Fred Russell, Jr. v. State , 2001 Tex. App. LEXIS 1501 ( 2001 )

Fred Russell Jr. v. State of Texas

  IN THE

TENTH COURT OF APPEALS

No. 10-99-073-CR

     FRED RUSSELL, JR.,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 26,879

DISSENTING OPINION

      I agree with the majority that the trial court’s instruction on the necessity defense constituted error. I disagree, however, with the analysis of the harm that flowed from this erroneous instruction. Because I believe that Russell suffered “some” harm as a result of the charge error, I would reverse his conviction.

Harm from preserved charge error

      When a complaint about an error in the charge is properly preserved, reversal is required if the error caused “some” harm to the accused. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon Supp. 2000); Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)). “In the context of Almanza, supra, and Article 36.19, supra, the presence of any harm, regardless of degree, which results from preserved charging error, is sufficient to require a reversal of the conviction. Cases involving preserved charging error will be affirmed only if no harm has occurred.” Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). When we are evaluating whether charge error caused harm to the accused, we consider: (1) the entire jury charge; (2) the evidence produced at trial, the contested issues, and the weight of the probative evidence; (3) the attorney’s arguments; and (4) any other relevant information revealed by the record of the trial as a whole. Ovalle, 13 S.W.3d at 786 (quoting Almanza, 686 S.W.2d at 171). Furthermore:

We do not resolve the issue by asking whether the appellant met a burden of proof to persuade us that he suffered some actual harm . . . . No party should have a burden to prove harm from an error, and there ordinarily is no way to prove “actual” harm . . . . [“]In evaluating what effect, if any, an error had on the jury’s verdict, the appellate court may look only to the record before it. The function of the party carrying the burden is simply to suggest, in light of that record, how prejudice may or may not have occurred. At that point, the court makes its own assessment as to what degree of likelihood exists as to that prejudicial or non-prejudicial impact, and then applies to that assessment the likelihood-standard of the particular jurisdiction.”

Ovalle, 13 S.W.3d at 787 (quoting Wayne R. Lafave & Jerold H. Israel, Criminal Procedure 1165 (2d ed.1992)).

First factor: the jury charge itself

      The analysis starts with the jury charge itself. The portion of the charge instructing the jury on Russell’s necessity defense provided:

You are instructed that conduct of a person is justified if that person reasonably believes the 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.

The term “conduct” means an act or omission and its accompanying mental state.

A “reasonable belief” means a belief that would be held by an ordinary and prudent person in the same circumstances as the actor.

A reasonable belief means a belief that would be held by an ordinary and prudent man in the same circumstances as the defendant.

This defense of justification or necessity is not available if the risk of eminent harm reasonably appreciated by the actor has ceased to exist at the time the alleged unlawful conduct occurred.

      The court’s addition to the statutory definition of the necessity defense turns the jury’s attention away from the defendant’s belief and to the existence or nonexistence of the risk of imminent harm. Rather than focusing on the “reasonable belief” of the defendant, as the statute requires, the supplement focuses on a risk that was “reasonably appreciated,” a change in wording that the jury surely noticed. See Ovalle, 13 S.W.3d at 786. This instruction advises the jury that the actor’s belief cannot be reasonable unless there is an actual risk of imminent harm at the time of the unlawful act or omission. Under the last portion of the charge, the defendant’s actions would never be justified, no matter how reasonable the defendant’s belief was, unless the evidence showed that there was an actual risk of imminent harm at the time of the unlawful conduct.

Second factor: the contested issues and the evidence

      The only contested issue at trial was whether Russell was justified in leaving the scene of the collision. To raise the defense of necessity, the defendant must admit to the unlawful conduct. Allen v. State, 971 S.W.2d 715, 720 (Tex. App.—Houston [14th Dist.] 1998, no pet.); Pentycuff v. State, 680 S.W.2d 527, 528-29 (Tex. App.—Waco 1984, pet. ref'd). Russell did so here, but claimed that he was excused from stopping because he was afraid that Tim Cavender would harm him. Russell claimed his fear was based on Cavender’s actions prior to the accident. According to Russell’s testimony at trial, Cavender had bumped Russell’s car, had been driving in such a way as to create the impression that he was trying to run Russell off the road or force him to a complete stop, had been waiving a pistol out of the window of his truck, and caused the collision between their vehicles by “crowding” Russell’s vehicle. A police officer found a fully loaded 9 millimeter semi-automatic handgun in the vicinity of Cavender’s pick-up, which was claimed by Cavender’s family. At the time that Russell left the scene of the accident, Cavender was actually lying immobile in the middle of Highway 31. Russell did not contest whether Cavender was, in fact, injured and lying helpless in the road, but testified that he believed Cavender was sitting uninjured in his truck after the vehicles collided and he was afraid to stay to check on Cavender’s condition.

Third factor: argument by counsel

      The court’s supplement to the necessity defense instruction was specifically addressed by both sides in their closing arguments. Russell’s attorney argued:

[W]e’re going to walk toward this concept of necessity. And like I say when you get the jury charge, the definition is outlined for you and everything, I’m not going to read it to you and everything, but there is one paragraph, this last section says (reading) “This defense of justification of necessity is not available if the risk of imminent harm reasonably appreciated by the actor has ceased to exist at the time of the alleged unlawful conduct.” And the reason I’m putting that in there and everything is because I want you to look at that because for you to deal with the defense of necessity, this charge first of all literally places you in the person of being a reasonable person, a prudent man that probably should be a prudent person, but it says prudent man, but that would include you ladies too. Okay.

You need to get in the mind set and think what would be reasonably prudent if you were that individual, Fred Russell, at 3:00 a.m. on the morning of December 14^th, 1997 on 31 going east. No lights, pitch dark, and some vehicle first of all hits you from behind, evidence supports that. Some individual pulls up beside and reaches something out of the window, a weapon. And Officer Paul’s testimony that obviously this individual cuts you off.

. . .

And then Officer Paul tells you clearly that the decedent cut him off. So is his story consistent? . . . But place yourself in that position and go to this definition. What do you truly think was running through this man’s mind at 3:00 a.m. in the morning? Somebody’s bumping him in the rear, pulling up besides him and reaches something out, and then runs him off the street. What do you think? [Court’s time notice omitted] Is there anyone in here who’s superman? Because that would be the only somebody that’s a reasonable prudent individual that would not realize, was he justified? Was he in fear of imminent harm? And where does it cease? Well, let me tender this to you. The statement given by my client basically says that he saw something that was in the road clumped over, didn’t know what it was. That was the first part of the statement and he’s probably right. If you look at this photo, apparently Mr. Cavender was dressed in dark clothes. And there was no question that it was dark out there.

But you know, Mr. Roberson testified that he pulled up on the scene, that my client was pulling off because there comes an issue of whether or not my client saw the individual as he got hit by the car when he’s coming along. Mr. Robinson’s saying when he came up on the scene, the car came, was pulling off and he got out and he actually tried to flag down the vehicle that ended up running over the decedent.

I guess what I’m trying to put out to you and everything is that when did this harm cease to be a harm to Fred Russell? It probably ceased to be a harm when he probably got maybe 20 miles down the road or got to his home, got in his door.

Now, you may have a problem with how he reacted once he got home. . . . But we do know this, that if there’s anyone in here of the belief that this defense of justification and this man’s belief of imminent harm based on the facts that are supported by their witnesses to the fact that he ran him off the road, supported by their officer to the fact that a gun was found, supported by Mr. Ford to the fact that the car was rear-ended also. That in and of itself would leave you with the vision as to what would you do? . . . What would be your reaction if those events occurred to you? Would you jump up and run out of the car and say, how are you doing?

In reply, the State argued:

And then we get to the second issue about the whole defense of necessity and that is this last paragraph. It says (reading) “The defense of justification and necessity is not available if the risk of imminent harm reasonably appreciated by the actor has ceased to exist at the time the alleged unlawful conduct occurred.” Well, remember we know from the defendant’s statement and from Officer Ivie’s testimony that he saw the man being run over. That he saw him laying in the roadway. He knew he had been involved in a horrible accident. That car, Mr. Cavender’s truck as Kelly Paul told you as the defendant came straight on would have taken up his whole view. All he would have seen come in front of him was a truck and he hit it going, I mean, almost broadside. He’s got to know that he was involved in a bad accident. And that somebody could have been hurt. And, in fact, he saw that somebody and he saw him laying in the road. And he told you about it, and he got up here on the stand and lied to you and said he didn’t and said Ray Ivie was lying.

So you know unless you believe, unless you believe that Officer Ivie got up there on that stand and lied to you and told you that the defendant said that, that he really didn’t. Unless you believe Officer Ivie lied, then you have to believe that the risk of harm, if there was any risk of harm, which I suggest to you that there was not. If was there any risk of harm that it had ceased to exist and the defendant knew that it had ceased to exist at the time that he drove that old Oldsmobile on home to Powell, on home to Kerens or wherever it is that he said he lived, and left that situation there and left that man laying there bleeding and left that car in the middle of the road, that truck in the middle of the road for just any other citizen in the darkness of the night to come upon and hit.

      As I view these arguments, both sides interpreted the court’s instruction to mean that the defense was not available if the risk had actually ended at the time that the unlawful conduct occurred. The focus of the arguments, especially the State’s, was on the actual existence of the threat, not on Russell’s belief concerning the threat.

Assessment of harm

      Part of the jury’s duty in the trial is to decide the credibility of the evidence and whether any defensive theory raised by the evidence has merit. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). “The jury charge must allow the jury to determine the defendant’s guilt in light of the evidence and the law.” Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). In this case, the focus of Russell’s defense was the reasonableness of his belief that he was in danger if he stayed at the scene to assist Cavender. The reasonableness of his belief should have been left as a fact question for the jury to decide. See Granger, 3 S.W.3d at 39; Contreras v. State, 998 S.W.2d 656, 664 (Tex. App.—Amarillo 1999, pet. granted).

      In my view, the trial court instructed the jury that Russell’s belief could not be reasonable if the facts were such that Cavender could not have inflicted the harm Russell feared. Thus, the instruction had the effect of instructing the jury to reject Russell’s necessity defense in light of the fact that Cavender was lying helpless in the middle of the road rather than uninjured in his truck as Russell claimed he thought. Essentially, “[b]y failing to give [an] appropriate instruction, the trial court denied the jury the opportunity to decide this issue.” Granger, 3 S.W.3d at 39; see also Hutch, 922 S.W.2d at 170. Because the only contested issue at trial was whether Russell was justified in leaving the scene, under this record and this instruction, the conviction was a foregone conclusion, and I would find that Russell suffered some harm from the erroneous instruction. Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992); Darty v. State, 994 S.W.2d 215, 220 (Tex. App.—San Antonio 1999, pet. ref’d).

      Finding some harm to Russell from error in the jury charge, I would reverse his conviction and remand this cause for a new trial. Because the majority does not, I respectfully dissent.

                                                                                 BILL VANCE

                                                                                 Justice

Dissenting opinion delivered and filed March 7, 2001

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