Opinion
No. 05-03-01716-CR
Opinion issued September 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F03-01581-PL. Affirmed.
Before Justices MORRIS, WHITTINGTON, and LANG.
OPINION
Hugh Key Meyers Jr. appeals his conviction for unlawful possession of a firearm by a felon. See Tex. Pen. Code Ann. § 46.04 (Vernon Supp. 2004-05). After finding him guilty as charged, the jury assessed punishment, enhanced by two prior felony convictions, at twenty-five years' confinement. In three issues, appellant contends the evidence is legally and factually insufficient to support his conviction and that the trial judge erred in denying appellant's requested jury charge instruction. We affirm the trial court's judgment. In his first two issues, appellant claims the evidence is legally and factually insufficient to support his conviction. Although appellant concedes he was holding a gun when the police, responding to an emergency call, arrived at the scene, he nevertheless contends the State failed to disprove his defense of necessity. Alternatively, appellant argues his possession of the firearm was temporary and, therefore, not an offense. We disagree with both contentions. When an appellant challenges the legal sufficiency of the evidence supporting a fact finder's rejection of a defense,
we look not to whether the State presented evidence which refuted appellant's self-defense testimony, but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt.Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). The factfinder may draw reasonable inferences from basic to ultimate facts and is free to accept or reject any or all of the evidence presented by either side. See Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000); Thomas v. State, 3 S.W.3d 89, 92 (Tex.App.-Dallas 1999), aff'd, 65 S.W.3d 38 (Tex.Crim.App. 2001). When an appellant challenges "the factual sufficiency of the rejection of a defense, the reviewing court reviews all of the evidence in a neutral light and asks whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence." Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003); Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000) (holding evaluation of eyewitness credibility and demeanor is crucial in determining appropriate verdict and is "a job best suited to the fact finder."). Appellant does not challenge the sufficiency of the evidence to support his conviction for unlawful possession of a firearm by a felon; rather, he claims the State failed to disprove his necessity defense that the conduct in question was justified. See Tex. Pen. Code Ann. § 9.02 (Vernon 2003) ("It is a defense to prosecution that the conduct in question is justified under this chapter."). Conduct is justified when (i) the actor reasonably believes that the conduct is immediately necessary to avoid imminent harm and (ii) according to ordinary standards of reasonableness, the desirability and urgency of avoiding the harm clearly outweigh the harm sought to be prevented by the law proscribing the conduct. See Tex. Pen. Code Ann. § 9.22(a) (b) (Vernon 2003).
"Imminent" means something that is impending, not pending; something that is on the point of happening, not about to happen. An "imminent harm" occurs when there is an emergency situation, and it is "immediately necessary" to avoid that harm when a split-second decision is required without time to consider the law.Smith v. State, 874 S.W.2d 269, 272-73 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd). Whether the accused's belief is reasonable is a question of fact and should be viewed from the accused's standpoint at the time he acted. See Fitzgerald v. State, 782 S.W.2d 876, 885 (Tex.Crim.App. 1990); Washington v. State, 152 S.W.3d 209, 212 (Tex.App.-Amarillo 2004, no pet.) (whether "the situation is of that ilk is determined from the standpoint of the accused."). Once a defendant meets his burden of producing sufficient evidence to raise a defensive theory, the State has the burden of persuasion in disproving the same. Stefanoff v. State, 78 S.W.3d 496, 500 (Tex.App.-Austin 2002, pet. ref'd) ("If the defendant adduces evidence, regardless of source and strength, raising every element of the defense, then the burden shifts to the State to disprove the defense beyond a reasonable doubt."). Although appellant claims the evidence is legally and factually insufficient because the State failed to disprove his defense of necessity, we cannot agree. Dallas police officer Michael Mata testified he and his partner, Jason Jarc, responded to a call on April 7, 2003. The caller indicated a man and a woman were fighting in the parking lot of the State Parole building at 2500 Second Avenue in Dallas. When the officers arrived, there were only two men in the parking lot, standing near the front of a car. The officers saw appellant holding a gun and pointing it at a man later identified as George Brown whose hands were in the air. Officer Mata described appellant as looking "grim" and "angry" and testified appellant was shouting at Brown. Both officers drew their weapons and pointed them at appellant. Officer Mata yelled loudly, "Dallas police. Drop the gun." Appellant did not do so. After Officer Mata repeated the instruction several times, appellant brought the gun to his side and walked along the side of the car. Brown still had his hands in the air. Appellant then turned and ran with the gun. Officer Mata placed his gun in the holster and followed appellant, chasing him approximately two hundred yards. As they approached some apartments, appellant threw down the gun and turned to run up some stairs. Officer Mata tackled appellant before he could go up the stairs. According to Officer Mata, appellant did not tell the officers, when they arrived on the scene, that he was in fear of his life or that he had been a victim of a crime. Officer Jarc testified to similar facts. There were two black males and a car in the parking lot when the officers arrived. Appellant was holding a gun on Brown. Appellant did not ask for help when the officers arrived. Although they ordered him to drop the gun, he did not do so. He lowered the gun to his side and walked behind the car. He then ran with the gun in his hand toward some nearby apartments. Officer Mata followed appellant on foot while Officer Jarc drove the squad car. After the officers subdued appellant, Brown walked over to where the squad car was. When Officer Jarc looked over at the parking lot where they had been previously, the other car was no longer there. In contrast, appellant testified he was driving in his car when he saw Brown "beating up on" a woman. Although his first thought was not to get involved, appellant called 911 and reported the incident. When the operator asked him the name of the street, he could not remember so he turned around and drove back. By this time, Brown was kicking the woman. Appellant got out of his car and told Brown that he had called the police who were on the way. According to appellant, Brown "immediately got rude with [him]," cursing appellant and pulling a gun on him. Appellant froze. Shortly thereafter, another man walked up behind appellant and pointed a gun at Brown, telling him to drop the gun. Appellant did not know the second man and was not sure where he came from. Brown immediately put the gun on the ground. Appellant "panicked" and reached for the gun. Appellant testified he picked it up because he felt threatened and he felt his life was still in danger. Appellant told the woman she could sit in his car which she did. The other man continued to stand with the gun pointed at Brown. According to appellant, about two or three seconds later, he noticed the police driving down the street. He walked over to the man with the gun and tried to hand him Brown's gun, but the man refused to take it. At that point, the police got out of their car. When appellant saw them reaching for their guns, he again panicked and ran. When taken in the light most favorable to the judgment, the evidence shows appellant was pointing a gun at Brown when the officers arrived. Appellant did not express any relief at seeing the officers nor did he show he had been under any duress. In fact, he refused to obey Officer Mata's order to drop the gun. Rather, he walked to the rear of the car, then ran approximately two hundred yards to a nearby apartment complex before dropping the gun. Although appellant claims his conduct in picking up the gun was justified because, under his version of events, he reasonably believed it was "immediately necessary to avoid imminent harm," the jury was the factfinder in this case and, as such, was entitled to believe or disbelieve each witness's testimony, including appellant's testimony that Brown pulled a gun on him, an unknown man came to appellant's rescue, appellant still felt his life was in danger after Brown dropped the gun, and that the unknown man would not take the gun handed to him by appellant. On the basis of the above facts, we conclude a rational jury could have found against appellant on his necessity defense beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914. And, giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude, after reviewing the evidence in this case, that the State's evidence taken alone is too weak to support the finding or that the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. See Zuliani, 97 S.W.3d at 595. Additionally, appellant claims the evidence shows his possession was temporary and does not, therefore, constitute an offense. In support of this argument, appellant cites two Texas cases involving defendants charged with unlawfully carrying a weapon. See Brooks v. State, 15 Tex. Ct. App. 88 (1883); Pyka v. State, 192 S.W. 1066 (Tex.Crim.App. 1917). In each case, the court determined the evidence was insufficient to support the conviction because the evidence established each defendant picked up and held a weapon but did not carry the weapon within the "meaning of the law." See Brooks, 15 Tex. Ct. App. at 88; Pyka, 192 S.W. at 1067. In contrast, in this case, appellant was charged with possessing a weapon. The evidence showed appellant picked up the gun, pointed it at Brown, threatened Brown with the gun, then turned and ran approximately two hundred yards while still possessing the gun. Because the facts in the cases appellant cites are distinguishable from the facts recited above, they do not preclude appellant's conviction in this case. We conclude the evidence is legally and factually sufficient to support appellant's conviction. We overrule appellant's first and second issues. In his final issue, appellant claims the trial judge erred in denying his requested jury charge instruction. The jury was instructed, pursuant to section 6.01 of the Texas Penal code, that (i) a party commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession, and (ii) possession is a "voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control." See Tex. Pen. Code Ann. § 6.01(a) (b) (Vernon). Appellant requested the jury charge instruct the jurors that a "person who omits to perform an act does not commit an offense unless a law defined by Section 1.07 provides that the omission is an offense or otherwise provide that he has a duty to perform the act." See Tex. Pen. Code Ann. § 6.01(c) (Vernon). The judge denied appellant's request. Appellant now claims the trial judge erred in so ruling. We do not agree. Appellant claims the jury should have been instructed on omission because the State argued he should have terminated his possession of the firearm. Appellant concedes, however, he was "not charge by way of indictment with a crime of omission." Because he was not charged with a crime of omission, he was not entitled to an instruction under section 6.01(c). See Oler v. State, 998 S.W.2d 363, 368 (Tex.App.-Dallas 1999, pet. ref'd, untimely filed) (appellant was not charged with conduct by failure to act or by omission; therefore, section 6.01(c) did not apply and State was not required to either plead or prove corresponding duty to act). We overrule appellant's final issue. We affirm the trial court's judgment.
Appellant also relies on United State v. Panter, 688 F. 2d 268 (5th Cir. 1982), a case involving a Mississippi felon convicted under a federal statute. Because the case does not address section 46.04 of the Texas Penal Code, we conclude it is inapposite, and we decline to address it.