No. 04-02-00052-CR.
Delivered and Filed April 30, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
From the 379th Judicial District Court, Bexar County, Texas, Trial Court No. 2000CR4552.
Before ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE and PAUL W. GREEN, Justices.
Opinion By ALMA L. LÓPEZ, Chief Justice
Richard Wilson ("Wilson") was indicted for the offense of attempted capital murder of a police officer. A jury found Wilson guilty, and he was sentenced to life imprisonment. Wilson asserts five issues on appeal, contending: (1) the trial court erred in failing to grant his motion for directed verdict because the evidence was legally insufficient to sustain his conviction; (2) the evidence was factually insufficient to sustain his conviction; (3) the trial court abused its discretion when it failed to suppress evidence that Wilson had resisted being fingerprinted after his arrest on the basis that the State did not comply with the Rule 404(b) notice requirement and that such evidence was not relevant and prejudicial; (4) the trial court abused its discretion in not allowing Wilson to cross-examine the complainant officer as to information bearing on his state of mind; and (5) the trial court erred in refusing to submit the defense of necessity in the jury charge. We affirm the trial court's judgment.
Background and Procedural History
Because Wilson challenges the sufficiency of the evidence, a recitation of the facts is necessary. In the early morning hours of June 3, 2002, Officer Dale Hancock ("Hancock") made a routine traffic stop. He pulled Wilson over for suspicion of driving while intoxicated. Wilson was giving an acquaintance, Ruth Salinas ("Salinas"), a ride home. Hancock testified that he approached the driver's side of the car and asked Wilson for his license and insurance. Wilson replied that he had left them at home. Noticing that Wilson's eyes were glassy and bloodshot and that the smell of alcohol was on his breath, Hancock asked Wilson to step outside of the car to perform a field sobriety test. Hancock told Wilson to stand at the back driver side of the car so that he could check on the passenger, Salinas. While Hancock was talking to Salinas, he looked up and noticed that Wilson had moved to the back passenger side of the car where Hancock was unable to see him fully. Hancock went over to Wilson and told him to get back out in the middle of the street. When Wilson put his hand behind his back, Hancock told him to get his hand out from behind his back. Wilson complied. Hancock told Wilson that he thought he was intoxicated, so he was going to ask him to perform a field sobriety test. Before Hancock could perform the test, he went back to his patrol car to turn off the flashing lights. Hancock looked over his shoulder to make sure that Wilson had stayed in the same spot; however, when he looked back the second time, Wilson had again moved to the back passenger side of the car and again had his hand behind his back. Hancock turned around and walked toward Wilson, telling him to get his hand out from behind his back and to move back out into the street. As Hancock was telling him this, Wilson started backing away from him with his right hand behind his back and looking from side to side. Hancock continued towards Wilson and repeatedly told him to get his hand out from behind his back. Hancock testified that when Wilson pulled his hand out, he pointed a chrome gun at Hancock and told him he was going to kill him. As Hancock turned around to look for cover, he heard Wilson's gun "click." Hancock testified that he ran towards the driver's side of his patrol car for cover and realized that Wilson's gun had failed to fire. He then ran to the back passenger side of his patrol car. As he peered from behind his patrol car, Hancock saw Wilson "messing with his gun" as if he were trying to "put another round in his gun." Hancock repeatedly yelled at Wilson to drop his gun. Wilson raised the gun again and fired at Hancock. Hancock testified that he heard a shot fired, but he did not see muzzle fire. Hancock told him to drop the gun. Wilson started backing up, and Hancock shot at him several times. After Hancock began shooting, Wilson took off running down a fence line. Hancock ran around to the driver side of Wilson's car to check on Salinas, and told her to get down. Two other eyewitnesses corroborated Hancock's testimony. Salinas testified that at some point after Hancock asked Wilson to get out of the car, she saw Wilson come to the front passenger side of the car, pull the gun out, and fire at the officer. After Wilson shot at the officer, Wilson ran off towards a field. Salinas had drank two 24 ounce bottles of beer that night prior to the incident. On cross-examination, Salinas stated that she heard Wilson fire three or four shots at Hancock. She also said that Hancock did not shoot at Wilson until Wilson ran. Another eyewitness, Eleazar Guadalupe Gamez ("Gamez") testified that he saw Wilson pull out his gun first and point it at Hancock. Gamez, who had been drinking with friends since 4:00 p.m. in the afternoon, was outside when he saw that a police officer had stopped a car. He saw Wilson step out of the car. When the police officer started to walk back to his car, Gamez saw Wilson take out a gun and shoot at the police officer once or twice. Gamez stated that Wilson was shooting at Hancock from the front passenger side of his vehicle, and Hancock was hiding behind his car. He said that they were exchanging gunfire, and he could see the flash of gunfire from Wilson's gun, but not from the officer's gun. Hancock testified that after Wilson took off, he went back to his patrol car to retrieve his flashlight and began chasing Wilson. Hancock testified that he did not shoot at Wilson while he was chasing him, and he did not recall Wilson shooting at him. Hancock lost sight of Wilson when he reached an "L" shaped corner of the fence. At this point, Hancock turned off his flashlight, turned down his radio, and slowly approached the corner. Shining his flashlight around the corner, Hancock saw Wilson limping before he disappeared between the fence and an abandoned house. Hancock moved to a position where he could see Wilson's feet protruding out from behind the house. Wilson pointed his gun again at Hancock. Hancock yelled at him to drop his gun and then fired off two more rounds in Wilson's direction. Another police officer, Officer Humble ("Humble"), came to assist Hancock. Hancock testified that when he fired the last shot, he thought he finally hit Wilson because Wilson threw the gun out in front of him. Hancock and Humble formed a V and walked towards Wilson. As Hancock continued shining his flashlight on Wilson, Humble and another police officer, Officer Doyle ("Doyle"), handcuffed Wilson. Neither Doyle nor Humble fired their weapons that night. Humble threw Wilson's .380 semiautomatic six to ten feet away so that Wilson would not be able to grab it while they handcuffed him. Humble noticed that the gun was double fed, meaning it had two live rounds simultaneously jammed in the barrel. Several eyewitnesses testified that they saw Wilson running backward and shooting at Hancock. Gilbert Cuellar, a transport driver for Mrs. Baird's Bakery, was working the night shift the night of the incident. As he was waiting for his truck to be loaded, he heard two to three shots coming from the direction of a parking lot across the street and turned around to see who was shooting. He was approximately half a block away from the incident. He testified that he saw a black man running backward and that the man shot two to three times in the direction of a police officer who was chasing him. Cuellar saw the man run backward, pause a little, and then fire. He saw fire coming out of Wilson's gun and heard a gunshot. He then saw Wilson turn the corner and hide behind an abandoned house. When Wilson was behind the house, he saw Wilson shoot at the police officer twice and gestured for Hancock to "come on." When Wilson pointed the gun at the police officer again, Hancock shot at Wilson. Another Mrs. Baird's truck driver, Richard Ellis ("Ellis"), testified that he was standing next to Cuellar when he heard pops that sounded like fireworks. Ellis testified that when he turned around, he heard "pops" from straight ahead. He saw a man having a hard time running and saw him stop and shoot in the direction from where he was coming. He could not tell the race of the running man, but he saw sparks coming out of the gun that the man was holding. Ellis also testified that he saw the man throw something over the fence. After the man approached the abandoned house, Ellis then went inside the building. A third eyewitness, Juan Antonio Salazar ("Salazar"), a mechanic for Mrs. Baird was outside the bakery when he heard a sound that sounded like a car "backfiring" two or three times. He rose from the picnic table where he was sitting and looked across to the St. Phillip's College parking lot, where he saw a man running though the grass. Salazar saw the man stop and shoot once in the direction of where he was running from. Salazar could not see the gun but saw fire coming out of the weapon. After Salazar saw the man shoot, he saw the man stop and turn around. Salazar stated that "it looked like he might have tossed something over the fence." Salazar saw the man go around the "shack" and the police officer shooting in the direction of the man. At trial, the State called several witnesses regarding the evidence. Jaime Becker ("Becker") was the firearms examiner and responsible for conducting tests on the .380 semiautomatic and Hancock's .40 Glock. Becker compared the ammunition retrieved from the crime scene with test rounds fired in a laboratory. Becker testified that three of the four unfired cartridges from the .380 semiautomatic had been cycled through the gun at some point in time, but that the gun itself had not been fired. Becker also performed a residue test on the .380 semiautomatic, but he found no trace of gun powder residue in the barrel. Becker stated that it was possible that a gun could have been fired even if no gun powder residue was found in the barrel if the barrel had been cleaned or something had been pushed down the barrel to clean it. James Garcia ("Garcia"), a forensic scientist, testified that he performed a gunpowder residue test on both Hancock and Wilson. He explained that a particle of gun powder residue generally consists of three particles — lead, barium, and antimony. He stated, however, that residue from a .380 semiautomatic contains only lead and barium. Garcia further explained that a particle of lead, barium, and antimony, or a particle of just lead and barium can be transferred secondarily; however, each particle contains all elements, and one element cannot be separated from the others. Garcia stated that a person who shoots a gun will not always have gunshot residue on his hands because of various environmental factors or because the residue is so small that it gets consumed completely. After performing the residue test, Garcia found a particle with lead, barium, and antimony on Hancock's right hand. He found lead and barium with no antimony on Wilson's left hand, which is consistent with firing .22 caliber weapons. Garcia's final conclusion was that Wilson, "possibly fired a firearm, handled a discharged firearm, or was in close proximity to a discharged firearm." Sufficiency of the Evidence
In his first and second issues, Wilson contends that the trial court erred in failing to grant Wilson's motion for directed verdict because the evidence was legally and factually insufficient to sustain his conviction for attempted capital murder. We treat any complaint regarding a trial court's failure to grant a motion for directed verdict as a legal sufficiency of the evidence challenge. Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996). In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). All of the evidence in the record is considered, both direct and circumstantial, whether admissible or inadmissible. Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App. 1993). In our factual sufficiency review, we must consider all of the evidence in a neutral light to determine whether the judgment is "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). A factual sufficiency review must be appropriately deferential, and the appellate court should not substitute its own judgment for that of the jury or substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). The reviewing court will consider all evidence equally, including "testimony of the defense witnesses and the existence of alternative hypotheses." Stone v. State, 823 S.W.2d 375, 381 (Tex.App.-Austin, 1992, pet ref'd). The Texas Penal Code provides that a person commits the offense of capital murder of a peace officer if the person intentionally or knowingly causes the death of a peace officer who is acting in the lawful discharge of an official duty and who the person knows is a peace officer. Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03 (Vernon 2003). A person is guilty of an attempt to commit a crime "if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." Id. § 15.01(a). Wilson argues that when the evidence is reviewed in the light of the contradictions of the State's witnesses, the forensic evidence, and the State's theory of a second weapon, there was no more than a modicum of evidence to support the complainant officer's testimony, which was contradicted by the firearm examiner's evidence. The jury serves as the exclusive judge of the credibility of witnesses and of the weight to be given their testimony and can draw reasonable inferences and make deductions from the evidence. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim. App. 1998); Griffin v. State, 908 S.W.2d 624, 626 (Tex.App.-Beaumont 1995, no pet.). A jury may reject any witness's testimony including an expert. Furthermore, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Mosley, 983 S.W.2d at 254. In this case, the jury could have chosen to believe Hancock, Salinas and Guadalupe's testimony that Wilson pulled out his gun first and shot at Hancock. It was also within the province of the jury to believe the State's theory that Wilson had a second gun and shot at Hancock while he was behind his patrol car and while he was chasing Wilson. Cuellar, Ellis, and Salazar saw Wilson running backward and shooting in the direction of Hancock. Cuellar, Ellis, and Salazar also saw fire come out of the gun that Wilson was using. Ellis and Salazar testified they saw Wilson throw something over a fence during the police chase. Wilson also had barium and lead on his left hand, which was consistent with firing a .22 weapon. Having reviewed the entire record, we conclude that the evidence is legally and factually sufficient to support Wilson's conviction for attempted capital murder of a peace officer. We overrule Wilson's first and second issues. In his third issue, Wilson contends the trial court abused its discretion when it failed to suppress evidence that Wilson clenched his fists when Officer Tiffany Dillon ("Dillon") attempted to fingerprint him after his arrest. Wilson asserts that the evidence should have been excluded because the State failed to provide proper notice of its intent to introduce such evidence pursuant to Texas Rule of Civil Procedure 404(b). Wilson further contends that even if the evidence was not within the scope of Rule 404(b), such evidence was inadmissible under Rules 401 and 403 because it was not relevant, more prejudicial than probative, and violated the Fourteenth Amendment of the United States Constitution and Article I, Section 10 of the Texas Constitution. The State responds that it was not required to give notice of its intent to introduce such evidence pursuant to Rule 404(b) because it was "same transaction contextual evidence." Even if the evidence was subject to the 404(b) notice requirement, the State further responds that it gave Wilson sufficient notice of its intent to introduce the evidence and that the evidence was both relevant and more probative than prejudicial. Finally, the State argues that even if the trial court committed error by improperly admitting the evidence, such error was harmless. Texas Rule of Evidence 404(b) provides that extraneous acts may be admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," provided that upon a defendant's timely request, the State gives reasonable notice of its intent to introduce such evidence other than that arising in the same transaction. Tex. R. Evid. 404(b). For an extraneous offense to be admitted at trial, it must be relevant to a material issue in the case other than the defendant's character. Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App. 1990). All relevant evidence, that is evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable," is admissible. Tex. R. Evid. 401, 402. We review the trial court's ruling to admit or exclude evidence under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex.Crim.App. 2001), Aguilera v. State, 75 S.W.3d 60, 64 (Tex.App.-San Antonio, 2002, pet. ref'd). "The trial court abuses its discretion when it acts without reference to any guiding rules and principles, or acts in a manner that is arbitrary or capricious." Lam v. State, 25 S.W.3d 233, 236-37 (Tex.App.-San Antonio 2000, no pet.) (citing Montgomery, 810 S.W.2d at 392). We will uphold the trial court's decision if it is within "the zone of reasonable disagreement." Salazar, 38 S.W.3d at 153-54. Before we address the issue of whether the State gave proper notice to Wilson that it intended to introduce evidence of Wilson resisting attempts to fingerprint him at the hospital, we must determine whether such evidence falls under the scope of 404(b). Relying on Garza v. State, the State argues that it was not required to give notice of its intent to introduce the evidence of Wilson's resistance to being fingerprinted under 404(b) because it was "same transaction contextual evidence." 2 S.W.3d 331, 335 (Tex.App.-San Antonio 1999, pet. ref'd). "Same transaction contextual evidence" is a recognized exception to Rule 404(b) and refers to other offenses connected with the primary offense and is admissible when the evidence is necessary for the state to logically present evidence of the charged offense. Garza v. State, 2 S.W.3d 331, 335 (Tex.App.-San Antonio 1999, pet ref'd.) (citing Lockhart v. State, 847 S.W.2d 568, 570 (Tex.Crim.App. 1992)). The reason for admitting such evidence is "simply because in narrating the one it is impracticable to avoid describing the other, and not because the other has any evidential purpose." Mayes v. State, 816 S.W.2d 79, 86 n. 4 (Tex.Crim.App. 1991); Garza, 2 S.W.3d at 335. In the instant case, Wilson's resistance to being fingerprinted at the hospital while receiving treatment for his injuries is not an act that is significantly blended or interwoven with the facts of the charge of attempted capital murder. This evidence is not so connected to Wilson's primary offense that it was necessary for the State to present it along with other evidence of the charged offense. In presenting the evidence of attempted capital murder, it was possible for the State to avoid describing Wilson's act of resistance in the hospital. Therefore, we hold that Wilson's resistance to being fingerprinted at the hospital after he was arrested is not same transaction contextual evidence. Accordingly, we must next address whether the evidence was relevant to show Wilson's consciousness of guilt. The State next argues that the evidence was relevant to show Wilson's "consciousness of guilt." "[C]riminal acts that are designed to reduce the likelihood of prosecution, conviction, or incarceration for the offense on trial are admissible under Rule 404(b) as showing `consciousness of guilt.'" Ransom v. State, 920 S.W.2d 288, 299 (Tex.Crim.App. 1994). "Consciousness of guilt" evidence includes an accused who presents false identification to a police officer. See id.; Felder v. State, 848 S.W.2d 85, 98 (Tex.Crim.App. 1992). Such an act is not admissible to prove propensity, but is admissible under 404(b) to prove the accused's knowledge and an awareness that he needed to conceal his identity from law enforcement officials. See Felder, 848 S.W.2d at 98. Consequently, consciousness of guilt evidence is subject to Rule 404(b)'s notice requirement. Tex. R. Evid. 404(b); See Ransom, 920 S.W.2d at 299. In this case, the evidence that Wilson resisted Dillon's attempt to fingerprint him was not admitted to prove he acted in conformity with the crime. Instead, the evidence tended to show that Wilson wanted to conceal his identity from the police; therefore, it was relevant to show Wilson's "consciousness of guilt." See Ransom, 920 S.W.2d at 299; Felder, 848 S.W.2d at 98. Although we hold that the evidence was relevant to show Wilson's consciousness of guilt, the State still was required to provide notice under rule 404(b). A State's open file policy is not enough to satisfy Rule 404(b)'s notice requirement. See Buchanan, 911 S.W.2d at 15 (holding that the mere presence of an offense report indicating the State's awareness of the existence of such evidence does not indicate an "intent to introduce" such evidence in its case-in-chief). The record shows that the State did not include Wilson's act in its written response to his 404(b) request, but merely provided Wilson with an open file that included the medical records detailing Wilson's extraneous act. The State's open file policy did not give Wilson sufficient notice that it intended to introduce the extraneous act in its case-in-chief. See id. Because the State failed to provide proper notice, the trial court erred in admitting Wilson's act of resisting being fingerprinted; however, we must further decide whether such error was harmful. Rule 44.2(b) provides that non-constitutional errors in criminal cases that do not affect substantial rights are to be disregarded on appeal. Tex. R. App. Proc. 44.2(b). "A substantial right is affected when the error ha[s] 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); Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). "A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has 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). The presence of overwhelming evidence supporting the finding in question can be a factor in the evaluation of harmless error under Rule 44.2(b). See Motilla v. State, 78 S.W.3d 352, 357 (Tex.Crim. App. 2002). Although the evidence of Wilson's resistance to being fingerprinted was improperly admitted, our examination of the entire record leads us to conclude that the error was not harmful. See King, 953 S.W.2d at 271. As discussed above, there was substantial evidence of Wilson's attempt to kill Officer Hancock. Several eyewitnesses, including the complainant officer, saw Wilson pull out a gun and shoot at Officer Hancock. He also had a particle of lead and barium on his left hand that was consistent with handling a .22 caliber weapon. Having reviewed the entire record, we conclude that the admission of Wilson's resistance to being fingerprinted did not have a substantial and injurious effect or influence in determining the jury's verdict. We have fair assurance that the error did not influence the jury or had but a slight effect. Therefore, we hold that the failure to provide the notice in view of the totality of the evidence presented with regard to Wilson's identity was harmless. See Tex. R. App. P. 44.2(b); Motilla v. State, 78 S.W.3d at 357. We must next determine whether the admission of Wilson's act of resistance into evidence was more prejudicial than probative so as to violate Texas Rule of Evidence 403. Rule 403 states that otherwise relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. "Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial." Montgomery, 810 S.W.2d at 389. Unfair prejudice exists when a jury would be more likely to draw an impermissible character conformity inference than the permissible inference for which the evidence is relevant, or if it otherwise distracts the jury from "the specifically charged offense" and invites them to convict on a moral or emotional basis rather than as a reasoned response to the relevant evidence. Id. at 395. As stated above, we review the trial court's decision to admit or exclude evidence under an abuse of discretion standard and affirm the trial court unless it was within the "zone of reasonable disagreement." Id. at 391. In the instant case, the evidence that Wilson resisted being fingerprinted at the hospital was relevant and probative of his consciousness of guilt. The evidence did not require a significant amount of time to present, and the court's determination that the prejudicial effect of the evidence did not substantially outweigh its probative value was within the "zone of reasonable disagreement." See id.; Tex. R. Evid. 403. We overrule Wilson's fourth issue. Cross-Examination In his fourth issue, Wilson contends the trial court "abused its discretion in ruling that the defense could not cross-examine the complainant officer as to information bearing on his state of mind, denying the defense the right to present a defense and the right to effective cross-examination in violation of the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Section 10 of the Constitution." The State responds that Wilson waived these issues at trial by failing to object on these grounds. The State further responds that the trial court did not abuse its discretion in excluding the evidence because the evidence was not relevant. Even if such evidence was relevant, the State contends any error was harmless. At trial, Wilson objected to the exclusion of evidence that Hancock had been involved in prior incidents in which he had been injured by suspects on the basis that it was relevant to show his propensity for drawing a weapon. Reviewing the entire record, however, Wilson did not specifically object that the evidence was relevant to his state of mind. Wilson also did not at any time object on the basis that such exclusion violated his right to cross-examination or his right to present a defense. As stated above, to the extent that Wilson brings this issue on the basis of these grounds for the first time on appeal, he has waived his complaint. Tex. R. App. P. 33.1(a)(1); see Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990). Because Wilson properly preserved the issue on the basis of relevancy, we will address whether the trial court abused its discretion in excluding the evidence on this ground. Relevant evidence is that evidence "having any tendency to make the existence of any fact or consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. We review the trial court's ruling to admit or exclude evidence under an abuse of discretion standard. Salazar, 38 S.W.3d at 153-54; Aguilera, 75 S.W.3d at 64. Wilson asserts that he was entitled to cross-examine Hancock to show his possible propensity to pull his weapon more quickly than he would have had it not been for these prior incidents. As stated above, "[e]vidence of other crimes, wrongs or acts [that] is not admissible to prove the character of a person in order to show action in conformity therewith," unless it is introduced to prove motive, intent, absence of mistake, identity, common plan or scheme. Tex. R. Evid. 404(b). Because Wilson does not establish how the facts surrounding Hancock's prior injuries went to any other issue or fact other than Hancock's propensity to draw a weapon, we hold that the trial court did not abuse its discretion when it refused to admit such evidence. We overrule Wilson's fourth issue. Defense of Necessity
In his fifth issue, Wilson contends that the trial court erred in refusing to submit the defense of necessity in the jury charge. Upon a timely request, "an accused has the right to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the defense." Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996); Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App. 1991). When evidence from any source raises a defensive issue, and the defendant properly requests a jury charge on that issue, the trial court must submit the issue to the jury. See Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App. 1993); McGarity v. State, 5 S.W.3d 223, 226 (Tex.App.-San Antonio 1999, no pet.). In fact, the trial court must grant the defendant an instruction regardless of whether the issue is raised by the defendant's testimony alone or otherwise. McGarity, 5 S.W.3d at 226. Thus, if the issue is raised by any party, refusal to submit the requested instruction is an abuse of discretion. Id. When the evidence fails to raise a defensive issue, however, the trial court commits no error in refusing a requested instruction. Id. at 227. To determine whether the issue of necessity was raised, we must view the evidence in light of the statutory provision. The Texas Penal Code provides that the defense of necessity is available for criminal conduct only if: (1) the defendant reasonably believes his conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweighs the harm sought to be prevented by the law prescribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise appear. Tex. Pen. Code Ann. § 9.22 (Vernon 2003); see McGarity, 5 S.W.3d at 227. For the evidence to support submission of the necessity defense to the jury, the defendant must admit to the offense. McGarity, 5 S.W.3d at 227. The necessity instruction is not required unless there was evidence from the accused admitting the offense, and henceforth claiming justification for having committed the offense because of other facts. Id.; Maldonado v. State, 902 S.W.2d 708, 712 (Tex.App.-El Paso 1995, no pet.). Wilson relies on Darty v. State for the proposition that a defendant is entitled to an instruction of necessity even if he pleaded not guilty to the charge. 994 S.W.2d 215, 219 (Tex.App.-San Antonio 1999, pet. ref'd). Darty, however, is distinguishable from the instant case because the defendant in that case testified at trial and admitted he committed the offense even though he initially pleaded not guilty. Darty, 994 S.W.2d at 219. In this case, Wilson pleaded not guilty and did not testify at any point or otherwise admit that he committed the offense. Because Wilson did not otherwise admit to the offense at trial, he cannot claim justification for having committed the offense on the theory that Hancock pulled out his gun first. Therefore, we hold that Wilson was not entitled to an instruction of necessity. We overrule Wilson's fifth issue. Conclusion
The trial court's judgment is affirmed.