Thiel v. State , 1984 Tex. Crim. App. LEXIS 768 ( 1984 )

OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

Our prior opinion is withdrawn.

This is an appeal from a conviction for escape. See V.T.C.A., Penal Code, § 38.07. After the jury found appellant had been previously convicted of two prior felony offenses as alleged in the indictment, punishment was assessed at life imprisonment. See V.T.C.A., Penal Code, § 12.42(d) (1973) (prior to the 1983 amendment thereto).

On August 28, 1978, the appellant was in custody at the Harris County Rehabilitation center on a charge of unauthorized use of a motor vehicle. On that morning he was transported to the Ben Taub Medical Center in Houston by Deputy Sheriff Joseph Harris. After appellant was examined by a doctor, he and Deputy Harris went to the appointment desk to secure another appointment. Appellant asked and was given permission by Harris to return to talk to the doctor. Harris continued to make the future appointment. In three minutes he went to the clinic room and discovered appellant had left the clinic area by another door. Appellant was not apprehended for almost two months. Appellant testified that at the time he was suffering from “bronchial cancer,” that the treating doctor was Vietnamese, spoke little English, was difficult to communicate with and was unconcerned with his condition. He stated when he complained to Deputy Harris he encountered a similar attitude.

' On appeal appellant raises two grounds of error. First, appellant contends the court erred in a jury instruction which precluded the jury from considering evidence relevant to conditions of his confinement, his physical condition, the treatment received and his intent “not to avoid confinement but to avoid the lack of medical treatment.

Appellant directs attention to the abstract portion of the court’s charge stating:

“A person charged with an offense commits an offense if he intentionally or knowingly escapes from custody.

“So that you may better understand the nature of the offense with which the defendant is charged, I now define certain terms and words.

“ ‘Escape’ means unauthorized departure from custody.

“ ‘Custody’ means detained or under arrest by a peace officer or under restraint pursuant to an order of a court.

“Sheriffs and their deputies are peace officers.”

There were no objections to the court’s charge nor any special requested instructions. See Articles 36.14 and 36.15, V.A.C.C.P. Where there is no objection is made to the court’s charge to the jury, nothing is preserved for review. Johnson v. State, 629 S.W.2d 731 (Tex.Cr.App.1981); Manry v. State, 621 S.W.2d 619 (Tex.Cr.App.1981). See also Mulchahey v. State, 574 S.W.2d 112, 118 (Tex.Cr.App.1978); Slanker v. State, 505 S.W.2d 274, 275 (Tex.Cr.App.1974).

Further, the jury instructions were proper regarding the offense of escape. V.T. C.A., Penal Code, § 38.07. It appears also that appellant is arguing that the court should have disregarded the Texas statute and instructed the jury pursuant to federal case law. The authorities cited are not persuasive. Appellant’s ground of law is without merit and is overruled.

Next appellant argues the “trial court erred and abused its discretion in refusing to recognize the standard necessity/duress defenses to the offense of escape, defenses which would affirmatively justify or excuse appellant’s actions.”

It appears from the argument advanced under such ground of error that appellant is really complaining about the exclusion by the court of certain testimony, and not that the court failed to sua sponte charge on the defense of necessity.

He calls attention to certain page numbers in the record which he claims demonstrates that the court “openly proclaimed” that evidence of appellant’s physical condition, lack of medical treatment, etc., was not admissible “on the crime of escape,” and that if admitted would not constitute a defense to escape. The page numbers cited have been carefully examined. It appears these pages have reference to three or four witnesses and to jury argument by the prosecutor. The ground of error is multifarious and not in accordance with Article 40.09, § 9, V.A.C.C.P. Nothing is presented for review. Mitchell v. State, 650 S.W.2d 801 (Tex.Cr.App.1983). Further, mere reference to pages of record does not sufficiently identify complained of testimony and rulings of the court and does not constitute a ground of error. Hurd v. State, 513 S.W.2d 936 (Tex.Cr.App.1974); Arivette v. State, 513 S.W.2d 857 (Tex.Cr.App.1974); Jackson v. State, 494 S.W.2d 854 (Tex.Cr.App.1973); Erwin v. State, 463 S.W.2d 13 (Tex.Cr.App.1971); Dominguez v. State, 459 S.W.2d 628 (Tex.Cr.App.1970); Alexander v. State, 458 S.W.2d 656 (Tex.Cr.App.1970).

We do note that several of the pages referred to mention a Louis Sheptin, who was subpoenaed but failed to appear and informed appellant he did not want to appear. Appellant proffered testimony that Sheptin was an inmate at the Rehab. Center and would testify that he saw appellant spitting up blood and coughing and being denied medical attention. Other proffered testimony showed Sheptin was involved in a federal civil rights investigation concerning a death at the Rehab. Center, and would not testify for that reason. Other pages cited appear to refer to Allister Miller and Hunter Carruth, whom the appellant proposed to call as witnesses. No bill of exception was perfected with regard to their testimony, but appellant proffered evidence they would relate they saw appellant spitting up blood and being denied medical treatment. There was no showing as just when they observed appellant or the relevance to the offense charged. Other page references are made to the testimony of Eulala Lou Gelsthorpe, but we are not informed just what testimony was excluded or what rulings of the court are complained of. Other page numbers referred to concern unobjected to jury argument by the prosecutor.

It is impossible to appraise the ground of error supposedly advanced.

We do observe that appellant offered no evidence of a bona fide effort to surrender or return to custody as soon as any claimed necessity for escape had passed.

In United States v. Bailey, 444 U.S. 394, 412, 100 S.Ct. 624, 635, 62 L.Ed.2d 575 (1980), the Supreme Court wrote:

“... in order to be entitled to an instruction on or necessity as a defense to the crime charged, an escapee must offer evidence justifying his continued absence from custody as well as his initial departure and that an indispensable element of such offer is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force.”

We find no merit in appellant’s ground of error.

The judgment is affirmed.

CLINTON, J., concurs in the result.