Reuben Fuentes v. The State of Texas--Appeal from 266th District Court of Erath County

Opinion filed March 16, 2006

In The

Eleventh Court of Appeals

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   No. 11-05-00003-CR

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   REUBEN FUENTES, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 266th District Court

Erath County, Texas

Trial Court Cause No. CR 11990

O P I N I O N

The jury convicted Reuben Fuentes of assault and assessed punishment at ten years confinement.[1] We affirm.

The victim testified that in May 2004 she was married to appellant. On the day of the assault, the victim and appellant went to a family gathering at appellant=s sister=s house. Appellant and the victim were asked to leave the gathering because appellant had been drinking. The victim testified that as they left she was driving her pickup because appellant was intoxicated. Appellant hit the victim in the head as she was driving and threw her glasses out of the window. The victim stopped the pickup and got out to retrieve her glasses. Appellant moved to the driver=s seat of the pickup and drove away. The victim testified that she started walking back to appellant=s sister=s house when appellant drove toward her. The victim hid behind a road sign, and appellant drove through the sign.

The victim testified that she convinced appellant to let her drive and that she attempted to go back to his sister=s house. The victim stopped the pickup in the driveway of a neighbor of appellant=s sister and honked the horn. Appellant hit the victim in the head with his fists causing extensive bruising and bleeding. He also loosened the victim=s teeth when he hit her. The neighbor testified that she called 9-1-1 upon hearing the victim scream for help and honk the horn on her pickup. The victim testified that some men came and pulled appellant out of the pickup and that she left the scene and drove to her house. Tommy Williford, with the Dublin Police Department, testified that he investigated the offense and that his investigation supported the victim=s version of the events.

Appellant testified at trial that, as he and the victim left the family gathering, he realized the victim was intoxicated. Appellant stated that the victim could not Akeep her eyes on the road.@ Appellant asked the victim to return to his sister=s house because the victim was too intoxicated to drive. After they pulled into the carport, appellant attempted to get out of the pickup, and the victim started to drive away. Appellant got back into the pickup, and they drove Aabout a block@ down the street. Appellant testified that he attempted to take the keys from the victim to prevent her from driving while intoxicated and injuring herself or someone else. Appellant said that he slapped the victim Aa couple of times@ and that the two wrestled for the keys.

In his sole point of error, appellant argues that the trial court erred in refusing his requested instruction on the defense of necessity. An accused has the right to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the evidence.Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999); Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). If the evidence, viewed in a favorable light, does not establish the defensive issue, an instruction is not required. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984).

Tex. Pen. Code Ann. ' 9.22 (Vernon 2003) defines the defense of necessity and provides that conduct is justified 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.

A Areasonable belief@ is one that would be held by an ordinary and prudent person in the same circumstances as the actor. Tex. Pen. Code Ann. ' 1.07(42) (Vernon Supp. 2005); Johnson v. State, 650 S.W.2d 414 (Tex. Crim. App. 1983); Brazelton v. State, 947 S.W.2d 644, 648 (Tex. App.CFort Worth 1997, no pet.). A defendant=s belief that conduct was immediately necessary to avoid imminent harm may be deemed unreasonable as a matter of law if undisputed facts demonstrate a complete absence of immediate necessity or imminent harm. Arnwine v. State, 20 S.W.3d 155, 159 (Tex. App.CTexarkana 2000, no pet.); Brazelton, 947 S.W.2d at 648 49.

Appellant testified that he slapped the victim to prevent her from driving while intoxicated. Appellant stated that, when he attempted to take the keys from the victim, the victim put the keys Aunderneath her shirt and from her - - from her shirt it went down to her pants.@ Appellant said that he and the victim wrestled for the keys for twenty minutes. At the time appellant assaulted the victim, the vehicle was not moving and the keys were not in the ignition. Appellant=s testimony did not show that he reasonably believed he must immediately assault the victim to prevent imminent harm. The trial court did not err in refusing appellant=s requested instruction on necessity. Appellant=s sole point of error is overruled.

The judgment of the trial court is affirmed.

March 16, 2006 JIM R. WRIGHT

Do not publish. See Tex. R. App. P. 47.2(b). CHIEF JUSTICE

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.

[1]An offense under Tex. Pen. Code Ann. ' 22.01(a)(1) (Vernon Supp. 2005) is a Class A misdemeanor. However, the law in effect at the time of this offense stated that, if the offense is committed Aagainst a member of the defendant=s family or household, if it is shown on the trial of the offense that the defendant has been previously convicted of an offense against a member of the defendant=s family or household under this section,@ the offense is a third degree felony. Former Tex. Pen. Code ' 22.01(b)(2) (2003).