Scott, Johnny David v. The State of Texas--Appeal from 394th District Court of Brewster County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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JOHNNY DAVID SCOTT, ) No. 08-01-00388-CR

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Appellant, ) Appeal from

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v. ) 394th District Court

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THE STATE OF TEXAS, ) of Brewster County, Texas

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Appellee. ) (TC# 3595)

O P I N I O N

Johnny David Scott appeals his conviction for injury to an elderly person. A jury found Appellant guilty and assessed his punishment at imprisonment for a term of two years, suspended for two years. We reform the judgment to reflect the correct county of conviction and affirm the judgment as reformed.[1]

FACTUAL SUMMARY

Sixty-seven-year-old JoAnne Kempf lived with Appellant in her home in Terlingua for five to six years. On June 24, 2001, Kempf and Appellant had been drinking with friends during the afternoon and early evening. After their friends left, Appellant and Kempf began discussing whether Appellant should fight a friend. Kempf told Appellant he should not fight because the man was a friend. Appellant suddenly picked up Kempf by the arms, threw her onto the bed, and began slapping her legs and arms. Appellant picked her up again and threw her to the floor, causing pain in her hip. The blows also resulted in bruising on Kempf=s legs and arms. Kempf ran out of the house and drove to La Kiva, an RV park restaurant. She had one drink and left. When she arrived home, Appellant was asleep and she went to bed.

The following morning when Appellant became belligerent, Kempf drove to the home of her daughter, Gay Davidson, who lived approximately one-quarter mile from Kempf=s home. Kempf was distraught and trembling when Davidson saw her. Davidson also noticed that her mother had bruises on her arms and hands and walked with a limp. After Davidson=s husband arrived home from work, they drove Kempf to the Family Crisis Center in Alpine. An advocate at the Family Crisis Center took photos of Kempf=s injuries. The next morning, Davidson drove Kempf to El Paso to catch a plane to California where she stayed with her sister. Kempf remained in California for a month before returning to Alpine and filing assault charges against Appellant. Afterward, Kempf returned to California.

Appellant testified in his own defense, providing a different version of the events of June 24. He did not recall that friends had been at their home. At about 5:30 p.m., Kempf wanted to go to happy hour at La Kiva. Appellant refused to drive her because Kempf had already had so much to drink that she could not walk without assistance and he Adidn=t need another DUI.@ Kempf insisted she would drive and started out of the door. Appellant blocked the door and tried to convince her to lay down for awhile. Kempf would not listen and Appellant walked her backwards to the bed until she sat down. Appellant put her legs up on the bed and held her arms and legs down until she fell asleep. He grabbed her arms only to restrain her and to prevent her from hurting herself. He believed he had held her down for just a few minutes. Appellant denied throwing Kempf on the bed or the floor. The following morning, Appellant noticed that Kempf was angry with him. When he asked her what was wrong, she replied, ADon=t you know?@ and suddenly left the house. Appellant did not hear from Kempf for several weeks. The only telephone conversation occurred when Kempf called Appellant, and upon hearing his voice said, AIf you are there, I am not coming home.@ Kempf quickly hung up the phone. Appellant was unable to find out where Kempf had gone, but he initially believed she was in an alcohol rehabilitation center. Kempf=s son-in-law eventually told Appellant that she was with her sister in California and that he should move out of Kempf=s home.

A grand jury indicted Appellant for three counts of injury to an elderly person. The State abandoned Count III prior to trial. After the close of evidence at the guilt-innocence phase, the State elected to proceed on Count II which alleged that Appellant intentionally and knowingly caused bodily injury to Kempf by hitting her with his hands. The trial court rejected Appellant=s request for a jury instruction on the defense of necessity because Appellant had not admitted the offense alleged in the indictment. The jury found Appellant guilty of Count II.

NECESSITY

In his sole point of error, Appellant argues that the trial court erred in refusing to instruct the jury on the defense of necessity. Upon timely request, a defendant has the right to an instruction on any defensive issue raised by the evidence, whether such evidence is strong or weak, unimpeached or contradicted, regardless of the trial court=s opinion of the credibility of the evidence. See Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996); Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App. 1991). Section 9.22 of the Penal Code provides that the defense of necessity is available for criminal conduct only if (1) the defendant reasonably believes his conduct is immediately necessary to avoid imminent harm, (2) the desirability and urgency of avoiding the harm clearly outweighs the harm sought to be prevented by the law prescribing the conduct, and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise appear. Tex.Pen.Code Ann. ' 9.22 (Vernon 1994). In order for the evidence to support submission of an instruction on necessity, the defendant must admit to the offense but claim justification for having committed the offense because of other facts. Young v. State, 991 S.W.2d 835, 839 (Tex.Crim.App. 1999); McGarityv. State, 5 S.W.3d 223, 230 (Tex.App.--San Antonio 1999, no pet.); Maldonado v. State, 902 S.W.2d 708, 712 (Tex.App. El Paso 1995, no pet.). Here, Appellant admitted grabbing Kempf=s arms and holding her down on the bed in order to prevent her from driving while intoxicated but he never admitted striking her with his hands. Because Appellant failed to admit to the charged offense, he was not entitled to the requested instruction. See McGarity, 5 S.W.3d at 230 (defendant, who never admitted to charged conduct of hitting victim=s face with his hand, was not entitled to assert defense of necessity to assault charges, despite defendant=s allegations that he threw victim on bed to prevent her from committing suicide by jumping out window). Accordingly, we overrule Appellant=s sole point of error and affirm the judgment of the trial court.

October 24, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1] The judgment erroneously stated Presidio County.