Bouchard, Jason Ray v. State ( 2015 )

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December 16,2014
JUDGMENT
U\\t iFourtmttlj Court of Appeals
JASON RAY BOUCHARD, Appellant
NO. 14-13-00350-CR V.
THE STATE OF TEXAS, Appellee
This cause was heard on the transcript of the record of the court below.
Having considered the record, this Court holds that there was no error in the
judgment. The Court orders the judgment AFFIRMED.
We further order this decision certified below for observance.
Affirmed and Memorandum Opinion filed December 16, 2014.
In The
iffourteeuttj Court of Appeals
NO. 14-13-00350-CR
JASON RAY BOUCHARD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 1374815
MEMORANDUM OPINION
Jason Bouchard appeals his conviction for the capital murder of Terri
Sanvicente':175
S.W.3d 738, 743 (Tex. Crim. App. 2005). Then, if error exists, we determine
whether it was harmful using the framework outlined in Almanza v. State, 686
S.W.2d 157 (Tex. Crim. App. 1984). See Barrios v. State, 283 S.W.3d 348, 350
(Tex. Crim. App. 2009).
We review for abuse of discretion a trial court's decision not to include a
defensive issue in the jury charge. Wesbrook v. State, 29 S.W.3d 103, 122 (Tex.
Crim. App. 2000). An accused is entitled to an instruction on every defensive
issue raised^by the evidence. Hayes V. State, 728 S.W.2d 804, 807 (Tex. Crim.
App. 1987). This is true regardless of whether such evidence is strong or weak,
unimpeached or contradicted, and regardless of what the trial court may think
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about the credibility of this evidence. Hamel'v.Stale, 916 S.W.2d 491, 493 (Tex.
Crim. App. 1996). Indeed, the court must view the evidence in the light most
favorable to the defendant's requested submission. Bufkin v. State, 207 S.W.3d
779, 782 (Tex. Crim. App. 2006). A defendant's testimony alone is sufficient to
raise a defensive issue requiring an instruction in the jury charge. Hayes, 728
S.W.2d at 807.
B. Necessity
Section 9.02 of the Texas Penal Code provides that it is a defense to
prosecution if the conduct in question is justified under this chapter. Tex. Penal
Code Ann. § 9.02 (West 2011). Under the defense of necessity, conduct is
justified if (1) the actor reasonably believed the conduct was immediately
necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the
harm clearly outweighed, 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 § 9.22 (West 2011). A "reasonable
belief is one that would be held by "an ordinary and prudent man in the same
circumstances as the actor." Tex. Penal Code Ann. § 1.07(a)(42) (West 2011).
"'Imminent' means something that is impending, not pending; something
that is on the point of happening, not about to happen." Schier v. State, 60 S.W.3d
340, 343 (Tex. App.—Houston [14th Dist] 2001, pet. refd). "An 'imminent
harm' occurs when there is an emergency situation and it is 'immediately
necessary' to avoid that harm, when a split-second decision is required without
time to consider the law." Id. A defendant's belief that conduct was immediately
necessary to avoid imminent harm may be deemed unreasonable as a matter of law
if undisputed facts demonstrate a complete absence of evidence of immediate
necessity or imminent harm. Arnwine v. State, 20 S.W.3d 155, 159 (Tex. App.—
Texarkana 2000, no pet).
C. Defense of third person
In defending a third person, the use of deadly force against another is
justified if the actor would be justified in using deadly force to protect himself
against the unlawful deadly force he reasonably believes to be threatening the third
person; and the actor reasonably believes that his intervention is immediately
necessary to protect the third person. Tex. Penal Code Ann. § 9.33 (West 2011);
see also id. §§ 9.31, 9.32.
D. Because there is no evidence of a reasonable belief that action
was immediately necessary, appellant was not entitled to either
instruction. t
Given the overlap between the two defenses raised by appellant, we address
them together. Both defenses share the common elements of "reasonable belief
and "immediate necessity." In this case, there is no evidence in the record that
appellant's conduct was immediately necessary to avoid imminent harm.
Moreover, as detailed above, appellant's testimony reveals that he did not believe
his daughter was being sexually abused at the time he committed the offense.
Accordingly, appellant was not entitled to either defensive instruction. Because we
hold that there was no evidence to suggest that appellant reasonably believed his
conduct was immediately necessary, we need not address the other elements of the
defenses. We overrule appellant's two issues.
Conclusion
Having overruled appellant's issues, we affirm the trial court's judgment.
/'s/ J. Brett Busby
Justice
Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).
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