Opinion
No. 10-02-207-CR.
Opinion delivered and filed July 30, 2003. Concurring opinion issued and filed July 30, 2003. DO NOT PUBLISH.
From the 82nd District Court, Falls County, Texas, Trial Court # 7674.
Clyde W. Chandler, Attorney at Law, Rosebud, Texas, for Appellant. Kathryn J. Gilliam, Falls County District Attorney, Marlin, Texas, for Appellee.
Before Chief Justice Davis, Justice Vance, and Justice Gray (Justice Gray concurring)
MEMORANDUM OPINION
Timothy Hargrove was arrested under a felony warrant for delivery of marijuana. He was taken to the police department where officers found crack cocaine in his hand. After interviewing Hargrove, officers attempted to take him to jail. While walking from the front door of the police department to the police car, Hargrove, still handcuffed, broke and ran, but he was quickly apprehended. He was indicted under section 38.06 of the Penal Code: escape from custody while under arrest for a felony. Tex. Pen. Code Ann. § 38.06(a)(1), (c)(1) (Vernon 2003). The indictment alleged that the felony was possession of cocaine. A jury convicted him and assessed punishment at fifteen years in prison. On appeal, Hargrove complains:
The evidence is legally and factually insufficient, because it shows that he was under arrest only for delivery of marijuana, but the indictment and jury charge refer only to possession of cocaine.
The trial court erred by excluding the testimony of two defense witnesses who would have testified in support of a "necessity" defense — he claimed he broke and ran out of fear the officers would harm him.We will affirm the judgment.
Sufficiency of the Evidence
Hargrove argues that the State did not prove he was arrested for possession of cocaine as alleged in the indictment and required by the jury charge. Proof of this element came primarily from Officer Honeycutt, one of the officers who served the warrant. He testified on direct examination that, after they arrived at the police station, he found crack cocaine in a plastic baggie in Hargrove's hand. "What did you do after discovering that?" "I placed Mr. Hargrove under arrest for the possession of crack cocaine." Later in his direct testimony: "And you had placed him under arrest for the possession of a controlled substance?" "At the police department when I found it." On cross-examination, this exchange occurred: "How did you go about placing him under arrest for the cocaine?" "I told him he was going to be charged with possession of crack cocaine. He would have an additional charge of crack cocaine added to the charge." Honeycutt also testified that later, when Hargrove was taken to jail, he was charged with "[d]elivery of marijuana, felony delivery of marijuana, which we were originally over at the motel for, possession of a controlled substance, and felony escape." Honeycutt said that, at the jail, he filled out an affidavit for a warrantless arrest for possession of cocaine. "That is procedure to do it at the jail." Hargrove, however, relies on what Officer Trussell said on a tape. After Honeycutt found the cocaine, and allegedly arrested Hargrove for possession of it, a tape-recorded interview of Hargrove was conducted, still at the police department. At the beginning of the tape, which was played to the jury, Trussell said: "It is 11:20 p.m. — I am Brian Trussell with the Rosebud Police Department. Tim, before we go any further, you are under arrest for possession — correction, delivery of marijuana, a State Jail felony. Also, when you came in here you were found to have on your person a controlled substance, believed to be crack cocaine in your right hand by Officer Honeycutt." Trussell also testified at trial. He said that he witnessed Hargrove find the cocaine. In addition, he said that after the tape was turned off, Hargrove and the officers had a discussion about whether the cocaine-possession charge could be dealt with by Hargrove becoming an undercover informant. Officer Anastasio testified about the discussion regarding Hargrove becoming an informant. "Mr. Hargrove requested that I speak with the District Attorney's office . . . for some type of deal on his charges. I don't believe we discussed not filing the cocaine charge on him. He was filed — he was told he was filed on possession of crack cocaine that was found on him, and that he was going to jail that night." Hargrove testified that Honeycutt planted the cocaine in his hand. He said he never thought he was under arrest for the cocaine charge, only for the marijuana charge. He confirmed the conversation with the officers about working out a way to deal with the cocaine charge. He also said that on the way out of the police department, Trussell said to him: "[Y]ou're a real a — — hole. . . . [W]e're going to take you for a hell of a ride." He thought the officers "had it in for me," and he was frightened about what they might do to harm him.Legal Sufficiency
In reviewing a challenge to the legal sufficiency of the evidence, we do not weigh favorable and non-favorable evidence. Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000) (citing Cardenas v. State, 30 S.W.3d 384 (Tex.Crim.App. 2000)). Rather, we view all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Burden v. State, 55 S.W.3d 608, 612 (Tex.Crim.App. 2001); Lane v. State, 933 S.W.2d 504, 507 (Tex.Crim.App. 1996) (citing due process standard from Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We consider both direct and circumstantial evidence as well as evidence improperly admitted. Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App. 1993); Logan v. State, 48 S.W.3d 296, 299 (Tex.App.-Texarkana 2001), aff'd, 89 S.W.3d 619 (Tex.Crim.App. 2002). The judgment may not be reversed unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846-47 (Tex.Crim.App. 1991) (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988)); In re A.C., 48 S.W.3d 899, 903 (Tex.App.-Fort Worth 2001, pet. denied). Reviewing the testimonies of Honeycutt, Trussel, Anastasio, and Hargrove in the light most favorable to the verdict, we find that a rational jury could have found beyond a reasonable doubt that Honeycutt arrested Hargrove at the police department for possession of cocaine. Burden, 55 S.W.3d at 612. The finding was not irrational or unsupported by proof beyond a reasonable doubt. Matson, 819 S.W.2d at 846-47.Factual Sufficiency
In reviewing a challenge to the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). We must view all the evidence without the prism of the "in the light most favorable to the prosecution" construct. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Zuliani v. State, (Tex.Crim.App. Feb. 2, 2003); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex.Crim.App. 2001). We must also remain cognizant of the factfinder's role and unique position — one that the reviewing court is unable to occupy. Johnson, 23 S.W.3d at 9. The jury determines the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman, 66 S.W.3d at 287. A decision is not manifestly unjust as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). Honeycutt testified in response to several questions that he arrested Hargrove for possession of cocaine. Hargrove said he believed he was under arrest only for the marijuana charge, but he was never asked if Honeycutt told him he was being arrested for the cocaine charge. And although Trussell began the tape referring only to the arrest for the marijuana charge, the significance of that omission is reduced by his testimony that there was a discussion about dealing with the cocaine charge by Hargrove becoming an informant. Finally, Anastasio testified that Hargrove "was told he was filed on possession of crack cocaine that was found on him, and that he was going to jail that night." Considering all the evidence, and deferring to the jury for credibility determinations, we do not find that the evidence "demonstrates that the proof of [the finding] is so obviously weak as to undermine confidence in the jury's determination, or the proof of [the finding], although adequate if taken alone, is greatly outweighed by contrary proof." Johnson, 23 S.W.3d at 11.Conclusion
The evidence is legally and factually sufficient to support a finding that Honeycutt arrested Hargrove for possession of cocaine, and that the arrest occurred before the escape. We overrule the sufficiency-of-the-evidence issues.Necessity Defense
Hargrove proffered two employees from the county jail from whom he wanted to adduce testimony that, while being held at the jail, he had been allowed outside the locked premises, unshackled and sometimes unsupervised, to perform work duty, and he had not tried to escape. He argued that the testimonies would (1) support his "necessity" defense by showing that his "intent" in escaping from the officers was only to avoid being harmed by them, and (2) rebut testimony of his "intent" to escape to avoid incarceration, which was elicited from him by the State during his testimony — unobjected to — about three prior incidents in which he ran from police. "Necessity" is a justification for otherwise criminal conduct. 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.Tex. Pen. Code Ann. § 9.22 (Vernon 2002). The trial court did not allow the witnesses to testify. The court did, however, allow the defense, and there were appropriate instructions in the jury charge. We review a trial court's decision to admit or exclude evidence for whether there is an abuse of discretion, i.e., for whether the trial judge's decision lies "within the zone of reasonable disagreement." Rachal v. State, 917 S.W.2d 799, 816 (Tex.Crim.App. 1996); Rankin v. State, 974 S.W.2d 707, 718 (Tex.Crim.App. 1996) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (opinion on reh'g)). Hargrove first argues that his "character for trustworthiness" was at issue, and he was entitled to present evidence of it. Tex.R.Evid. 404(a)(1)(A). Without deciding whether "character for trustworthiness" was at issue, we note that he agrees that character evidence must be in the form of reputation or opinion evidence, which was not the form of the testimony of his two witnesses. Tex.R.Evid. 405(a); Brief of Appellant p. 23. Therefore, the trial court did not abuse its discretion in excluding the witnesses for this reason. Hargrove next argues that the witnesses would have supported his "necessity" defense by showing that his "intent" in escaping was only to avoid being harmed by the officers. Tex.R.Evid. 404(b); Tate v. State, 981 S.W.2d 189, 193 (Tex.Crim.App. 1998) (the defendant, not solely the State, may rely on Rule 404(b)); Gonzales v. State, 2 S.W.3d 600, 605 (Tex.App.-Texarkana 1999, pet. ref'd) (defendant may rely on 404(b) to prove his intent to self-defend). He says that, had his "intent" in escaping from the officers been to avoid incarceration, rather than to avoid being harmed by them, he would have also tried to escape at the jail when he had the opportunity. We agree with Hargrove that there is a logical relationship between his failure to try and escape from the jail and the "intent" aspect of his "necessity" defense. Thus the trial court abused its discretion in not allowing the testimonies on this basis. Finally, Hargrove argues that the witnesses would have provided evidence of his "intent" to avoid immediate harm which would have rebutted the State's evidence of three previous incidents in which he ran from police. Tex.R.Evid. 404(b); Tate, 981 S.W.2d at 193; cf. Webb v. State, 36 S.W.3d 164, 180 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (State may rebut defensive theory with Rule 404(b) evidence) (citing Ransom v. State, 920 S.W.2d 288, 301 (Tex.Crim.App. 1996) (opinion on reh'g)). These three incidents created an inference that enhanced the State's allegation that Hargrove escaped not from fear of harm but from fear of incarceration. We agree with Hargrove that the inference to be drawn from the witnesses' testimonies about his "intent" tends to rebut the inference drawn from the State's adducing the prior incidents of flight. Thus the trial court also abused its discretion in not allowing the testimonies on this basis. Having found error, we must review for "harm." We will disregard any error that does not affect a substantial right of the complaining party. Tex.R.App.P. 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). We do not reverse if, "after examining the record as [a] whole, [we have] fair assurance that the error did not influence the jury, or had but a slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998); see also Schutz v. State, 63 S.W.3d 442, 444 (Tex.Crim.App. 2001). The reviewing court should consider everything in the record, including all the evidence admitted, the closing arguments, and voir dire. Motilla v. State, 78 S.W.3d 352, 358 (Tex.Crim.App. 2002). The strength of the evidence of guilt, especially if it is overwhelming, is a factor to be considered. Id. at 357-58. The testimonies of the witnesses who were excluded would have supported Hargrove's "necessity" defense, because the defense depended on convincing the jury that he escaped not to avoid incarceration but to avoid being harmed by the officers. The testimonies, however, would not have been dispositive of that inquiry. Also part of the inquiry is that, on three previous occasions, Hargrove ran from police, and that he was, at the time of the escape, under arrest for two felonies. In addition, his credibility as a witness was at issue, and that is a matter for the jury which heard him testify that he had been to prison previously after being convicted in 2000 of possession of cocaine. Furthermore, Hargrove was not prevented from raising his "necessity" defense which was included in the jury charge and which he argued extensively in closing argument. Finally, there was ample evidence that he committed the offense. Therefore, we conclude "after examining the record as [a] whole, [that we have] fair assurance that the error did not influence the jury, or had but a slight effect." Johnson, 967 S.W.2d at 417. We overrule these issues.
Conclusion
Having overruled Hargrove's issues, we affirm the judgment. AffirmedCONCURRING OPINION
I concur with the result reached by the majority. I write separately because I question whether the trial court erred in not allowing two defense witnesses to testify. Hargrove contends that these witnesses were important to establish his "necessity defense." Although the trial court gave him an instruction on necessity, Hargrove is not entitled to it. To raise necessity, a defendant must first admit violating the statute under which he is charged and then offer necessity as a justification for that offense. Young v. State, 991 S.W.2d 835, 839 (Tex.Crim.App. 1999); East v. State, 76 S.W.3d 736, 738 (Tex.App.-Waco 2002, no pet.); Vrba v. State, 69 S.W.3d 713, 724 (Tex.App.-Waco 2002, no pet.). Hargrove denied that he possessed cocaine. He stated that an officer placed the cocaine in his cuffed hand but also that the officer retained physical possession of it. More importantly, Hargrove denied that he was arrested for possessing the cocaine. I am mindful that a defendant may not necessarily be required to admit to all elements of an offense, but I question the continued viability of this proposition in light of Young. Just as the defendant in Young, because he denied committing attempted murder, was not entitled to an instruction on necessity, Hargrove was not entitled to an instruction on necessity. Because Hargrove was not entitled to an instruction on the justification of necessity, I cannot agree that the trial court erred in not allowing him to admit evidence tangentially, at best, related to that defense. With these comments, I concur only in the result reached by the majority.
See Thomas v. State, 678 S.W.2d 82, 85 (Tex.Crim.App. 1984).