NO CR IN THE COURT OF APPEALS 5TH JUDICIAL DISTRICT DALLAS, TEXAS. DENNIS GENE WRIGHT, Appellant. THE STATE OF TEXAS, Appellee

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1 NO CR IN THE COURT OF APPEALS 5TH JUDICIAL DISTRICT DALLAS, TEXAS DENNIS GENE WRIGHT, Appellant v. THE STATE OF TEXAS, Appellee ON APPEAL IN CAUSE NUMBERS FROM THE COUNTY COURT AT LAW # 1 OF GRAYSON COUNTY, TEXAS APPELLEE'S BRIEF KARLA BAUGH HACKETT ASST. CRIMINAL DISTRICT ATTORNEY BAR NO GRAYSON COUNTY, TEXAS 200 S. CROCKETT SUITE 100 SHERMAN, TEXAS / / (FAX) ATTORNEY FOR THE STATE ORAL ARGUMENT NOT REQUESTED

2 LIST OF PARTIES APPELLANT: DENNIS GENE WRIGHT ATTORNEY FOR THE APPELLANT: ON APPEAL: GARLAND CARDWELL 123 S. TRAVIS ST. BAR NO / FAX 903/ AT TRIAL: QUENTON PELLEY 905 N. TRAVIS ST. 903/ BAR NO ON APPEAL KARLA BAUGH HACKETT ASST. CRIMINAL DISTRICT ATTORNEY BAR NO GRAYSON COUNTY, TEXAS 200 S. CROCKETT SUITE / / (FAX) APPELLEE: THE STATE OF TEXAS ATTORNEY FOR THE STATE: ELECTED OFFICIAL JOSEPH D. BROWN CRIMINAL DISTRICT ATTORNEY BAR NO GRAYSON COUNTY, TEXAS 200 S. CROCKETT SUITE 100 (903) / (FAX) AT TRIAL MATTHEW JOHNSON ASST. CRIMINAL DISTRICT ATTORNEY GRAYSON COUNTY, TEXAS 200 S. CROCKETT SUITE 100 (903) BAR NO STATE=S BRIEF B NO CR B PAGE ii

3 TABLE OF CONTENTS LIST OF PARTIES... ii TABLE OF CONTENTS... iii INDEX OF AUTHORITIES... 2 CASES:... 2 STATUTES:... 2 ISSUES PRESENTED... 3 SUMMARY OF ARGUMENT... 4 ARGUMENT... 4 RESPONSE POINT 1: THE TRIAL COURT DID NOT ERR IN DENYING THE APPELLANT=S REQUEST FOR AN INSTRUCTION ON THE DEFENSE OF NECESSITY... 4 A. DEFENSE OF NECESSITY... 4 B. EVIDENCE OF IMMINENT HARM INSUFFICIENT TO RAISE DEFENSE OF NECESSITY... 6 PRAYER... 7 CERTIFICATE OF SERVICE... 8 STATE=S BRIEF B NO CR B PAGE ii

4 INDEX OF AUTHORITIES CASES: Brown v. State, 955 S.W.2d 276, 279 (Tex.Crim.App.1997)... 5 Graham v. State, 566 S.W.2d 941, 952 n. 3 (Tex.Crim.App.1978)... 6 Johnson v. State, 650 S.W.2d 414, 416 (Tex.Crim.App.1983)... 6 McGarity v. State, 5 S.W.3d 223, 226 (Tex.App.-San Antonio 1999, no pet.)... 5 Sanders v. State, 707 S.W.2d 78, (Tex.Crim.App.1986)... 6 Smith v. State, 874 S.W.2d 269, (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd)... 6 STATUTES: Tex. Pen.Code section 1.07(42)... 6 Tex. Penal Code section STATE=S BRIEF B NO CR B PAGE iii

5 NO CR IN THE COURT OF APPEALS 5TH JUDICIAL DISTRICT DALLAS, TEXAS DENNIS GENE WRIGHT, Appellant v. THE STATE OF TEXAS, Appellee TO THE HONORABLE COURT OF APPEALS: COMES NOW THE STATE OF TEXAS, hereinafter referred to as the State, and submits this brief pursuant to the Texas Rules of Appellate Procedure and would show through her attorney the following: ISSUES PRESENTED RESPONSE POINT 1: THE TRIAL COURT DID NOT ERR IN DENYING THE APPELLANT=S REQUEST FOR AN INSTRUCTION ON THE DEFENSE OF NECESSITY. STATE=S BRIEF B NO CR B PAGE iv

6 SUMMARY OF ARGUMENT In his sole point of error, the appellant alleges that the trial court abused its discretion in refusing to include an instruction on the defense of necessity in the jury charge. The appellant has not shown that he reasonably believed his conduct was immediately necessary to avoid imminent harm. The trial court did not err in denying Wright's request for a necessity instruction in the jury charge. ARGUMENT RESPONSE POINT 1: THE TRIAL COURT DID NOT ERR IN DENYING THE APPELLANT=S REQUEST FOR AN INSTRUCTION ON THE DEFENSE OF NECESSITY. In his sole point of error, the appellant alleges that the trial court abused its discretion in refusing to include an instruction on the defense of necessity in the jury charge. A. DEFENSE OF NECESSITY The trial court must give a jury instruction on every defensive theory raised by the evidence regardless of whether it is strong, feeble, impeached, or contradicted, and even if the trial court is of the opinion that the testimony is not STATE=S BRIEF B NO CR B PAGE v

7 entitled to belief. Brown v. State, 955 S.W.2d 276, 279 (Tex.Crim.App.1997). A charge on a defensive issue is required if the accused presents affirmative evidence that would constitute a defense to the crime charged and a jury charge is properly requested. McGarity v. State, 5 S.W.3d 223, 226 (Tex.App.-San Antonio 1999, no pet.). If a defendant produces evidence raising each element of a requested defensive instruction, he is entitled to the instruction regardless of the source and strength of the evidence. Id. If the issue is raised by any party, refusal to submit the requested instruction is an abuse of discretion. Id. Where the evidence fails to raise a defensive issue, however, the trial court commits no error in refusing such a request. Id. at 227. To determine whether the issue of necessity was raised, we view the evidence in light of the statutory provision. Id. The Texas Penal Code provides that the defense of necessity is available for criminal conduct only if there is evidence which, if believed, would establish: (1) the defendant reasonably believed his conduct was immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweighed 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 section AImminent harm@ means an emergency situation, and it is Aimmediately necessary@ to avoid that harm when a split-second decision is required without time to consider the law. Id. STATE=S BRIEF B NO CR B PAGE vi

8 The first prong of the necessity defense requires affirmative evidence of imminent harm. Johnson v. State, 650 S.W.2d 414, 416 (Tex.Crim.App.1983). A reasonable belief is one that would be held by an ordinary and prudent person in the same circumstances as the actor. See Tex. Pen.Code Ann. '' 1.07(42) (Vernon 1994). In most cases, whether a defendant was prompted to act by a reasonable belief is a question for the trier of fact. See Sanders v. State, 707 S.W.2d 78, (Tex.Crim.App.1986). A defendant's belief that conduct was immediately necessary to avoid imminent harm may be deemed unreasonable as a matter of law, however, if undisputed facts demonstrate a complete absence of evidence of immediate necessity or imminent harm. See Graham v. State, 566 S.W.2d 941, 952 n. 3 (Tex.Crim.App.1978). AImminent@ means something that is impending, not pending; something that is on the point of happening, not about to happen. See Smith v. State, 874 S.W.2d 269, (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd). An Aimminent harm@ occurs when there is an emergency situation, it is Aimmediately necessary@ to avoid that harm, and when a split-second decision is required without time to consider the law. Id. B. EVIDENCE OF IMMINENT HARM INSUFFICIENT TO RAISE DEFENSE OF NECESSITY Rather than raising the defense of necessity, the evidence demonstrates that Wright had ample time to consider the law. It is undisputed that Mr. Wright STATE=S BRIEF B NO CR B PAGE vii

9 and his wife were in a bar full of people. There was phone service, both land and cell. The Sherman Fire Department was less than two miles from the bar. There were many people, including the employees of the bar who would have been able to transport the appellant=s wife to the Fire Department or to a nearby hospital. That the applicant chose to drive well out of his way to another town while intoxicated rather than avail himself of the many other options closer to the bar and readily at his disposal simply does not raise an issue on necessity. The appellant had the opportunity to assess the situation and contact help for his wife in any number of other ways rather than continuing to operate his vehicle in an intoxicated state. The appellant has not shown that he reasonably believed his conduct was immediately necessary to avoid imminent harm, the trial court did not err in denying Wright's request for a necessity instruction in the jury charge. PRAYER WHEREFORE, the state respectfully prays this court affirm the judgment and conviction herein. Respectfully Submitted, JOSEPH D. BROWN CRIMINAL DISTRICT ATTORNEY STATE=S BRIEF B NO CR B PAGE viii

10 KARLA BAUGH HACKETT ASST. CRIMINAL DISTRICT ATTORNEY GRAYSON COUNTY, TEXAS BAR NO S. CROCKETT, SUITE 100 SHERMAN, TEXAS / ATTORNEY FOR THE STATE mailed to: CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing Motion was GARLAND CARDWELL 123 S. TRAVIS ST. attorney of record for the Appellant, in accordance of the Rules of Appellate Procedure, on this the day of, 20. KARLA BAUGH HACKETT ASST. CRIMINAL DISTRICT ATTY. STATE=S BRIEF B NO CR B PAGE ix