Torres, Juan v. The State of Texas--Appeal from 23rd District Court of Brazoria County

Affirmed and Memorandum Opinion filed December 23, 2004

 Affirmed and Memorandum Opinion filed December 23, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00900-CR

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 JUAN TORRES, Appellant

V.

 THE STATE OF TEXAS, Appellee

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On Appeal from 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 44,039

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M E M O R A N D U M O P I N I O N

In this appeal from a jury conviction for possession of a deadly weapon in a penal institution, we review whether the trial court erred when it refused to charge the jury on the defense of necessity. Because we conclude there is no evidence in support of the defense, we affirm.

I. Factual and Procedural Background

Appellant is an inmate at the Darrington Unit of the Texas Department of Criminal Justice. In August 2002, while escorting appellant from his cell to the shower facilities, corrections officers discovered a seven-and-one-half-inch homemade knife, or Ashank,@ in appellant=s boot. A jury convicted appellant of possession of a deadly weapon in a penal institution and the trial court assessed punishment at 25 years= confinement. This appeal followed.

II. Discussion

In one issue, appellant contends the trial court erred in refusing to submit to the jury a properly requested question on the defense of necessity.

A. Standard of Review

Generally, an accused has the right to an instruction on any defensive issue raised by the evidence and properly requested. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). This entitlement exists regardless of the source of the evidence, its strength, or whether the trial court finds it credible. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996); Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993). However, if the evidence fails to raise a defensive issue, the trial court commits no error in refusing to submit a requested instruction. Kunkle v. State, 771 S.W.2d 435, 443B44 (Tex. Crim. App. 1986). We examine the evidence offered in support of a defensive issue in the light most favorable to the defense. Pennington v. State, 54 S.W.3d 852, 856 (Tex. App.CFort Worth 2001, pet. ref=d).

B. Necessity as a Defense

A successful necessity defense exonerates an accused who engages in unlawful conduct in order to prevent a greater harm. Id. The Texas Penal Code authorizes necessity as a defense to a criminal charge if:

(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

(2) 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; and

(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

Tex. Pen. Code Ann. ' 9.22(1)B(3) (Vernon 2004). Subsections (1) and (2) must be satisfied by evidence, while subsection (3) is a question of law. Leach v. State, 726 S.W.2d 598, 600 (Tex. App.CHouston [14th Dist.] 1987, no pet.). Thus, to support a necessity defense an appellant must show he reasonably believed his actions were necessary to avoid imminent harm. Ford v. State, 112 S.W.3d 788, 793 (Tex. App.CHouston [14th Dist.] 2003, no pet.). AImminent harm@ involves an emergency situation which requires the actor to make a split-second decision without time to consider the law. Pennington, 54 S.W.3d at 857. A Areasonable belief@ is one that would be held by an ordinary, prudent person in the same circumstances as the actor. Tex. Pen. Code Ann. ' 1.07(a)(42) (Vernon 2004). Reasonableness is a question of fact and is viewed from the standpoint of the accused at the time he acted. Fitzgerald v. State, 782 S.W.2d 876, 885 (Tex. Crim. App. 1990).

C. Does the Evidence Raise the Defense?

Appellant claims he raised necessity as a defensive issue when he testified at trial that he feared for his life while being escorted to the showers and that he believed his conduct was immediately necessary to avoid imminent harm. Appellant also testified that approximately three days before he was found in possession of the shank, two other inmates had threatened him while he showered. Appellant stated the two men cursed at him and tried to force the shower door open, and that one of them was armed with a weapon. The two inmates were unable to open the door and returned to their cells apparently upon hearing a corrections officer approach the area. Appellant also stated he had not communicated the incident to anyone other than his attorney.

Appellant correctly states that other courts of appeals have applied the defense of necessity to a charge of possession of a deadly weapon in a penal institution, and relies on Rivera v. State, 948 S.W.2d 365 (Tex. App.CBeaumont 1997, no pet.) in support of his argument.

In Rivera, the appellant was under physical assault by two other inmates and armed himself with a club made from a sock with a combination lock inside it. Id. at 368B69. The court noted that Rivera was unarmed and faced Aimminent@ harm from an armed aggressor with no hope of rescue from corrections officers. Id. at 370. The court stated that in such a situation, A[i]t almost goes without saying that such an inmate would naturally find it >immediately necessary= to grab any implement available to assist him in what is apparently the daily prison ritual of survival of the fittest.@ Id. The court determined that under those facts, the accused was entitled to have necessity submitted to the jury. Id. at 371.

We cannot agree with appellant that the facts of this case are sufficient to show that he reasonably believed possession of the shank was necessary to avoid imminent harm. Appellant testified he was typically escorted to and from the shower by at least one and as many as three corrections officers.[1] Further, appellant showered alone in a locked cell and the inmates who originally threatened him were unable to reach him through the locked door. Also, the shank was seized three days after appellant was allegedly threatened, and no evidence was adduced that any inmates were present or threatening appellant with assault the day the shank was seized. Appellant=s situation does not qualify as one in which quick action was necessary to avoid imminent harm. Cf. Rivera, 948 S.W.2d at 368B70; see also Pennington, 54 S.W.3d at 857. Accordingly, we hold these facts fail to show that appellant was in danger of Aimminent@ harm on the day he possessed the shank. Appellant=s positionCthat a prior threat of violence creates a situation where possessing a deadly weapon is a necessityCwould give virtually every inmate a justifiable reason to possess a prohibited weapon. See Garcia v. State, 972 S.W.2d 848, 849B50 (Tex. App.CBeaumont 1998, no pet.) (reaching the same conclusion). In sum, because appellant has not shown evidence of imminent harm, the trial court did not err in refusing to submit the defense of necessity to the jury. See Tex. Pen. Code Ann. ' 9.22(1) (Vernon 2004);[2] Arnwine v. State, 20 S.W.3d 155, 160 (Tex. App.CTexarkana 2000, no pet.) (holding appellant=s conduct can be deemed unreasonable as a matter of law if undisputed facts demonstrate a complete absence of immediate necessity or imminent harm). Appellant=s sole issue is overruled, and we affirm the trial court=s judgment.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed December 23, 2004.

Panel consists of Justices Yates, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] In fact, appellant was in the presence of three officers when the shank was discovered.

[2] As appellant failed to meet the requirements of Penal Code section 9.22(1), it is unnecessary to discuss subsections (2) and (3). See Tex. Pen. Code Ann. ' 9.22 (Vernon 2004).