Opinion
No. 14-07-00462-CR
Memorandum Opinion filed July 8, 2008. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the County Criminal Court at Law No. 7, Harris County, Texas, Trial Court Cause No. 1415063.
Panel consists of Justices FROST, GUZMAN, and SEYMORE.
MEMORANDUM OPINION
Appellant David Paul Sholmire appeals his conviction for assault on a family member, claiming in a single issue that the trial court erred in denying his requested jury-charge instruction for the defense of necessity. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 8, 2006, police officers responded to a 9-1-1 call from fifteen-year-old complainant, Matthew, who reported a physical domestic disturbance involving appellant, Matthew's stepfather. After a brief investigation, appellant was arrested and charged with two counts of misdemeanor assault against family members: Matthew and Martha, appellant's wife. Appellant pleaded, "not guilty." Matthew, Martha, and appellant each testified at a jury trial. Martha testified that she and Matthew exchanged words in the kitchen over household chores. Appellant, who had been sleeping in another room, entered the kitchen to intervene in the alleged dispute between Martha and Matthew. An altercation ensued between appellant and Martha, and Martha asked Matthew to notify police. Appellant threatened Matthew and told him not to call the police. Matthew ran to his room. Matthew eventually placed a call to 9-1-1. Matthew and Martha both testified that appellant followed Matthew to Matthew's bedroom. Matthew testified that he placed a call to 9-1-1 on his cell phone, and appellant knocked the phone from his hands. Matthew recalled appellant hitting him on his head six to eight times with a closed fist. Matthew retreated to a neighbor's home. Doctors later treated Matthew for a right orbital blow-out fracture near his eye. Appellant testified that after the altercation in the kitchen, he followed Matthew to the bedroom because, previously that afternoon, appellant had seen Matthew's loaded hunting rifle in the bedroom. Appellant testified that he feared Matthew would shoot him. Appellant described how upon entering the room, he saw Matthew straddling the gun case as if Matthew were unfastening the four latches on the gun case. Appellant denied seeing Matthew open the case or remove the gun from the case. Appellant admitted to hitting Matthew twice, explaining that he did so out of fear for his life, in an attempt to "separate [Matthew] from the gun." Appellant admitted to physically removing Matthew from the vicinity of the gun, but he denied striking Matthew more than twice. Though appellant's trial counsel objected to the jury-charge instructions because there was no defensive instruction for necessity, the trial court denied appellant's request. The jury acquitted appellant of any charges involving appellant's altercation with Martha, but the jury found appellant guilty as charged for the altercation involving Matthew. Appellant was sentenced to 180 days' confinement, but the sentence was suspended and appellant was placed on probation.II. ISSUE AND ANALYSIS
In a single issue, appellant complains that the trial court reversibly erred in denying his requested jury-charge instruction for the defensive issue of necessity. A defendant is entitled to an instruction on any properly requested defensive issue raised by evidence from any source, regardless of whether the evidence is strong or weak, unimpeached or contradicted, or credible or not credible. 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); Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App. 1993). If the evidence is such that a rational juror could accept it as sufficient to prove a defensive element, then the evidence "raises" that element. See Stefanoff v. State, 78 S.W.3d 496, 499 (Tex.App.-Austin 2002, pet. ref'd). A defendant's testimony alone may be sufficient to raise a defensive issue. Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App. 1991); Dyson v. State, 672 S.W.2d 460, 463 (Tex.Crim.App. 1984). When the evidence fails to raise every element of a defensive issue, the trial court commits no error in refusing a requested instruction. Muniz, 851 S.W.2d at 254. If the issue is raised by any party, and every element is supported by the evidence, a trial court's refusal to submit the requested instruction is an abuse of discretion. Id. 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 defensive issue. See Granger, 3 S.W.3d at 38; Lavern v. State, 48 S.W.3d 356, 360 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (en banc). "Necessity" is a justification defense to a criminal charge 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); Young v. State, 991 S.W.2d 835, 838 (Tex.Crim.App. 1999). To raise the defense of necessity, a defendant must admit to the charged conduct and then offer necessity as a justification. See Young, 991 S.W.2d at 839. In this case, appellant admitted to hitting Matthew twice because he feared for his life and wanted to separate Matthew from the gun. The first prong of the necessity defense requires evidence of both a specific imminent harm and immediate necessity. See TEX. PENAL CODE ANN. § 9.22(1). Typically, more than a generalized fear of harm is required to raise the element of imminent harm. See id.; Stefanoff, 78 S.W.3d at 501; Brazelton v. State, 947 S.W.2d 644, 648 (Tex.App.-Fort Worth 1997, no pet.); Chunn v. State, 821 S.W.2d 718, 719-20 (Tex.App.-Houston [1st Dist.] 1991, pet. ref'd). The possibility of harm does not support an instruction on necessity. Chunn, 821 S.W.2d at 719; see Bobo v. State, 757 S.W.2d 58, 63-64 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd). "Imminent" means that harm is immediate, impending, and at the point of happening now, but not about to happen or pending. See Stefanoff, 78 S.W.3d at 501; Schier v. State, 60 S.W.3d 340, 343 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd); Smith v. State, 874 S.W.2d 269, 272-73 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd). "Harm" is defined as any loss, disadvantage, or injury. TEX. PENAL CODE ANN. § 1.07(a)(25) (Vernon 2003). "Imminent harm" occurs when there is an emergency situation and the actor's conduct is "immediately necessary" to avoid that harm stemming from the emergency when a split-second decision is required without time to consider the law. See Stefanoff, 78 S.W.3d at 501; Schier, 60 S.W.3d at 343; Smith, 874 S.W.2d at 272-73. 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 imminent harm or immediate necessity. See Graham v. State, 566 S.W.2d 941, 952 n. 3 (Tex.Crim.App. 1978); Kenny v. State, No. 14-06-00764-CR, 2007 WL 2790373, at *9 (Tex.App.-Houston [14th Dist.] Sept. 27, 2007, pet. ref'd). In this case, appellant denied seeing Matthew holding a gun or opening the gun case or removing the gun from the case. The record does not show that Matthew threatened to use the gun or brandished it in any fashion; rather, the evidence shows that the gun remained in the gun case. Indeed, the undisputed evidence in the record reveals a complete absence of immediate necessity or imminent harm. See Kenny, 2007 WL 2790373, at *10. In viewing the evidence in the light most favorable to appellant, the record evidence does not demonstrate that Matthew's actions of straddling the closed gun case would lead a reasonable person to believe a specific harm was imminent or immediate. See Schier, 60 S.W.3d at 344; see also Kenny, 2007 WL 2790373, at *10 (warranting no instruction on necessity for testimony that harm was "about to" occur "soon" because no imminent harm existed); Fuentes v. State, No. 11-05-00003-CR, 2006 WL 648343, at *2 (Tex.App.-Eastland Mar. 16, 2006, pet. ref'd) (not designated for publication) (warranting no instruction on necessity when assault occurred after a struggle with an intoxicated person, the vehicle was not moving, and keys were not in the ignition because no imminent harm of intoxicated driving existed). Appellant has not proved that his actions were immediately necessary to avoid a specific, imminent harm, as required in the first prong of the necessity defense, to warrant an instruction on this defensive issue. See TEX. PENAL CODE ANN. § 9.22(1); Ford v. State, 112 S.W.3d 788, 793-94 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (involving denial of necessity defense instruction for a fleeing suspect when arresting law enforcement officer had not yet brandished a weapon). Accordingly, the trial court did not abuse its discretion in denying appellant's requested instruction. See Muniz, 851 S.W.2d at 254; Schier, 60 S.W.3d at 344. Therefore, we overrule appellant's sole issue. The trial court's judgment is affirmed.