Affirmed and Memorandum Opinion filed December 9, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-08-00202-CR
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DAMON KEITH HUNTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1092290
M E M O R A N D U M O P I N I O N
A jury found appellant, Damon Keith Hunter, guilty of aggravated assault. Consistent with the jury=s assessment of punishment, the trial court sentenced him to five years= confinement in the Institutional Division of the Texas Department of Criminal Justice, probated for five years. In a single issue, appellant contends that the trial court committed reversible error by denying him a jury instruction on the defense of necessity. We affirm.
Factual Background
On November 9, 2006, Angel Rodriguez drove to his father=s house for a family cookout. Family members= vehicles filled the driveway, so Rodriguez pulled his SUV into the driveway of appellant=s home to turn around so he could park legally on the street in front of his father=s house. As Rodriguez pulled into the driveway, appellant opened his garage door and threw an object at Rodriguez=s vehicle, cracking the windshield. Rodriguez leaned out of his SUV and yelled, AF*** you bitch. Don=t ever throw nothing at my truck!@ Appellant then retrieved an AK-47 assault rifle and pointed it at Rodriguez. Rodriguez pulled out of the driveway, left his vehicle, and fled to his father=s house.
Rodriguez found his father in the backyard, told him what happened, and asked him for a gun, fearing appellant would follow with the AK-47. Rodriguez=s father refused to give Rodriguez a gun, and instead called the police.
Appellant testified at trial that, on the evening of November 9, he was in the garage talking to his mother on the phone when he heard loud music outside. He ended his call and opened the garage door to investigate. He saw Rodriguez sitting in his SUV in appellant=s driveway playing the loud music. Appellant did not say anything to Rodriguez, but threw an object he found on the floor at Rodriguez=s vehicle, striking it. Rodriguez quickly pulled out into the street, jumped out of his vehicle, and ran to his father=s house.
Appellant testified that he then went to retrieve his AK-47 from a closet because he was concerned that Rodriguez would return with a weapon. When appellant returned to his garage, he stood with the AK-47 beside or behind his leg, because he Adidn=t want to expose the firearm.@ Eventually, according to appellant, he saw Rodriguez running toward his garage. When Rodriguez saw AK-47, he said, AI see you got AK, B-I-T-C-H, and you going to jail.@ Rodriguez turned and ran away, and as he did so, appellant saw a gun stuck in Rodriguez=s waistband. Rodriguez did not point the gun at appellant.
When the police arrived, they interviewed the people at the scene, including appellant and Rodriguez. Appellant gave written consent for the police to search his home, where they recovered a loaded AK-47 and several magazines from a closet. Appellant testified that he told the police that he did not point the firearm at Rodriguez. However, appellant did not tell the police that he saw Rodriguez return to his house with a gun.
Appellant testified that he had seen Rodriguez with a gun in the past, and described an incident in which Rodriguez had exhibited a gun during an argument between appellant and Rodriguez and Rodriguez=s mother. Appellant also testified that he and Rodriguez had had confrontations in the past about noise and Rodriguez=s vehicle blocking appellant=s driveway. Appellant, his mother, and his uncle all testified that Rodriguez had a bad reputation in the community for carrying a weapon. Appellant also testified that there was an immediate need for him to arm himself with the AK-47 that day, and he thought he had no time to wait because he feared that Rodriguez intended to inflict imminent harm by shooting him.
I. Analysis of Appellant=s Issue
Appellant was indicted and tried for aggravated assault by intentionally and knowingly threatening Angel Rodriguez with imminent bodily injury by using and exhibiting a deadly weapon, namely a firearm. See Tex. Penal Code Ann. '' 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2008). During the charge conference, the trial court refused appellant=s request to include the defense of necessity in the jury charge, but did charge the jury on self-defense using deadly force. On appeal, appellant contends that the defenses of necessity and self-defense are not synonymous, citing Bowen v. State, 162 S.W.3d 226 (Tex. Crim. App. 2005), and that he was entitled to an instruction on necessity because he offered testimony supporting this defense. Appellant also contends the error was harmful.
A. The Standard of Review
A defendant is entitled to an instruction on every defensive issue raised by the evidence, whether the evidence is strong, weak, unimpeached, or contradicted, and even when the trial court thinks that the testimony is not credible. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999); Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993). A defendant=s testimony alone may be sufficient to raise a defensive issue requiring an instruction in the jury charge. Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987); Kenny v. State, ___ S.W.3d ___, ___, No. 14-06-00764-CR, 2007 WL 2790373, at *9 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d). When the evidence fails to raise a defensive issue, the trial court commits no error in refusing a requested instruction. Muniz, 851 S.W.2d at 254; Ford v. State, 112 S.W.3d 788, 793 (Tex. App.CHouston [14th Dist.] 2003, no pet.). A reviewing court must decide whether the evidence adduced by either party, when viewed in the light most favorable to appellant, is sufficient to raise the issue of necessity. See Granger, 3 S.W.3d at 38; Stefanoff v. State, 78 S.W.3d 496, 500 (Tex. App.CAustin 2002, pet. ref=d).
B. The Defense of Necessity
Self-defense and necessity are independent defenses. Bowen v. State, 162 S.W.3d 226, 229 (Tex. Crim. App. 2005). Necessity is a statutory defense that exonerates a person=s otherwise illegal conduct. Stefanoff, 78 S.W.3d at 500. Necessity justifies conduct 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 Ann. ' 9.22 (Vernon 2003). To raise the necessity defense, a defendant must admit that he committed the offense charged and then offer the alleged necessity as a justification for his conduct. Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999); Ford, 112 S.W.3d at 793.
C. The Trial Court Did Not Err In Refusing to Include Necessity Defense in Jury Charge
Courts, including this court, have held that, when deadly force in self-defense is the conduct that is allegedly Aimmediately necessary@ under section 9.22, and the jury is charged on self-defense, the defense of necessity is not available. See, e.g., Searcy v. State, 231 S.W.3d 539, 544 (Tex. App.CTexarkana 2007, pet. ref=d); Banks v. State, No. 14-00-00650-CR, 2002 WL 27265, at *5 (Tex. App.CHouston [14th Dist.] Jan. 10, 2002, pet. ref=d) (not designated for publication); Banks v. State, 955 S.W.2d 116, 118B19 (Tex. App.CFort Worth 1997, no pet.); Butler v. State, 663 S.W.2d 492, 496 (Tex. App.CDallas 1983), aff=d, 736 S.W.2d 668 (Tex. Crim. App. 1987); see also Fitch v. State, No. 14-06-00408-CR, 2007 WL 2447297, at *7 (Tex. App.CHouston [14th Dist.] Aug. 30, 2007, pet. ref=d) (mem. op., not designated for publication) (holding defense counsel was not ineffective by failing to request necessity instruction because defense was not available when deadly force in self-defense was conduct at issue and jury was charged on self-defense). These courts reasoned that the third element of section 9.22 cannot be met, because the Legislature=s purpose in imposing the duty to retreat contained in former Penal Code section 9.32[1] would be undermined if an instruction on the defense of necessity, which does not require retreat, were included in a jury charge on facts implicating the application of self-defense using deadly force. See Searcy, 231 S.W.3d at 544; Banks, 2002 WL 272265, at *5; Banks, 955 S.W.2d at 119; Butler, 663 S.W.2d at 496.
Appellant argues, however, that the reasoning of these cases conflicts with the Court of Criminal Appeals= Bowen decision, which reaffirmed the principle that a defendant is entitled to the submission of every defense raised by the evidence, even if the defense is inconsistent with other submitted defenses. See Bowen, 162 S.W.2d at 229. Further, the Bowen court noted that necessity and self-defense are separate defenses, and that submitting a self-defense instruction does not foreclose the availability of a necessity instruction. Id. at 229B30. Appellant also points out that in Bowen, the court noted that the plain language of Penal Code section 9.22 indicates that the defense of necessity may apply in every case unless specifically excluded by the Legislature, and to determine whether a legislative purpose exists to exclude the defense, we are directed to look to the statute defining the charged offense. Id. at 229. Appellant asserts that in this case, the statutes defining the charged offense are Penal Code sections 22.01 and 22.02, which do not explicitly exclude the necessity defense.
In response, the State distinguishes Bowen as dealing with a resisting-arrest case in which deadly force was not in issue. The State further argues that the Legislature has made clear that when justification for threat or use of deadly force is sought, a duty to retreat is imposed. See Tex. Penal Code ' 9.32. We note that at least one court has distinguished Bowen and applied the same reasoning the State articulates here. See Perry v. State, No. 06-07-00113-CR, 2008 WL 3287038, at *2B3 (Tex. App.CTexarkana Aug. 12, 2008, no pet.) (mem. op., not designated for publication) (distinguishing Bowen and holding that trial court did not err by refusing necessity instruction in aggravated assault case in which jury was instructed on self-defense using deadly force, because inclusion would undermine Legislature=s purpose in imposing duty to retreat).[2]
However, we need not address the parties= arguments concerning Bowen and the third element of the necessity defense, because we hold that appellant failed to adduce evidence sufficient to raise the issue of necessity. As noted above, a defendant is not entitled to an instruction on the defense of necessity unless the defendant has first admitted that he committed the offense charged. See Young, 991 S.W.2d at 838; East v. State, 76 S.W.3d 736, 738 (Tex. App.CWaco 2002, no pet.); Allen v. State, 971 S.W.2d 715, 720 (Tex. App.CHouston [14th Dist.] 1998, no pet.).[3] One cannot establish that an act is justified without first admitting to committing the act. Maldonado v. State, 902 S.W.2d 708, 712 (Tex App.CEl Paso 1995, no pet.). Here, appellant testified that he Adidn=t want to expose the firearm,@ so he Astood with it on the side of [his] leg@ or Aon [his] back leg.@ He also denied pointing the weapon at Rodriguez or pulling it on him, and he told the police he did not point the firearm at Rodriguez. Therefore, because appellant denies the charged conduct, he is not entitled to a necessity instruction. See East, 76 S.W.3d at 738 (holding that appellant was not entitled to claim necessity when he denied driving vehicle that ran into victim); McGarity v. State, 5 S.W.3d 223, 227 (Tex. App.CSan Antonio 1999, no pet.) (holding that defendant in aggravated assault prosecution was not entitled to necessity instruction when he did not admit to hitting victim); Allen, 971 S.W.2d at 720 (holding that defendant, who admitted she left scene without rendering aid to cyclist because she feared individuals chasing her, was not entitled to necessity instruction when she claimed she did not know she had hit anyone).
Additionally, to be entitled to a necessity charge, a defendant must present evidence that he reasonably believed harm was imminent. See Tex. Penal Code Ann. ' 9.22(1). AImminent@ means something that is A>impending, not pending; something that is on the point of happening, not about to happen.=@ Kenny, ___ S.W.3d at ___, 2007 WL 2790373, at *9 (quoting Schier v. State, 60 S.W.3d 340, 343 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d)). An Aimminent harm@ occurs when there is an emergency sitution and it is Aimmediately necessary@ to avoid that harm, when a split-second decision is required without time to consider the law. Kenny, ___ S.W.3d at ___, 2007 WL 2790373, at *9. More than a generalized fear of harm is required to raise the issue of imminent harm. Stefanoff, 78 S.W.3d at 500. A defendant=s belief that conduct was immediately necessary to avoid imminent harm may be deemed unreasonable as a matter of law if undisputed facts demonstrate a complete absence of evidence of immediate necessity or imminent harm. Kenny, ___ S.W.3d at ___, 2007 WL 2790373, at *9; Arnwine v. State, 20 S.W.3d 155, 159 (Tex. App.CTexarkana 2000, no pet).
Appellant contends that he testified that Rodriguez left his driveway, entered his home, and returned with a gun in his waistband and ran toward his garage. Appellant testified to prior confrontations with Rodriguez in which Rodriguez carried a gun. Appellant further testified that he believed there was an immediate need to get his AK-47 and he had no time to wait because he feared that Rodriguez intended to inflict immediate harm by shooting him.
However, viewing the evidence in the light most favorable to the defense, we conclude that it does not raise an issue that appellant reasonably believed a specific harm was imminent. Appellant=s own testimony establishes that he retrieved his AK-47 assault rifle before Rodriguez even allegedly returned to his property.[4] And, by his own admission, appellant did not even see the gun Rodriguez allegedly brought back to his property until after Rodriguez turned and ran away. Thus, his own testimony fails to indicate that he made the decision to get and exhibit his weapon in a split second without time to consider any legal alternatives, such as retreating to his home or calling the police. See Kenny, ___ S.W.3d at ___, 2007 WL 2790373, at *10 (holding necessity instruction not required when appellant=s testimony revealed decision to act was not made in split second without time to consider any legal alternatives). Further, appellant testified that Rodriguez did not get close to him or pull a weapon on him. A generalized fear of harm because he had seen Rodriguez with a gun before and, on one prior occasion Rodriguez was Afixing to pull@ a gun, does not justify appellant=s conduct. See Tex. Penal Code Ann. ' 9.22(1); see also Chunn v. State, 821 S.W.2d 718, 719 (Tex. App.CHouston [1st Dist.] 1991, pet. ref=d) (AThe mere possibility of harm will not support a jury instruction on necessity.@).
In summary, appellant did not admit that he engaged in the charged conduct and he presented no evidence that he reasonably believed harm was imminent. Therefore, we hold that the trial court did not err in refusing appellant=s request for a necessity instruction and overrule appellant=s issue. Because of our disposition of the issue, we need not address appellant=s contention that the trial court=s refusal to charge the jury on necessity caused him to suffer harm.
Conclusion
We overrule appellant=s issue and affirm the trial court=s judgment.
/s/ Jeff Brown
Justice
Judgment rendered and Memorandum Opinion filed December 9, 2008.
Panel consists of Chief Justice Hedges and Justices Guzman and Brown.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Formerly, a defendant who used deadly force was required to establish that Aa reasonable person in the actor=s situation would not have retreated,@ but in 2007, the Texas Legislature amended the self-defense statute to remove this requirement. See Act of May 16, 1995, 74th Leg., R.S., ch. 235, ' 1, 1995 Tex. Gen. Laws, 2141, 2141B42 (amended 2007) (current version at Tex. Penal Code Ann. ' 9.32 (Vernon Supp. 2008). However, the offense here occurred in 2006. Therefore, we apply the prior version of section 9.32. See Act of March 20, 2007, 80th Leg., R.S., ch. 1, ' 3, 2007 Tex. Gen. Laws 1, 1B2 (providing that an offense committed before the act=s effective date is governed by the sections in effect when the offense was committed). For convenience, all references to section 9.32 will be to the prior version.
[2] However, we note that in Fox v State, the court relied on the broad language of Bowen to reject the argument the State makes here. See Fox v State, No. 13-03-230-CR, 2006 WL 2521622, at *3 (Tex. App.CCorpus Christi Aug. 31, 2006, pet. ref=d) (holding submission of self-defense instruction did not preclude submission of necessity instruction in aggravated assault prosecution).
[3] Further, this court has previously held that one who provokes the difficulty, or is responsible for having placed himself in the position from which he attempts to extricate himself by committing a criminal offense, is not entitled to a charge authorizing his acquittal of that offense based upon necessity. Ford, 112 S.W.3d at 794. Here, appellant provoked the difficulty by striking Rodriguez=s vehicle with an unknown object, cracking the windshield.
[4] In his brief, appellant describes the evidence as showing that Rodriguez Aquickly@ returned to his property, but the record does not indicate how much time passed before Rodriguez allegedly returned. Instead, appellant merely answers affirmatively when his counsel asked if he Aeventually@ saw Rodriguez return.