Jaime Alvarez v. State ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00444-CR
NO. 02-16-00445-CR
JAIME ALVAREZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 1419571D, 1422028D
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MEMORANDUM OPINION1
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A jury convicted Appellant Jaime Alvarez of two counts of unlawful
possession of a firearm by a felon, charged separately, and the trial court
sentenced him to six years’ confinement for each offense. See Tex. Penal Code
Ann. §§ 12.34, 46.04(a)(1), (e) (West 2011). In one issue, Appellant contends
1
See Tex. R. App. P. 47.4.
that the trial court reversibly erred by including a provocation instruction along
with his requested necessity instruction in the jury charge. We affirm.
I. BACKGROUND FACTS
A. The Two Arrests
On two separate occasions less than a month apart, Appellant, a felon,
was arrested for unlawfully carrying a firearm.
Fort Worth Police Officer Robert Costa, who was in the gang unit, testified
that he already knew Appellant before the evening of the first arrest, May 31,
2015. Officer Costa stated that Appellant was in the Centros Most Wanted
(CMW) gang, an offshoot of the Barrio Centro gang. Officer Costa explained that
on that evening, he had observed Appellant walking around in his front yard for
about twenty minutes. Officer Costa stated that Appellant was not carrying a gun
then and did not seem scared or frightened. When Appellant and a passenger
drove away from his home, Officer Costa and his partner, Officer Jonathan
McKee, followed him. At approximately 11:55 p.m., they stopped Appellant for
turning right at an intersection without using a turn signal. Instead of stopping
after Officer Costa turned on his overhead lights, Appellant drove back to his
home, less than a block away, and then stopped. Officer Costa approached
Appellant’s vehicle and smelled marihuana. He asked Appellant to exit the
vehicle, and Officer McKee asked Appellant’s passenger to also exit the car. As
Appellant disembarked, he winced in pain. When Officer Costa asked Appellant
what was wrong, Appellant stated that he had recently shot himself in the right
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leg. Officer Costa then noticed Officer McKee exit Appellant’s vehicle with a
handgun. Appellant confirmed to Officer Costa that that was the weapon with
which he had shot his leg. After Officer Costa confirmed that Appellant had prior
felony convictions, he arrested Appellant for unlawful possession of a firearm by
a felon.
Officer Costa testified that when he first spoke with Appellant after
stopping him that night, Appellant did not indicate that he was in danger.
Instead, before the arrest, rather than expressing concern for his safety,
Appellant’s “main concern was he thought [the police] were after the wrong
person.” Officer Costa testified that Appellant, seeming “extremely paranoid” and
delusional and appearing to be on methamphetamine, told him that he “knew
who [Costa was] looking for.” Officer Costa testified that he had not been looking
for anyone.
Fort Worth Police Officer Danielle McConahay testified that on June 26,
2015, a sunny day, she was working patrol in the central division. She was
driving westbound on East Berry Street, headed to a call, when a UPS driver
pulled over in front of her. “[H]e got out of his car, and he kind of ran over with
his hands up, look[ing] concerned.” The UPS driver told Officer McConahay that
“a man wearing camo [was] walking eastbound on . . . East Berry over the
35 bridge and that he was carrying a gun.” Officer McConahay continued to
drive “westbound to look for the guy.” When she spoke with dispatch, she
learned that other people had called about the man as early as the previous night
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and that he was not brandishing the weapon. When Officer McConahay spotted
the man, he was calmly walking through a parking lot, carrying a shotgun on his
shoulder. He was not threatening anyone, so Officer McConahay approached
the man just “to talk to him to see what[ was] going on, see what he[ was] doing,
see what he[ was] thinking.” In the conversation, the man, whom Officer
McConahay identified as Appellant at trial, told the officer that “[h]e was a
convicted felon, and he had a gun and . . . to do what [she] needed to do.” After
verifying that Appellant was a felon, Officer McConahay arrested him.
In each instance, Appellant claimed that he needed the gun for protection.
B. The Jury Charge
The trial court granted Appellant’s requested instruction on the defense of
necessity but also granted the State’s related provocation instruction over
Appellant’s objection. At the charge conference, the State objected to the
necessity defense instruction’s inclusion in the charge because “there [was] no
evidence at all in this trial concerning” imminence. The trial court overruled that
objection but then granted the State’s requested provocation instruction.
Defense counsel objected. The charge reads,
As to the law of necessity, you are instructed that a person’s
conduct is justified if that person reasonably believes his conduct is
immediately necessary to avoid imminent harm; and 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.
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A defendant who provokes the difficulty or is responsible for
placing himself in a position from which he attempts to extricate
himself by a criminal act is not entitled to the defense of necessity.
Now, if you find and believe from the evidence that on the
occasion in question the defendant reasonably believed, viewed
from the standpoint of the defendant at the time, that his conduct of
unlawful possessing a weapon was immediately necessary to avoid
imminent harm, and 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, then you should acquit the defendant, or, if
you have a reasonable doubt as to whether or not the defendant
acted reasonably or the desirability and urgency of avoiding the
harm was unreasonable under the circumstances, then you should
give the defendant the benefit of that doubt and say by your verdict
“not guilty.”
II. DISCUSSION
A. The Necessity Defense
1. General Parameters of the Necessity Defense
Our court recently discussed the necessity defense:
Necessity is a justification defense that excuses a defendant’s
otherwise unlawful conduct if (1) the defendant 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. See Tex. Penal Code
Ann. §§ 9.02, 9.22 (West 2011); Young v. State, 991 S.W.2d 835,
838 (Tex. Crim. App.[), cert. denied, 528 U.S. 1063 (1999)]. It is a
confession-and-avoidance defense, meaning a defendant is not
entitled to a necessity instruction unless he admits to the conduct—
the act and the culpable mental state—of the charged offense and
then offers necessity as a justification.[2] See Juarez v. State,
2
An instruction on a confession-and-avoidance defense like necessity is
proper “only when ‘the defendant’s defensive evidence essentially admits to
5
308 S.W.3d 398, 399 (Tex. Crim. App. 2010); Pennington v. State,
54 S.W.3d 852, 856 (Tex. App.—Fort Worth 2001, pet. ref’d).
every element of the offense, including the culpable mental state, but interposes
the justification to excuse the otherwise criminal conduct.’” Cornet v. State,
417 S.W.3d 446, 451 (Tex. Crim. App. 2013) (quoting Shaw v. State, 243 S.W.3d
647, 659 (Tex. Crim. App. 2007), cert. denied, 553 U.S. 1059 (2008)). “As for
‘admitting’ conduct under the doctrine of confession and avoidance, it is sufficient
that the defendant point to defensive evidence, originating in his own statements,
such that a trier of fact could reasonably infer that each element of the offense
has been satisfied.” Cornet v. State, 359 S.W.3d 217, 226 (Tex. Crim. App.
2012).
While neither party mentions this issue, our review of the record reveals
that Appellant did not testify or call any witnesses, and the exhibits he offered
into evidence had nothing to do with his commission of the offenses. On the
other hand, the defense discussed necessity in its voir dire and opening
statement, developed its theory of necessity through cross-examination of the
State’s witnesses, and continued in that vein in the closing statement, with
Appellant’s trial counsel explicitly stating,
I’m primarily going to talk to you right now about the law of necessity,
because in my mind in both of these cases in the Charge, that’s the
key. That’s the key to this case. Okay. There’s no question about
the fact that [Appellant]’s a felon. No . . . question about the fact that
he had a gun on two different occasions.
Further, Appellant stipulated to his arrests for the two offenses (but not his guilt)
and his prior felony conviction and also stipulated that these facts are “evidence
in the case.”
We do not need to decide whether Appellant’s focus on necessity in the
nonevidentiary parts of the trial and his signed stipulation attesting to his arrests
in these cases as well as his prior felony conviction sufficiently satisfy his burden
to admit the charged offenses despite the absence of relevant defensive
evidence because we hold that error, if any, in giving the provocation instruction
was harmless.
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Spence v. State, No. 02-16-00222-CR, 2017 WL 3526346, at *3 (Tex. App.—Fort
Worth Aug. 17, 2017, pet. ref’d) (mem. op., not designated for publication)
(selected citations omitted).
2. The Disputed Provocation Exception
a. Appellant’s Sole Point
In his sole point, Appellant contends that the trial court erred by including
the provocation instruction over his objection. Some courts, including this one,
have held that a defendant who provokes the difficulty which he in turn commits a
crime to resolve or who is responsible for placing himself in a position that he
then tries to get out of by committing a crime is not entitled to a necessity
defense. See, e.g., id. at *3–4; Shafer v. State, 919 S.W.2d 885, 887 (Tex.
App.—Fort Worth 1996, pet. ref’d). Appellant challenges this “provocation
exception.” He contends that the sole, ultimate basis of the holdings of this court
and others recognizing this exception is unsupported dicta in Leach v. State,
726 S.W.2d 598, 600 (Tex. App.—Houston [14th Dist.] 1987, no pet.). See, e.g.,
Timmons v. State, No. 13-15-00505-CR, 2017 WL 1549226, at *4 n.2 (Tex.
App.—Corpus Christi Apr. 27, 2017, no pet.) (mem. op., not designated for
publication); Ford v. State, 112 S.W.3d 788, 794 (Tex. App.—Houston [14th
Dist.] 2003, no pet.); Rangel v. State, Nos. 04-01-00451-CR, 04-01-00452-CR,
04–01–00453–CR, 2002 WL 1625576, at *3–4 (Tex. App.—San Antonio July 24,
2002, no pet.) (not designated for publication); Singleton v. State, No. 03-01-
00057-CR, 2002 WL 389263, at *6 (Tex. App.—Austin Mar. 14, 2002, pet. ref’d)
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(not designated for publication); Miller v. State, 940 S.W.2d 810, 815 (Tex.
App.—Fort Worth 1997, pet. ref’d); Shafer, 919 S.W.2d at 887; McFarland v.
State, 784 S.W.2d 52, 54 (Tex. App.—Houston [1st Dist.] 1990, no pet.); Goodin
v. State, 750 S.W.2d 857, 862 (Tex. App.—Corpus Christi 1988, pet. ref’d).
Appellant contends that because the provocation exception is based on neither
caselaw from the Texas Court of Criminal Appeals nor statutory law, it is neither
an exception to the necessity defense nor part of the law applicable to the case.
He therefore contends that the trial court erred by including the provocation
instruction in the jury charge. Alternatively, Appellant contends that “the facts,
law, and equity itself require a finding that” he did not provoke the difficulty.
b. Split of Authority
Our sister court in Waco, which supports Appellant’s position, see Ray v.
State, 419 S.W.3d 467, 468–69 (Tex. App.—Waco 2013, pet. ref’d), relies on
language from the Texas Court of Criminal Appeals noting that “(t)he plain
language codifying the necessity defense evinces a legislative intent that the
defense apply to all offenses unless the legislature has specifically excluded it
from them.” Bowen v. State, 162 S.W.3d 226, 228–29 (Tex. Crim. App. 2005)
(quoting Spakes v. State, 913 S.W.2d 597, 598 (Tex. Crim. App. 1996)); see also
Tex. Penal Code Ann. § 9.22; Vasquez v. State, 830 S.W.2d 948, 950 (Tex.
Crim. App. 1992). Because the legislature has not included a provocation
exception in the necessity statute, the Waco court likewise did not apply the
exception in Ray. 419 S.W.3d at 468–69.
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c. We Do Not Need to Resolve the Split of Authority or
Determine Error Because There Is No Harm.
We do not need to decide whether to follow or overrule our precedent
regarding the propriety of including a provocation instruction with an instruction
on necessity because, as we hold below, even if the trial court erred by including
a provocation instruction along with the necessity instruction, error, if any, was
harmless. See Tex. R. App. 47.1; Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985) (op. on reh’g). As addressed more fully below, the evidence
supported the jury’s rejection of the necessity defense regardless of the
provocation instruction because the evidence did not show that Appellant’s
possession of a firearm was “immediately necessary to avoid imminent harm” in
either case. See Tex. Penal Code Ann. § 9.22(1); Dobry v. State, Nos. 02-14-
00508-CR, 02-14-00509-CR, 2016 WL 1469988, at *3 (Tex. App.—Fort Worth
Apr. 14, 2016, no pet.) (mem. op., not designated for publication).
B. Almanza Harm Analysis
1. Standard of Review
Error in the charge, if timely objected to in the trial court, requires reversal
if the error was “calculated to injure the rights of [the] defendant,” which means
no more than that there must be some harm to the accused from the error. Tex.
Code Crim. Proc. Ann. art. 36.19 (West 2006); Abdnor v. State, 871 S.W.2d 726,
732 (Tex. Crim. App. 1994); Almanza, 686 S.W.2d at 171; see also Reeves v.
State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). In other words, a properly
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preserved error will require reversal if it is not harmless. Almanza, 686 S.W.2d at
171. This analysis requires a reviewing court to consider (1) the jury charge as a
whole, (2) the arguments of counsel, (3) the entirety of the evidence, and
(4) other relevant factors present in the record. Reeves, 420 S.W.3d at 816; see
also Almanza, 686 S.W.2d at 171 (“[T]he actual degree of harm must be assayed
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.”).
2. Analysis
a. The State of the Evidence
Even absent the provocation instruction, the evidence sufficiently supports
the jury’s rejection of the necessity defense in both cases because Appellant’s
conduct was not immediately necessary to avoid imminent harm.
i. Standard for Reviewing Sufficiency of the Evidence
A defendant has the burden of producing some evidence to support a
claim of necessity. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App.
2003). The State thereafter has the burden of persuasion in disproving the
defense. See Saxton v. State, 804 S.W.2d 910, 913–14 (Tex. Crim. App. 1991).
This burden does not require the State to produce evidence refuting the
necessity claim; rather, the burden requires the State to prove its case beyond a
reasonable doubt. See id. at 913. A jury verdict of guilty is an implicit finding
rejecting the defendant’s necessity theory. See id. at 914.
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In reviewing the sufficiency of the evidence to support the jury’s rejection of
Appellant’s theory of necessity, we examine all of the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the offense of unlawful possession of a firearm
by a felon and also could have found against him on the necessity issue beyond
a reasonable doubt. See id. Because our goal here is to determine whether the
jury would have convicted Appellant without the provocation instruction, we
proceed as if that instruction were absent.
ii. The Immediacy Elements of Necessity
In explaining the immediacy requirements of self-defense and defense of a
third person, the Texas Court of Criminal Appeals analogized to the same
requirements of necessity:
“Imminent” has been defined as “ready to take place, near at hand,
impending, hanging threateningly over one’s head, menacingly
near.” Thus, imminent harm is harm that is ready to take place—
harm that is coming in the very near future. Logically, then, if
conduct is “immediately necessary” to avoid harm that is imminent,
that conduct is needed right now. The justification defense of
necessity applies when action is needed “immediately” (i.e., now) to
avoid “imminent” harm (i.e., harm that is near at hand).
Henley v. State, 493 S.W.3d 77, 89 (Tex. Crim. App. 2016) (citations omitted)
(relying in part on Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989)).
Intermediate courts of appeal provide that imminent harm:
 “is impending, not pending,” Davis v. State, 490 S.W.3d 268, 275 (Tex.
App.—Fort Worth 2016, pet. ref’d);
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 “is immediate” and “going to happen now,” Harper v. State, 508 S.W.3d
461, 468 (Tex. App.—Fort Worth 2015, pet. ref’d) (citations omitted);
 “is on the point of happening, not about to happen,” Pennington,
54 S.W.3d at 857;
 “contemplates a reaction to circumstances that must be the result of a
split-second decision (made) without time to consider the law,” Dewalt v.
State, 307 S.W.3d 437, 454 (Tex. App.—Austin 2010, pet. ref’d) (citations
omitted);
 “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,” Smith v. State, 874 S.W.2d 269,
273 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d); and
 is “an immediate, non-deliberative action made without hesitation or
thought of the legal consequence,” Stefanoff v. State, 78 S.W.3d 496,
501 (Tex. App.—Austin 2002, pet. ref’d) (op. on reh’g).
iii. The May 31, 2015 Offense
(a) The Evidence
(1) Officer Costa’s Testimony
Officer Robert Costa testified that after he arrested Appellant on May 31,
2015, Appellant told him about a recent burglary:
Well, what he had told me was some of his old [CMW] running
buddies had been casing gun shows. And what they would do is go
into the gun shows and follow these people back home. Not
necessarily purchase weapons at the gun show, but follow the
people back home and then wait for them to leave and burglarize
their residence.
Appellant told Officer Costa the names of the three people who had been
involved in that burglary, one of whom Officer Costa knew was in Appellant’s
gang, one who was either in that gang or one friendly to it, and one whose gang
status Officer Costa did not know.
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Officer Costa testified that Appellant “stated that he was paranoid. He
thought that [the burglar who was also his fellow gang member] may have been
coming by looking for him, and he thought that the house that they hit may have
been a Cartel house.” But Appellant did not identify the specific Cartel, nor did
he provide a specific reason that the Cartel would want to kill him. Officer Costa
also stated that he did not see any gang members or Cartel members drive by
the scene of the arrest. Officer Costa answered affirmatively that in his opinion,
Appellant’s offer to provide information was his attempt to leverage his way out of
the charge for unlawfully possessing the handgun.
On cross-examination, Officer Costa denied believing that Appellant
thought he was in imminent danger when he talked about the Cartel and gang
members wanting to kill him. Officer Costa testified that based on what he
observed when he watched Appellant walking around his yard before the traffic
stop, Appellant did not seem scared of any imminent violence: “I don’t believe he
feared for his life. His actions seemed fairly normal. [He was g]oing in and out of
the back of the vehicle[ and i]n and out of the house. [He was j]ust walking freely
in the front yard. Nothing out of the normal.” Officer Costa admitted on cross-
examination that the handgun was in Appellant’s car, near where Appellant
walked in his yard, “right there where he c[ould] get to it” if he needed it.
Officer Costa further admitted:
 Appellant could have been paranoid because of fear related to gang
activity;
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 Appellant told him that he believed “someone was after him”;
 Appellant had “expressed fear” of both gang and Cartel members “that
might have been after him and maybe even take his life”;
 Cartels “traffic [in] narcotics” and “kill people over drugs and money”; and
 Informants’ lives can be at risk.
The following exchange also took place on the cross-examination of Officer
Costa:
Q. . . . . If you got a gang member or a former gang member
that’s expressing to you that he fear[s] for his life, do you think it
would be reasonable for that person to arm him or herself?
A. If he felt he needed to protect himself.
....
Q. And it wouldn’t be unreasonable to arm yourself if you were in
fear for your life, correct?
A. It would be reasonable if you were a law-abiding citizen. Once
you become a felon, you’ve given up that right.
Finally, Officer Costa emphasized that “at the point [Appellant] was fearing
for his life, he wasn’t a snitch yet.”
(2) Officer McKee’s Testimony
Officer Jonathan McKee testified that he and Officer Costa waited a
“[c]ouple of minutes, if that” and “two minutes or less” at Appellant’s house before
he drove off and they followed him. Officer McKee also testified that only Officer
Costa “had eyes on” the house. From their vantage point, Officer McKee could
not see the house and did not see Appellant walking around.
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Appellant told Officer McKee that someone who owed him money had
given him the handgun.
Officer McKee testified that after the arrest, Appellant “told [the officers]
that he believed that people were after him, out to hurt him,” and Appellant
identified those “people” as gang members who had committed a burglary.
Officer McKee denied:
 that Appellant acted like he was scared;
 that Appellant acted paranoid; and
 that Appellant told him specifically whether he was being targeted or being
threatened.
But Officer McKee testified that Appellant had “said that someone had put
a green light bulb on his porch or patio light, and that he had seen a suspicious
vehicle drive by several times.” Officer McKee explained that Appellant believed
that he had been “greenlit” or “green-lighted,” which meant that a gang had
“given their approval for [him] to be killed.”
(3) Detective Paul Ufkes’s Testimony
Detective Paul Ufkes of the Fort Worth Police Department testified that:
 He was the on-call detective at the time of Appellant’s arrest;
 Gang enforcement officers called him in the middle of the night to tell him
they had arrested Appellant for unlawful possession of a firearm by a felon,
and he had some information about a burglary;
 Detective Ufkes went in to the police department to interview Appellant;
 Appellant “seemed very agitated” when Detective Ufkes arrived;
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 Appellant “seemed to be concerned for some children. That was what he
was agitated about”;
 Appellant “was very concerned for his kids when [Officer Ufkes] first
arrived”;
 Appellant told the detective that three of his associates had “broke[n] into a
house . . . on the west side on Harley Street” and had taken a safe
containing $240,000;
 Appellant identified a photo of a fellow gang member who was one of the
burglars;
 Detective Ufkes confirmed that the house had been burglarized on May 2,
2015, but the report had not indicated the amount of money stolen;
 The wife of one of the identified burglars bought a new pickup for
$25,000 cash a few days after the May 2, 2015 burglary, which made
Appellant’s story about the burglary more credible;
 Appellant gave Detective Ufkes the information because he thought “that
he would be blamed for the burglary[] and . . . the house that was broken
into had possible Cartel ties,” based on the fact that more than
$200,000 was taken in the burglary and Appellant’s belief that “there was
no way . . . Mexicans [could] make that much money without being Cartel”;
 Appellant was in the hospital for infected self-inflicted gunshot wounds
when the burglary occurred;
 Appellant had shot himself with the handgun, which he had received from
one of the burglars in partial payment of a debt before the burglary;
 Appellant indicated in the interview that he was present when “they broke
open the safe” that had been taken in the burglary and that he had helped
count the money;
 Appellant said the burglars were supposed to buy him a vehicle but “they
never gave him shit”; they did buy him some marihuana;
 Detective Ufkes spoke to one of the complainants in the burglary, Sandra
Saldana;
 The Saldanas later told the lead detective on the burglary case that more
than $200,000 had been in the stolen safe;
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 Cartel drug operations deal in large amounts of cash and do not want to
report it;
 The burglars could have reasonably deduced that the house they had
targeted was a Cartel house based on the amount of money in the safe;
 A couple of days after his arrest, Appellant met with Detective Ufkes and
pointed out the burgled house, which was the Saldana house, but he also
seemed to be under the influence of drugs: “He was very erratic, kind of
bouncing”;
 People with long-term drug problems can become very paranoid;
 Appellant was concerned that someone would hurt his family;
 During the interview, Appellant led Detective Ufkes to believe that he was
afraid of both his gang and the Cartel;
 Detective Ufkes was not made aware that night of any shootings or
911 calls regarding Appellant’s family members;
 Detective Ufkes had not learned during the ensuing investigation that any
of Appellant’s family members had been “shot or hurt”;
 Neither Detective Ufkes nor “anyone else” advised Appellant to carry a gun
to protect himself against the Cartel;
 Appellant may have put himself at risk by snitching on the burglars, but he
also might have been trying to “lessen his offense” by doing so;
 Gang members and the Cartel are both capable of sudden violence and of
causing imminent death and “are willing to use that sort of violence against
people who snitch on them”; and
 Detective Ufkes had no report or record of violence or attempted violence
against Appellant or his family by a Cartel or anyone else.
Detective Ufkes testified that Appellant did not:
 tell the detective that he had personal knowledge that someone at the
Saldana house was in the Cartel;
 tell the detective that he had spoken to anyone at the house or in his gang
who had told him the house was a Cartel house;
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 name specific instances when the Cartel had shot at his house and
missed;
 tell Detective Ufkes that he was trying to get out of the gang;
 give Detective Ufkes a reason to believe that he was forced to join a gang;
 tell Detective Ufkes that one of the burglars was at his house on May 31,
2015 trying to shoot him;
 tell Detective Ufkes that the complainants in the Saldana burglary were at
his house on May 31, 2015 threatening to kill him;
 tell the detective that when gang enforcement officers arrived at
Appellant’s house, gunmen with guns trained on his house were also
present;
 have any letters, recordings, or physical evidence to support his Cartel
claim;
 have the green light bulb he claimed had been put in the light fixture at his
house; or
 help Detective Ufkes with the burglary investigation after bonding out of
jail.
(4) Sandra Saldana’s Testimony
Sandra Saldana testified that:
 She lived on Harley Street in Fort Worth with her two younger brothers, her
two minor children, and her parents;
 She worked and attended nursing school;
 Her mother cleaned three or four houses per week and usually made
$60 per house;
 Her father had a lawn care service company;
 One brother worked in the administrative department of a local college;
 One brother worked for a gym;
 The family’s home was burglarized on Saturday, May 2, 2015;
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 The items stolen included lawn equipment, electronics, shoes, clothes,
jewelry, and a safe;
 The safe held car titles, house titles, credit cards, checks, and around
$200,000 in cash;
 The cash in the safe belonged to all five of the adults in the house and was
not separated by owner;
 Her father had recently taken money out of the bank and put it in the safe
because he “was about to buy a house” as an investment and had a
meeting with a realtor scheduled for the following Monday morning;
 She told the detective in charge of the burglary how much money was
taken in her first meeting with him a week after the burglary;
 The family had not recovered any of the stolen property;
 Appellant, whom the family did not know, began leaving messages at the
home phone number and texting Saldana’s father;
 Appellant told Saldana that he obtained the telephone numbers from
paperwork that was in the safe; and
 About seven weeks after the burglary, Appellant met with the five Saldana
adults in his front yard.
Saldana further testified:
[Appellant] basically gave [the Saldana family] a lot of details as far
as information—well, as far as what was in the safe, things that he
had seen, people that broke in. . . . [H]e told [the Saldanas] who did
what, who was where. He gave [the Saldana family] names. . . .
[H]e showed [the Saldanas] pictures. He gave [the Saldanas] . . .
relatives to those people that supposedly broke into [the Saldana]
house.
Saldana stated that Appellant told her family that his friends were “trying to
blame him for the burglary” and also that “his friends told him [that the Saldanas]
were paying them to blame him for the burglary,” and he wanted to clear his
name. Saldana testified that Appellant gave her a cellular phone he took from
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one of the burglars and encouraged her to take it to the police. Appellant told the
family that they knew where to find him if they or the police needed anything else.
When the family took the phone to the detective in the burglary case, he looked
at its contents and warned them not to “mess with those . . . people [the persons
portrayed in the photographs in Defense Exhibits One and Two, who Appellant
told Saldana were the burglars] because [they] owe money to other people in
north side who are related to the Cartels.” The detective returned the phone to
the family.
About a week after Appellant gave the family the phone, he began calling
and texting to ask for it back. Eventually, he showed up at the Saldanas’ home,
saying that he needed the phone back and complaining that the Saldanas were
not offering him money for information. He implied that the Saldanas were in the
Cartel. In her testimony, Saldana denied that:
 Anyone in her family was connected to a Cartel;
 The cash in the safe was drug money;
 She knew any Cartel members; and
 The family had been investigated by the police as being a Cartel drug
family.
(b) The Evidence Supports the Rejection of the
Necessity Defense Because There is No
Evidence of Imminence.
Even ignoring the provocation instruction, a jury could have found against
Appellant on the necessity issue beyond a reasonable doubt regarding the May
2015 offense because there was no evidence of imminence. The burglary had
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occurred almost a month before the arrest. Appellant had possessed the
handgun even before the burglary. Officer Costa observed him walking around,
unarmed, in his own yard for about twenty minutes before the arrest. There was
no evidence that his fellow gang members, the Cartel, or anyone else threatening
his life or the lives of third persons was near his home—the place of his arrest—
at the time of his arrest. While there was some evidence that Appellant was
generally afraid, no evidence indicated that when he got in his car and drove
away from his house that evening, an emergency justified his possessing the
handgun. See Dewalt, 307 S.W.3d at 454–56.
iv. The June 26, 2015 Arrest
(a) The Evidence
In the daylight hours of June 26, 2015, Appellant was spotted calmly
carrying a shotgun on his shoulder on Berry Street over the Interstate 35 bridge.
The police had also received calls the previous night about him walking around
with the shotgun. Appellant never pointed the weapon at anyone and never
behaved in a threatening manner. When Officer McConahay reached him, he
was walking across a parking lot. Officer McConahay testified that Appellant told
her:
 “[H]e had upset the Cartel or maybe his family. Somebody had upset the
Cartel and somehow he was involved with that, and . . . he had the gun for
protection” because “the Cartel was after him”; and
 “[H]e wasn’t going to shoot anyone unless they pointed a gun at him.”
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On redirect examination, Officer McConahay explained that “unless”
indicated a “possible future danger,” not an ongoing danger. Officer McConahay
denied that Appellant seemed scared: “[H]e wasn’t running. He didn’t seem
overly frightened. He wasn’t crying. He was just kind of telling me what was
happening.” She testified that Appellant did not identify anyone as a threat to
him when she first made contact.
Appellant told Officer McConahay that he lived on Butler, which she
testified was within her patrol area, but was “pretty far” and “a pretty good walk”
from where she arrested him.
In State’s Exhibit 19, the audio-video recording from Officer McConahay’s
body camera, Appellant told her that (1) he was wearing his brother’s camouflage
clothing because the Cartel put out a green light on him for snitching on them
and (2) he also “ratted” on his friends. Appellant admitted to Officer McConahay
that he was not told to get a gun but stated that he was told to do whatever he
needed to do to stay safe. He also told her that he wanted to report more
information to the CIA or Homeland Security. He did not specifically discuss his
providing information to the Fort Worth Police Department about the Saldana
burglary.
(b) The Evidence Supports the Rejection of the
Necessity Defense Because There is No
Evidence of Imminence.
In determining Appellant’s guilt for the June 2015 offense, a jury could
have found against him on the necessity issue beyond a reasonable doubt
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because again, there was no evidence of imminence. Appellant had been seen
walking around with the shotgun during the night before his arrest as well as
when he was arrested in broad daylight. No one had seen him point the gun at
anyone or behave in a threatening manner. While he expressed a general fear
of the Cartel and his friends and a general need to defend himself, there was no
evidence that anyone was literally and specifically threatening his life or the lives
of third persons in the moments at or near the time of his arrest. That is, there
was no evidence that Appellant needed to carry that shotgun on June 26,
2015 while walking on or near Berry Street to prevent someone nearby from
injuring or killing him immediately. See Dewalt, 307 S.W.3d at 454–56.
b. The Rest of the Jury Charge, Voir Dire, and Opening
Statement
The remainder of the jury charge here does not affect harm. Further, the
State did not touch on provocation in its voir dire or opening statement.
c. Closing Argument
While Appellant argues that “the State used the objectionable charge
language [in its initial closing argument] to legitimate threats to Appellant’s life
and family represented by opposing gangs and cartel members,” the State did
not refer to the provocation exception explicitly. Instead, the State stated,
What the defendant is asking you for is permission, permission for
him to carry a gun. A convicted felon who is a gang member wants
a standing license to carry a firearm.
When you enter the gang lifestyle, when you decide to be a
gang member, you have chosen a life where violence is
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commonplace. Gangs have rival gangs. When you join a gang, you
instantly have people who want to hurt you. You instantly have
enemies. So this would just apply across the board to gang
members. It would allow them to carry guns any time they want,
anywhere they want and of any type they want.
The State focused its initial closing argument on the absence of imminent harm,
not on provocation.
After the defense discussed the absence of provocation on several
occasions in its closing argument, the State briefly discussed provocation in a
couple of paragraphs of its more than six pages of final closing argument:
Finally, you can’t get the necessity defense if you provoke the
issue. Now, it’s met a bunch of different ways this is going on. First
of all, for a long time [Appellant] has been involved in the gang
lifestyle, and there’s no evidence from any source that’s quit. And
he made friends with these guys. He hangs out with these guys. He
was there counting the money that they stole, that he says is Cartel
money. He was counting it. He wanted to get a cut of it. And then
he wants to be scared of them.
He’s the one that decided to turn in his friends. He’s the one
that decided to tell all that was going on, and yet he’s now afraid for
that reason so he can carry a gun. He says that the Cartel is after
him, and he told you—he said who they were. They were the victims
of that burglary, and yet he approaches them. He extorts them, and
then he wants to say he can carry a gun for that reason. That is not
what this defense is made for. Just like [the other prosecutor] said,
that is just giving someone a license to carry a gun because they
make up some reason to do it.
Then the State returned to its main theme—that there was no necessity because
there was no imminent harm requiring an immediate act:
There is no necessity here. This isn’t someone accosted him
at a Wal-Mart, and he grabbed a weapon off the shelf. This is not
someone burglarized his house, and he took the weapon from them
and turned it on them. It’s not he went next door and got a gun from
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someone that was actively shooting at his house to return fire.
There’s none of that.
d. Any Error Was Harmless.
There was no evidence that Appellant needed a weapon on either
occasion to combat an act of split-second violence. If he had been under attack
when he grabbed a weapon and was then charged with unlawful possession of a
firearm by a felon, our analysis would likely be different. But under the facts
surrounding Appellant’s two arrests here, because there was no necessity, error,
if any, in tying Appellant’s entitlement to the necessity defense to the absence of
provocation was harmless. We overrule Appellant’s sole point.
III. CONCLUSION
Having overruled Appellant’s sole point, we affirm the trial court’s
judgments.
/s/ Mark T. Pittman
MARK T. PITTMAN
JUSTICE
PANEL: MEIER, GABRIEL, and PITTMAN, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 1, 2018
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