapter 9 of the
Penal Code. “It is a defense to prosecution that the conduct in question is justified
under this chapter.” TEX. PEN. CODE ANN. § 9.02 (Vernon 2003).
Elliott v. State Page 3
One such statutory justification is necessity:
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. § 9.22.
The rationale of the defense is not that the defendant, faced with
the unnerving threat of harm unless he does an act which violates the
literal language of the criminal law, somehow loses his mental capacity to
commit the crime in question. Nor is it that the defendant has not
engaged in a voluntary act. Rather, it is that even though he has done the
act the crime requires and has the mental state which the crime requires,
his conduct which violates the literal language of the criminal law is
justified because he has thereby avoided a harm of greater magnitude.
Arnwine v. State, 20 S.W.3d 155, 159 (Tex. App.—Texarkana 2000, no pet.) (citations
omitted).
Elliott’s first issue complains that the trial court erred by refusing to instruct the
jury on necessity. To raise necessity, a defendant must admit that she committed the
offense and then offer necessity as a justification. Young v. State, 991 S.W.2d 835, 839
(Tex. Crim. App. 1999). Elliott testified at trial and admitted recording the phone calls.
The threshold issue is thus whether the record contains evidence that Elliott reasonably
believed her conduct was immediately necessary to avoid imminent harm. See Jackson
v. State, 50 S.W.3d 579, 595 (Tex. App.—Fort Worth 2001, pet. ref’d).
Elliott v. State Page 4
[A] defendant is required to present evidence that she reasonably believed
a specific harm was imminent. See TEX. PENAL CODE ANN. § 9.22(1);
Johnson v. State, 650 S.W.2d 414, 416 (Tex. Crim. App. 1983)[, overruled in
part by Boget v. State, 74 S.W.3d 23, 31 (Tex. Crim. App. 2002)]; Brazelton,
947 S.W.2d at 648. “Imminent” means something that is impending, not
pending; something that is on the point of happening, not about to
happen. Jackson v. State, 50 S.W.3d 579, 594-95 (Tex. App.—Fort Worth
2001, pet. filed); Smith v. State, 874 S.W.2d 269, 272-73 (Tex. App.—
Houston [14th Dist.] 1994, pet. ref’d). Harm is imminent when there is an
emergency situation and it is “immediately necessary” to avoid that harm.
Jackson, 50 S.W.3d at 594-95; Smith, 874 S.W.2d at 273. In other words, a
split-second decision is required without time to consider the law. Jackson,
50 S.W.3d at 594-95; Smith, 874 S.W.2d at 273.
Pennington v. State, 54 S.W.3d 852, 857 (Tex. App.—Fort Worth 2001, pet. ref’d).
Elliott testified that she decided to record the phone conversations after hearing
an answering machine message relating to Eric trying to get her car. She said that she
began to record phone conversations for about a month so that if David and Eric were
planning to take her car, she would know about it and try to prevent it. Also, she said
she recorded the phone conversations so that someone would believe her claim that
they were planning to take the car because it would otherwise be her word against
David’s. In several of the recorded conversations, David and Eric discussed possibly
taking the car.
Elliott also testified that she was afraid they might harm her, as David had
previously threatened her with violence and had poked her surgery incisions while she
was sleeping. In one of the recorded conversations, Eric exclaimed that he wished
Elliott were dead and that he would like to shoot her. Thereafter, Elliott edited the
recorded conversations and sent them on one tape to the Plano Police Department with
a letter explaining who was on the tape and what the conversations were about.
Elliott v. State Page 5
However, she never reported her fears of the car being taken or her being physically
harmed to law enforcement in Ellis County.
Elliott argues that the trial court erred in refusing a jury instruction on necessity
because the recorded telephone conversations support her being fearful of David and
Eric taking her car and of possible personal injury by David. The State counters that
there is no evidence of imminent harm to Elliott or her car and that she learned of Eric’s
alleged threat while she was already committing the offense of intercepting a telephone
conversation.
We find no Texas case where a defendant urged a necessity defense to the
offense of intercepting a telephone conversation. In a similar California case, the
appellate court ruled that the trial court properly refused a jury instruction on necessity
in a prosecution of a husband’s illegal recordings of his wife and her paramour’s
telephone conversations. People v. Strother, 2004 WL 882100, at *2-3 (Cal. Dist. Ct. App.
Apr. 26, 2004, rev. denied) (not designated for publication). In Strother, the marriage
was troubled yet they shared the house, with the husband moving into the basement
and the wife eventually filing for divorce. The husband testified that he recorded
telephone conversations because he wanted to know what was going on between his
wife and her paramour fearing for his daughter’s safety and her subsequent
upbringing, should he lose custody. Id. at *1-3. He also learned from the recorded
conversations of a threat involving a gun, and he had previously become aware from
his wife that the paramour had a gun. Id. Confirming the trial court’s rationale that the
Elliott v. State Page 6
evidence did not establish an imminent threat of harm, the California appeals court
stated:
[D]efendant’s concern “for the safety of [his] daughter,” which prompted
him to continue automatically recording every telephone conversation
after he began the practice, arose from his fear that, if he ultimately lost
custody of his daughter in the pending divorce action, her subsequent
“upbringing” would ultimately suffer, not from a fear for her immediate
physical safety. Even had the jury accepted that defendant's daughter
would be imperiled by remaining in her mother's care, that evidence did
not establish that defendant considered it to pose an “emergency”
situation (cf. In re Eichorn, supra, 69 Cal.App.4th at p. 389).
Finally, the evidence failed to establish that defendant recorded
Christine’s conversations to “protect[ ][him]self from being murdered” by
Christine’s friend Ron, as he now argues. Even had defendant’s testimony
shown that the conversation contained an imminent threat of bodily harm,
which it did not, defendant testified he first heard about “a threat ...
involving a gun” while listening to a conversation he had unlawfully recorded.
This testimony effectively undermined any argument that he engaged in
the illegal eavesdropping because he feared bodily harm at Ron’s hands;
at the most, defendant feared Ron because of what he heard while
engaged in illegal eavesdropping.
Because the evidence offered by defendant was insufficient to
permit a reasonable jury to find that his unlawful eavesdropping “was
done to prevent a significant and imminent evil” (CALJIC No. 4.43), the
trial court properly refused to instruct the jury on the necessity defense.
Id. at *3-4.
We agree with the California court’s analysis and find it, along with Texas
necessity law in general, applicable to this case. Elliott, while understandably
concerned about having her car taken, presented no evidence of imminent harm relating
to the car. See Pennington, 54 S.W.3d at 857 (“Harm is imminent when there is an
emergency situation and it is ‘immediately necessary’ to avoid that harm. … In other
words, a split-second decision is required without time to consider the law.”). Her
Elliott v. State Page 7
general fear of being physically harmed is no evidence of imminent harm, and like the
defendant in Strother, she learned of the alleged shooting threat while listening to an
unlawfully recorded conversation, which undermines her argument that she
intercepted the phone conversations out of fear of being shot. See Strother, 2004 WL
882100, at *4.
In conclusion, because there is no evidence that Elliott engaged in the conduct of
intercepting the phone conversations to prevent imminent harm, the trial court did not
err in refusing to submit a jury instruction on necessity. We overrule her first issue.
Self-Defense
Elliott’s second issue contends that she was entitled to a jury instruction on self-
defense because of the apparent danger that she apprehended; it attempts to fit her
recording of the telephone calls into the statutory justification of self-defense.
Section 9.31(a) of the Penal Code provides that a person is justified in using force
against another when and to the degree she reasonably believes the force is immediately
necessary to protect herself against the other’s use or attempted use of unlawful force.
See TEX. PEN. CODE ANN. § 9.31(a) (Vernon Supp. 2008). By its express terms, this
statute’s application is for a defendant accused of using force against another. Citing
Boget v. State, Elliott argues that self-defense can be asserted when the defendant is
accused of an offense not involving the use of force. See Boget v. State, 74 S.W.3d 23
(Tex. Crim. App. 2002). There the court held that self-defense could apply to the offense
of criminal mischief when the “mischief arises out of the accused’s use of force against
another.” Id. at 24, 31.
Elliott v. State Page 8
In Boget, the defendant was charged with criminal mischief for breaking a truck’s
windshield with a flashlight, and he offered evidence that the truck had been driving at
him and almost hit him. While the court held that self-defense was available to the
defendant in a prosecution for criminal mischief, the mischief must have arisen out of
the defendant’s use of force. See id. at 27 (“in Boget’s case, the criminal mischief was
part and parcel of his ‘use of force against another.’ In other words, without Boget’s use
of force there would have been no criminal mischief.”); id. at 31 (“The relevant inquiry
is whether he directed his force against another.”).
In this case there is no evidence that Elliott directed force against another in
recording the telephone conversations. Therefore, the trial court did not err in refusing
to submit a jury instruction on self-defense. Elliott’s second issue is overruled.
Having overruled both issues, we affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed June 24, 2009
Publish
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