ACCEPTED
03-14-00579-CR
4328168
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/2/2015 11:08:04 AM
No. 03-14-00579-CR JEFFREY D. KYLE
CLERK
FILED IN
In the Third Court of Appeals 3rd COURT OF APPEALS
AUSTIN, TEXAS
Austin, Texas
3/2/2015 11:08:04 AM
JEFFREY D. KYLE
Clerk
PERRY PENNING,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
On appeal from the County Court-at-Law Number Seven,
Travis County, Texas
Trial Cause No. C-1-CR-12-209292
STATE'S BRIEF
DAVID A. ESCAMILLA
TRAVIS COUNTY ATTORNEY
GISELLE HORTON
ASSIST ANT TRAVIS COUNTY ATTORNEY
State Bar Number 10018000
Post Office Box 1748
Austin, Texas 78767
Telephone: (512)854-9415
TCAppellate@traviscountytx.gov
March 2, 2015 ATTORNEYS FOR THE STATE OF TEXAS
ORAL ARGUMENT IS NOT REQUESTED
TABLE OF CONTENTS
INDEX OF AUTHORITIES ......................................... ii
STATEMENT OF THE CASE ....................................... 1
ISSUES PRESENTED .............................................. 1
BACKGROUND .................................................. 2
SUMMARY OF THE STATE'S ARGUMENT ......................... 4
ARGUMENT
Reply Point One: The trial court did not err in failing to
include a jury instruction on self-defense. . ...................... 5
Reply Point Two: The trial court did not err in failing to include
a jury instruction on the justification of necessity ................. 5
The trial court properly found that a reasonable view of
Penning's testimony did not support the conclusion that
Penning had admitted to intentionally and knowingly
displaying a firearm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
PRAYER ........................................................ 10
CERTIFICATE OF COMPLIANCE ................................. 11
CERTIFICATE OF SERVICE ....................................... 12
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INDEX OF AUTHORITIES
Statutes Page
TEX. PENAL CODE § 9.22
(West Supp. 2014) ............................................ 6
TEX. PENAL CODE§ 9.31
(West Supp. 2014) ............................................ 6
TEX. PENAL CODE§ 42.01(a)(8)
(West Supp. 2014) ............................................ 1
Cases
Cornet v. State, 359 S.W.3d 217
(Tex. Crim. App. 2012) ........................................ 9
Dewalt v. State, 307 S.W.3d 437
(Tex. App.- Austin 2010, pet. ref' d) ............................ 6
Johnson v. State, 650 S.W.2d 414
(Tex. Crim. App. 1983) ........................................ 6
Juarez v. State, 308 S.W.3d 398
(Tex. Crim. App. 2010) .................................. 1, 5, 6, 7
Krajcovic v. State, 393 S.W.3d 282
(Tex. Crim. App. 2013) ........................................ 8
Pennington v. State, 54 S.W.3d 852
(Tex. App.-Fort Worth 2001, no pet.) .......................... 6
Shaw v. State, 243 S.W.3d 647
(Tex. Crim. App. 2007) ..................................... 7, 10
Sony v. State, 307 S.W.3d 348
(Tex. App. -San Antonio 2009, no pet.) ......................... 6
Wilson v. State, 777 S.W.2d 823
(Tex. App.-Austin 1989), aff'd, 853 S.W.547
(Tex. Crim. App. 1993) ........................................ 7
Other Sources
THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE
(5th ed. 2014) ................................................ 7
11
STATEMENT OF THE CASE
Penning was charged by information with the Class B misdemeanor
offense of disorderly conduct by displaying a firearm on June 6, 2012. CR
7-8, 89? A jury found him guilty of the offense on May 14, 2014. CR 92.
Thereafter, Penning accepted the State's punishment offer, and, on May 22,
2014, the trial court sentenced Penning to 180 days' confinement in jail and
a $2,000 fine, but suspended imposition of sentence and placed Penning on
community supervision for two years. CR 93-95. Penning gave written
notice of appeal on June 20,2014. CR 99.
ISSUES PRESENTED
The confession and avoidance doctrine is satisfied- and self-defense
and necessity instructions are required -when a reasonable view of the
defendant's testimony would support the defendant's admission of the
conduct and the required mental state. Juarez v. State, 308 S.W.3d 398, 401
(Tex. Crim. App. 2010). At trial, Penning categorically denied displaying
A person commits the offense of disorderly conduct by intentionally or
knowingly displaying a firearm or other deadly weapon in a public place in a manner
calculated to alarm. TEX. PENAL CODE§ 42.0l(a)(8) (West Supp. 2014).
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his handgun, testifying instead that it remained in its holster, tucked inside
his pants. 6 RR 106, 135-36. He also denied intending to display his
handgun. Did the trial court err in refusing to include the requested self-
defense and necessity instructions in the jury charge?
BACKGROUND
Penning was charged with disorderly conduct after a road rage
incident in which he stopped his car on Highway 183, got out, and
displayed a handgun to Jerod Hill, another motorist. 5 RR 72-79.
Hill had attempted to merge into the right lane of traffic on the
highway. 5 RR 27. Because other drivers did not let him merge, he was
forced onto the shoulder, which was about to end several feet ahead. 5 RR
74. Penning and his wife drove past Hill without letting him in, forcing Hill
to slam on his brakes to avoid hitting Penning's car or a guardrail. 5 RR 74.
Penning came to a standstill in the right lane of the highway. 5 RR 74.
Yelling at Hill, he got out of his car and walked towards him. 5 RR 28. Hill
reached for his cell phone. 5 RR 28. Penning pulled a gun on Hill and
yelled, "If I do it, you're dead." 5 RR 35, 76. Both Penning and Hill fell
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silent. 5 RR 28. Penning got back into his car. 5 RR 77.
Hill drove around Penning's car and exited the highway. 5 RR 77.
Penning followed. 5 RR 77. When Hill realized that Penning was following
him, he called 9-1-1 and ran a red light out of fear for his own safety. 5 RR
29. Penning continued to follow Hill for ten minutes before pulling into a
gas station, where police eventually detained him. 5 RR 31, 125-26, 129.
Police handcuffed Penning and seized the handgun for safety
reasons after they confirmed that he was armed, told him not to reach for
his weapon, and saw him quickly move his arm toward the gun. It was
loaded. 5 RR 92. They arrested Penning after Hill was brought to the scene
and identified him. 5 RR 112.
Penning took the stand at trial. 6 RR 106-190. The first thing out of
his mouth after he stated his name was, "I never displayed my handgun.
Never." 6 RR 106. "I don't depend on showing it to anybody." 6 RR 107. In
any event, he testified at trial that he did not intend to display his weapon.
6 RR 140. Penning explained that he generally avoids displaying his
3
weapon because he doesn't want anyone to know he is carrying a firearm.
6 RR 141.
At the close of evidence, defense couns,el requested jury-charge
instructions on self-defense, necessity, and public duty, which the trial
court denied. 6 RR 195-97.
In two points of error, Penning contends that his testimony satisfied
the confession and avoidance doctrine, and that the trial court therefore
erred in denying his requests for jury instructions on self-defense and
necessity.
SUMMARY OF THE STATE'S ARGUMENT
Penning asks the Court to hold that a defensive justification may be
raised by speculative defense testimony, but binding precedent forbids
this. He also urges the Court to abandon common sense when viewing the
rational inferences that arise from the evidence in question. The record
shows that Penning did not affirmatively admit displaying the weapon,
but merely speculated that someone might have seen about an inch of it.
He also vehemently denied having the required mental state. On this
4
record, the confession and avoidance doctrine is not satisfied. The trial
r
court therefore did not err in refusing to include the requested self-defense
and necessity jury instructions in the jury charge.
ARGUMENT
Reply Point One: The trial court did not err in failing to
include a jury instruction on self-defense.
Reply Point Two: The trial court did not err in failing to
include a jury instruction on the justification of necessity.
Penning contends that his testimony amounted to an admission
under the law, even though he denied displaying or intending to display
his weapon. He asks the Court to interpret "intentionally or knowingly
display" broadly, to include "manifesting or giving evidence of its
presence through gestures or bodily posture even if the gun is not in plain
sight." Penning's Brief, p. 11.
Under the confession and avoidance doctrine, before a criminal
defendant is entitled to a requested necessity or self-defense instruction,
he must first admit committing the offense and then offer a justification for
the misconduct. Juarez v. State, 308 S.W.3d 398 (Tex. Crim. App. 2010). To
5
receive a necessity instruction, a defendant must present evidence that he
reasonably believed that his conduct was immediately necessary to avoid a
specific, imminent harm. TEX. PENAL CODE§ 9.22 (West Supp. 2014);
Johnson v. State, 650 S.W.2d 414, 416 (Tex. Crim. App. 1983); Dewalt v. State,
307 S.W.3d 437 (Tex. App.- Austin 2010, pet. ref' d); Sony v. State, 307
S.W.3d 348 (Tex. App.-San Antonio 2009, no pet.); Pennington v. State, 54
S.W.3d 852 (Tex. App.-Fort Worth 2001, no pet.). To receive a self-defense
instruction, the evidence must show that Penning reasonably believed that
his use of force was immediately necessary to protect himself from Hill's
use or attempted use of unlawful force. TEX. PENAL CODE§ 9.31 (West
Supp. 2014).
In Juarez v. State, 308 S.W.3d at 405-06, the Court of Criminal Appeals
reaffirmed that, to be entitled to a necessity instruction, a defendant must
admit both the act and the mental state. Although Juarez denied biting the
officer intentionally, knowingly, or recklessly, he nevertheless admitted
biting the officer because the officer had him on the ground and was
causing him to suffocate. An intentional, knowing, or reckless biting
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reasonably could have been inferred from the defendant's testimony.
Juarez, 308 S.W.3d at 405-06. The Juarez Court therefore held that the
defendant should have been given the requested necessity instruction.
Thus, under Juarez, the rule is that a requested instruction is required if a
reasonable view of the defendant's testimony would support the
defendant's admission of the conduct and the required mental state.
Whether the evidence raises a necessity defense so as to require a
jury instruction is require is a question of law. Wilson v. State, 777 S.W.2d
823, 825 (Tex. App.-Austin 1989), aff'd, 853 S.W.547 (Tex. Crim. App.
1993). In determining whether a defensive instruction is warranted, "a
court must rely on its own judgment, formed in the light of its own
common sense and experience, as to the limits of rational inference from
the facts proven." Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007).
The trial court properly found that a reasonable view of Penning's
testimony did not support the conclusion that Penning had admitted to
intentionally and knowingly displaying a firearm.
To intentionally or knowingly display means to intentionally or
knowingly present to view. THE AMERICAN HERITAGE DICTIONARY OF THE
7
ENGLISH LANGUAGE (5th ed. 2014). Nothing shows that Penning's
tightening his shirt to possibly reveal the shape of the gun and holding his
hand near his hip presented his weapon to view or caused it to be seen. See
6 RR 134-36. Viewed in the context of this record, Penning's testimony
speculating that "less than half an inch of barrel and maybe a piece of
holster" might have been seen was not an admission to presenting a
firearm to view. Certainly his testimony did not admit to doing so
intentionally or knowingly. 6 RR 141.
Rather than affirmatively admit the conduct and the required mental
state, as the confession and avoidance doctrine requires, Penning offered
only speculative testimony about what a "normal person" "most likely"
would have thought. 6 RR 136-37. Evidence to support a defense "cannot
be based on speculation or hypothetical'what if' scenarios." Krajcovic v.
State, 393 S.W.3d 282, 287 (Tex. Crim. App. 2013).
Penning's testimony denied that he engaged in the alleged
misconduct. And he unequivocally denied having the requisite mental
state.
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DEFENSE COUNSEL: Did you intend to display your weapon
when you put your hand on your hip?
PENNING: No. My intention was not to display my
weapon. In fact, I didn't even display it. My weapon is still in
the holster. About all you could-- if you want to call it display
-- it's less than half inch of barrel and maybe a piece of holster,
so that would be display. It don't even meet the criteria of
display in the law.
6 RR 140-41. And, unlike Juarez, the requisite mental state cannot
reasonably be inferred here.
Penning has failed to view the facts of this case through the lens of
common sense. He has also misread Cornet v. State, 359 S.W.3d 217 (Tex.
Crim. App. 2012) when he asserts that "where a defendant denies
committing an element of the charged crime, but testifies to conduct that
could be construed as commission of the element in the legal sense, he has
'essentially admitted' to it under the doctrine of confession and
avoidance." Penning's Brief, p. 7. Cornet specifically did not reach that
issue. Id. at 227.
Viewing the record in a defense-favorable light does not mean
leaving common sense out of the picture, as appellate counsel would have
9
the Court believe. Common sense shows that Penning did not admit to
displaying his gun with the required mental state. See Shaw, 243 S.W.3d at
658. Penning was trying to have it both ways; he denied committing the
offense to avoid conviction, and at the same time he tried to admit just
enough to be entitled to defensive instructions. The limited inference made
in Juarez was commonsensical. Here, however, Penning's testimony was
not only highly contradictory but also highly speculative. Inferring an
admission of intentional display from that testimony would exceed the
bounds of common sense. To reward Penning now with a reversal for new
trial would encourage dodgy trial testimony, undermine the policy behind
the confession and avoidance doctrine, and leave trial courts without any
true guidance.
PRAYER
For these reasons, the Travis County Attorney, on behalf of the State
of Texas, asks this Court to overrule Penning's points of error and affirm
the judgment of conviction for disorderly conduct.
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Respectfully submitted,
DAVID A. ESCAMILLA
TRAVIS COUNTY ATTORNEY
I
Assist t7ravis County Attorney
Stat , /arNumber 10018000
P Office Box 1748
Austin, Texas 78767
Telephone: (512)854-9415
TCAppellate@traviscountytx.gov
ATTORNEYS FOR THE STATE OF TEXAS
CERTIFICATE OF COMPLIANCE
Relying on Corel WordPerfect's word-count function, I certify that
this document complies with the word-count limitations of TEX. R. APP. P.
9.4. The document (counting all relevant parts under TRAP 9.4(i)(1))
contains 2338 words.
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CERTIFICATE OF SERVICE
I certify that I have sent a complete and legible copy of this State's
Brief via electronic transmission, to Ms. Connie Kelley, at
warrentucker@grandecom.net on or before March 2, 2015.
ravis County Attorney
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