Holcomb, Ronald Charles v. The State of Texas--Appeal from 179th District Court of Harris County

Affirmed and Memorandum Opinion filed February 1, 2005

 Affirmed and Memorandum Opinion filed February 1, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01414-CR

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RONALD CHARLES HOLCOMB, Appellant

V.

 THE STATE OF TEXAS, Appellee

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On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 938,482

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

Appellant, Ronald Charles Holcomb, was convicted by a jury of the offense of evading detention, and the court sentenced him to thirty five years= confinement. In five issues, appellant contends (1) the trial court erred in failing to instruct the jury on the defensive issue of necessity, (2) appellant received ineffective assistance of counsel at trial, and (3) the evidence was legally and factually insufficient to support his conviction. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

I. Background

On February 5, 2003, Officer Berry of the Houston Police Department was on patrol when he observed appellant driving a vehicle that was not displaying a rear license plate. Officer Berry stopped appellant and approached the car. Officer Berry observed that a female passenger was riding with appellant. He also noticed that appellant was moving around in the seat and would not keep his hands still. Officer Berry asked appellant for his driver=s license and proof of insurance, but appellant responded that he did not have either. Appellant then reached into his left pocket. Officer Berry thought appellant might have been reaching for a weapon, so he drew his gun and told appellant to slowly remove his hand from his pocket. Appellant did not comply, but instead sped away in his car.

Officer Berry got into his patrol car and pursued appellant. Appellant eventually pulled into the driveway of a residence. When Officer Berry pulled up to appellant=s car, he saw the female passenger standing near the car. The female passenger indicated that appellant had gone to the back of the home. Officer Berry drew his gun and went to look for appellant. He saw appellant running and yelled at appellant to Astop.@ Appellant continued to run, so Officer Berry chased and eventually caught him. Appellant knocked the gun out of Officer Berry=s hand, and a struggle ensued. Officer Berry continued to struggle with appellant for several minutes before backup officers arrived at the scene and helped subdue appellant. Appellant was handcuffed and escorted away in a patrol car.

II. Jury Instruction

In his first issue, appellant contends the trial court erred by failing to instruct the jury on the defensive issue of necessity. Appellant contends he was entitled to an instruction on necessity because the record establishes appellant fled from Officer Berry because he had a reasonable fear he was about to be harmed.

To preserve error on a defensive charge, an appellant must object or make a specific request for the instruction. Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App. 1998). In this case, appellant did not object or request a defensive charge on necessity. Therefore, appellant waived any error. We overrule appellant=s first issue.

III. Assistance of Counsel

In his second and third issues, appellant contends he was denied effective assistance of trial counsel under both the federal and Texas constitutions. Specifically, appellant contends trial counsel was ineffective for failing to object to the trial court=s omission of an instruction on the law of necessity in the jury charge.

The right to effective assistance of counsel is guaranteed by both the federal and Texas constitutions. See U.S. Const. Amend. VI; Tex. Const. Art. I, ' 10. The standard for testing ineffective assistance of counsel claims was established in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the Texas Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).[1] To demonstrate ineffective assistance of counsel, a defendant must show (1) counsel=s performance fell below an objective standard of reasonableness under prevailing standards of professional norms; and (2) there is a reasonable probability that, but for counsel=s deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 668; Rodriquez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995). In considering the first prong, we indulge a strong presumption that counsel=s actions fell within the range of reasonable professional behavior. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). To overcome this presumption, an allegation of ineffectiveness must be firmly demonstrated in the record. Id. We assume counsel=s actions and decisions were reasonably professional and they were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

In the present case, nothing in the record reveals counsel=s trial strategy with regard to the necessity defense. In most cases, a silent record which provides no explanation for counsel=s actions will not overcome the strong presumption of reasonable assistance. Rylander v. State, 101 S.W.3d 107, 110B11 (Tex. Crim. App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Without a record to explain the motivation behind counsel=s failure to object to the jury charge, we cannot conclude appellant has met his burden of demonstrating by a preponderance of the evidence that counsel=s performance was deficient. We overrule appellant=s second and third issues.

IV. Sufficiency of the Evidence

In his fourth and fifth issues, appellant contends the evidence is legally and factually insufficient to support his conviction for evading detention. Specifically, appellant contends the evidence is insufficient because the record shows that he was acting out of necessity in fleeing from officer Berry.

In reviewing the legal sufficiency of evidence to support a conviction, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). In conducting our review, we do not reevaluate the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

In reviewing the factual sufficiency of evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004). The only question to answer in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. There are two ways evidence may be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence supporting and contradicting the verdict or judgment, weighing all the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484B85. In a factual sufficiency review, we must address the most important and relevant evidence that supports the appellant=s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

The sufficiency of evidence is to be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Appellant contends that the hypothetically correct jury charge in this case would have included an instruction on the defense of necessity. Appellant contends that when measured against this hypothetically correct charge, the evidence is insufficient to support his conviction because the State failed to disprove the necessity defense beyond a reasonable doubt. See Stefanoff v. State, 78 S.W.3d 496, 500 (Tex. App.CAustin 2002, pet. ref=d) (holding that necessity is a statutory defense, and if the defendant presents some evidence on each element of the defense, then the burden shifts to the State to disprove the defense beyond a reasonable doubt).

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 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 justification claimed for the conduct does not otherwise plainly appear. Tex. Pen. Code Ann. ' 9.22(1)B(3) (Vernon 2004). To raise the defense of necessity, a defendant must specifically admit to the offense. Young v. State, 991 S.W.2d 835, 838B89 (Tex. Crim. App. 1999); Auston v. State, 892 S.W.2d 141, 145 (Tex. App.CHouston [14th Dist.] 1994, no pet.). A defendant must also show that he reasonably believed his conduct was immediately necessary to avoid imminent harm. Tex. Pen. Code Ann. ' 9.22(1). However, in this case, appellant never admitted that he committed the offense, nor did he offer any evidence to show he reasonably believed his conduct was imminently necessary to avoid imminent harm. Therefore, the necessity defense was never raised and should not have been part of a hypothetically correct jury charge. Thus, the State was not required to disprove the defense of necessity beyond a reasonable doubt.

To sustain appellant=s conviction for evading detention, the State was only required to prove beyond a reasonable doubt that appellant intentionally fled from a person he knew was a police officer attempting lawfully to arrest or detain him. Tex. Pen. Code Ann. ' 38.04 (Vernon 2003). Intent is a fact question for the jury and may be inferred from the acts and conduct of the accused. Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999).

The record shows that Officer Berry stopped appellant for a traffic offense. When Officer Berry approached the car, he observed that appellant was moving around in the seat and would not keep his hands still. When appellant reached into his pocket, Officer Berry thought appellant might be reaching for a weapon. Therefore, Officer Berry drew his gun and instructed appellant to slowly remove his hand from his pocket. Appellant refused to comply with this order, sped away in his car, and was eventually apprehended after a prolonged struggle with Officer Berry.

The evidence supports the reasonable conclusion that appellant knew officer Berry was a police officer and intentionally fled from Officer Berry to evade detention. Viewed under the appropriate standards, we conclude the evidence is legally and factually sufficient to support appellant=s conviction for evading detention. Appellant=s fourth and fifth issues are overruled.

Accordingly, the judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed February 1, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

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

[1] Appellant requests that we re-adopt the standard previously established in Ex Parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980) for reviewing ineffective assistance claims under the State constitution. However, we decline to do so.