No. 05-09-00421-CR
Opinion filed June 28, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47
On Appeal from the County Court at Law, Grayson County, Texas, Trial Court Cause No. 2008-1-922.
Before Chief Justice WRIGHT and Justices LANG and MALONEY.
The Honorable Frances Maloney, Retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
Opinion By Justice MALONEY.
The jury found Dennis Gene Wright guilty of driving while intoxicated and assessed 180 days' confinement in the Grayson County Jail and a fine of $1000. The trial court sentenced appellant in accordance with the jury's verdict, suspended the imposition of sentence, placed appellant on community supervision for twenty-four months, and ordered six days confinement in the Grayson County Jail as a condition of community supervision. In one point of error, appellant complains the trial court erred in refusing to submit his requested instruction on the affirmative defense of necessity. We reverse the trial court's judgment and remand the case to the trial court.
BACKGROUND
Appellant and his wife attended the American Legion Hall to volunteer for "steak night." Appellant drank alcohol while there, but appellant's wife, as the designated driver, did not. Appellant's wife began to feel ill with chest pain and difficulty breathing and they left with the wife driving. Along the way, her chest pain became severe and she was unable to drive. Appellant's wife pulled over and passed out. Appellant moved his wife to the passenger seat, turned on his emergency flashers, and drove toward the closest fire department/EMS station. On the way, he had an accident. The officers dispatched to investigate the accident arrested appellant for driving while intoxicated. NECESSITY
In one point of error, appellant argues the trial court erred in not submitting a jury instruction on justification because of necessity. He maintains that because the State and he entered into an oral and written stipulation wherein he admitted the "essential elements of the alleged offense," he was entitled to the charge. Additionally, appellant argues the evidence showed that (1) appellant's wife thought she was having a major heart attack and could hardly breathe and (2) both appellant and his wife thought she needed immediate medical attention. The State responds that appellant did not show that he reasonably believed that his conduct was immediately necessary to avoid imminent harm. Specifically, the State argues that when his wife became ill, they were in a bar with available telephone service and many people who could have taken appellant's wife for help. 1. Standard of Review
We review evidence offered in support of a defensive issue in the light most favorable to the defense. See Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991). A defense raised by the evidence entitles a defendant to a jury instruction on that defense. Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007). When reviewing jury charge error, we first determine if error actually exists in the jury charge. Sakil v. State, 287 S.W.3d 23, 25 (Tex. Crim. App. 2009). If we conclude the charge was erroneous, we consider whether any harm exists sufficient to require reversal. See Almanza v. State, 686 S.W.2d 157, 171-74 (Tex. Crim. App. 1985) (op. on reh'g). If the defendant objected to the error at trial, we must reverse if there is some harm to the defendant from the error. Sakil, 287 S.W.3d at 25-26; Almanza, 686 S.W.2d at 171. In assessing actual harm, we examine the harm "in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Almanza, 686 S.W.2d at 171. If appellant did not preserve error, he must show that egregious error occurred-error so harmful that it denied him a fair and impartial trial. Sakil, 287 S.W.3d. at 26; Almanza, 686 S.W.2d at 171. If appellant requests a special instruction on a defensive issue, he must present the written requested instruction to the trial court or dictate his requested charge to the court reporter in the presence of the trial judge and the State before the charge is read to the jury. Tex. Code Crim. Proc. Ann. Art. 36.15 (Vernon 2006). His request must be specific enough to put the trial court on notice of an error in the charge. Bell v. State, 881 S.W.2d 794, 803-04 (Tex. App.-Houston [14th Dist.] 1994, pet. ref'd). A defense raised by the evidence entitles a defendant to a jury instruction on that defense, even if the evidence is weak or contradicted, or not credible to the trial court, as long as the evidence will support a rational jury finding as to each element of the defense. Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007), cert. denied, 128 S.Ct. 2486 (2008). 2. Applicable Law
Texas law justifies conduct if "the actor reasonably believes the conduct is immediately necessary to avoid imminent harm." Tex. Penal Code Ann. § 9.22(1) (Vernon 2003). Reasonableness is a question of fact and we review reasonableness from the accused's standpoint at the time he acted. Fitzgerald v. State, 782 S.W.2d 876, 885 (Tex. Crim. App. 1990). The defense of necessity embraces the confession and avoidance doctrine. Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010). Additionally, admitting the offense requires that appellant admit both the act and the requisite mental state. Id. To qualify for a jury issue on necessity, appellant must show by a preponderance of the evidence that he committed the offense and he reasonably believed: (1) the conduct [was] 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). An appellant may raise the defense of necessity only if he admits he engaged in the proscribed conduct as alleged in the indictment. See Shaw, 243 S.W.3d at 659. The defense of necessity does not require that appellant produce evidence of unavailable alternative legal courses of conduct although evidence of available alternative legal courses of conduct may be relevant to the reasonableness of an actor's conduct. Pennington v. State, 54 S.W.3d 852, 859 (Tex. App.-Fort Worth 2001, pet. ref'd). To prosecute appellant for DWI, the State must prove that appellant operated a motor vehicle in a public place while intoxicated. Tex. Penal Code Ann. § 49.04 (Vernon 2003). Thus, to admit the "proscribed conduct" and raise necessity as an affirmative defense, appellant must have admitted that he knowingly operated a motor vehicle in a public place while intoxicated. See Id. 3. The Evidence a. Appellant
Appellant testified that he operated a motor vehicle in Grayson County with a blood alcohol level of more than the legal limit of .08. When his wife complained she did not feel well, they left the American Legion Hall. As she drove toward their home, she complained, "I can't breathe" and pulled over to the side of the road and appellant placed her in the passenger's seat. Appellant turned on the hazard lights and headed for the closest facility that could help his wife-the volunteer fire department. Appellant knew they had an ambulance and could take care of her. When questioned on why he turned on his hazard lights, he felt he had "an emergency." Appellant testified that his wife's family had a history of heart disease. He thought his wife had a life-threatening condition, might not make it, and it was immediately necessary "to insure [his wife's safety]." When he decided that she was in imminent harm, he had no other choice but to drive. When he collided with the other vehicle, he "called 911" on his cellular telephone. On cross-examination, appellant testified he believed he had lost the normal use of his mental faculties, not because of the introduction of alcohol, but because of "the anxiety of . . . what was going on with [my wife.]" He testified that he had about five or six beers over five-and-a-half hours. Appellant admitted he thought he was over .08 because he had heard one beer an hour would put you over the limit. Appellant testified he looked before he decided to run the stop sign, but he did not see the other vehicle. b. Rhoda Wright
Appellant's wife, Rhoda, testified that she did not drink any alcohol on the night in question. She had not paid much attention to how much appellant had to drink because she would be the one to drive home. When she began having problems breathing, she suggested they leave. Some time after she began to drive home, she thought she was having a "major heart attack." She pulled over to the side of the road and "pretty much blacked out." The next thing she knew, paramedics were giving her oxygen. Both her mother and father had heart disease and she has high blood pressure. Because of her family's health problems, she thought she was going to die. There was hardly any traffic, no stores, only houses, and lots of trees on the drive they took home that night. No hospitals were in the area, just the fire station. The paramedics transported Wright to the emergency room. The following morning the doctor told her she had a heart condition and her heart valve was opening and closing when it should not be doing so. The doctors wanted her to stay in the hospital and have tests, but she didn't stay because she had no health insurance. On cross-examination, Wright explained that appellant did not seem intoxicated to her. However, he normally did not drive after drinking. She agreed that some of the guests at the American Legion Hall and the bartenders had not been drinking. She remembered vehicles on the road and houses near the road, but that was before she blacked out. When Wright began to feel like she was blacking out and could not breathe, she pulled her vehicle over to the side of the road. After passing out, the next thing she remembered was the paramedics putting an oxygen mask on her while she was still in her seat belt. 4. Application of Law to the Facts
It is uncontested that appellant stipulated and testified that he drove while intoxicated. Both appellant and his wife testified that appellant's wife drove away from the American Legion Hall because he had been drinking. The evidence shows that although appellant's wife suggested they leave because she was having trouble breathing, it was not until they were on their way home that she could not breathe and passed out. Appellant testified that he believed that she "might not make it" and he had no other choice but to drive. The State maintains that appellant had other choices-contacting home owners or others at the American Legion Hall. However, Texas law does not require that appellant refute alternative legal courses of conduct. See Pennington, 54 S.W.3d at 859. At the close of testimony, the trial court held a jury charge conference. The trial court began by requesting argument on whether to submit a necessity instruction to the jury. The trial court announced it had read the cases submitted by the State and asked appellant if he had any case in which the jury charge contained a necessity instruction in a DWI case. Appellant answered no, but justified the lack of authority, arguing if the trial court had included the necessity instruction, any appeal would not have included the issue. After both sides argued their positions, the trial court ruled that the evidence did not raise a necessity defense and requested that appellant dictate his request into the record after argument. After reviewing the record, we cannot agree with the trial court. The testimony of appellant and his wife does, in our opinion, warrant an instruction on the defense of necessity. See Shaw, 243 S.W.3d at 658. Because appellant requested the instruction, argued for its inclusion in the charge, and dictated it into the record at the time designated by the trial court, we conclude appellant preserved error and therefore need show only some harm. See Sakil, 287 S.W.3d at 25-26; Almanza, 686 S.W.2d at 171. In its opening statement, the State expressed its opinion that an issue might arise on whether appellant acted reasonably and if so, were those acts justified. In appellant's opening statement, appellant stated that the facts would show that the law justifies acts if "the actor reasonably believes the conduct is immediately necessary to avoid imminent harm." After both sides closed, the State, in closing argument, directed the jury's attention to "something missing out of the charge that that [they] were told" would be in the charge and it was not "there for a reason." The State went on to explain therefore, everything they heard from the witness stand about breathing or heart attack was now considered bias, prejudice, or sympathy. And they could not consider that "stuff" in deciding. The State's emphasis on the absence of a necessity charge left the jury with no option but to convict appellant. Thus, appellant suffered some harm by the omission of the instruction. See Pennington, 54 S.W.3d at 859. The evidence raised an issue on whether appellant could reasonable believe that driving while intoxicated was necessary. The decision on whether appellant's conduct was reasonable belonged to the fact finder. The trial court abused its discretion in not instructing the jury on "necessity." We resolve appellant's issue in his favor. We reverse the trial court's judgment and remand for further proceedings.