ERIC DEWAYNE BLAYLOCK v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed August 2, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00170-CR
............................
ERIC DEWAYNE BLAYLOCK
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-19646-W
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OPINION
Before Chief Justice Thomas and Justices Wright and Maloney   See Footnote 1 
Opinion By Justice Maloney
        A jury convicted Eric Dewayne Blaylock of possession of a firearm by a felon. The trial court found both enhancement paragraphs true and sentenced appellant to five years' confinement in the Texas Department of Criminal Justice, Institutional Division and an $800 fine. In one point of error, appellant contends the trial court abused its discretion in denying appellant's requested jury instruction of necessity. We affirm the trial court's judgment.
 
 
NECESSITY
 
        In his sole point of error, appellant argues his testimony that he feared for his life and had to protect himself from the danger of another attack justified his arming himself. And that justification was sufficient for the trial court to instruct the jury on “necessity.” The trial court's failure deprived the jury of the “opportunity to accept or reject appellant's defense.” The State responds that the evidence did not show that appellant believed his possessing the firearm was “immediately necessary to avoid imminent harm.”
 
1. Standard of Review
 
        We review evidence supporting a defense in the light most favorable to the defendant. Pennington v. State, 54 S.W.3d 852, 856 (Tex. App.-Fort Worth 2001, pet. ref'd). When reviewing jury charge error, we must determine if error actually exists in the jury charge and, if we find error, whether it harmed appellant. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). “If appellant [objected], we reverse if we find any actual harm, regardless of the degree.” Anderson v. State, 11 S.W.3d 369, 374 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd). We review the record to determine if “a defendant suffered actual, [not] theoretical, harm.” See Morris v. State, 67 S.W.3d 257, 261 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd) (citing Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994)). In assessing actual harm, we must examine the harm “in light of the entire jury charge; the state of the evidence, including the contested issues and weight of probative evidence; the argument of counsel; and any other relevant information revealed by the record of the trial as a whole.” Frost v. State, 25 S.W.3d 395, 400 (Tex. App.-Austin 2000, no pet.) (citing Alamanza, 686 S.W.2d at 171).
2. Applicable Law
 
        The penal code justifies otherwise criminal conduct as necessary if:
 
(1) the actor reasonably believed the conduct is immediately necessary to avoid imminent harm;
 
 
 
(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards or 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 (Vernon 2003). The legislature did not exclude the necessity defense to the offense of possession of a firearm by a felon. See Vasquez v. State, 830 S.W.2d 948, 950 (Tex. Crim. App. 1992) (per curiam); see also Tex. Pen. Code Ann. § 46.05 (Vernon Supp. 2006). Appellant must admit committing the offense charged to use necessity as a justification. Aldrich v. State, 53 S.W.3d 460, 468 (Tex. App.-Dallas 2001), aff'd, 104 S.W.3d 890 (Tex. Crim. App. 2003). Appellant, however, “must establish he reasonably believed his conduct was immediately necessary to avoid imminent harm.” Id. (citing Maldonado v. State, 902 S.W.2d 708, 712 (Tex. App.-El Paso 1995, no pet.)).
        Appellant is entitled to a jury instruction on a defensive issue if the evidence raises each element of the defense. See Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). It matters not that the evidence may be either “strong, weak, contradicted, unimpeached, or unbelievable.” Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993). But, this evidence must raise the issue of “immediately necessary to avoid imminent harm.” Tex. Pen. Code Ann. § 9.22(1). “[I]mminent harm contemplates a reaction to a circumstance that must be the result of a 'split-second decision [made] without time to consider the law.'” Stefanoff v. State, 78 S.W.3d 496, 500-01 (Tex. App.-Austin 2002, pet. ref'd). Fear in a high crime area, in and of itself, does not rise to necessity to avoid imminent harm to justify unlawfully carrying a handgun. See Garcia v. State, 972 S.W.2d 848, 849 (Tex. App.-Beaumont 1998, no pet.).
3. The Evidence
 
        Appellant testified that he was at his grandmother's house, who lived near the train station. On his way to the store to buy cigarettes, he saw two men arguing. One man was chasing the other, who “cut off” towards the train station. When appellant left the store, he saw the man, who had been chasing the first man, talking with a Dart Police Officer. The officer called to appellant and asked the man to whom he was talking if appellant was the one he was chasing. That man told the officer, “[no], it wasn't [appellant]” And appellant got mad and cussed at the officer. This lead to appellant being questioned if he had been drinking and if he had a weapon. Appellant answered both questions affirmatively.
        On cross, appellant testified that his grandmother gave him a gun to carry because he had been robbed in that same area twice before   See Footnote 2 . The gun was not loaded, he intended to use it for scare tactics. He stated that usually he did not carry a gun to the store, but he was going to his “daddy club.”   See Footnote 3 
4. Application of Law to the Facts
 
        At the conclusion of the evidence, appellant requested a jury instruction on the defense of necessity. The State opposed the requested charge, arguing that Vasquez did not apply and appellant had not produced evidence that he was in fear of imminent harm. We disagree that Vasquez does not apply. See Vasquez, 830 S.W.2d at 950. We, however, agree that no testimony shows that appellant carried a gun in response to “imminent” harm that required a “split-second” decision.         Although appellant's brief recites that he “saw two suspicious men” outside, appellant did not testify that he saw these men before he left the house. Rather, he was carrying the gun while walking to the store when he saw the “suspicious” men. Reviewing the evidence in the light most favorable to the defense, the trial evidence did not raise each element of the necessity defense. The trial court did not err in denying appellant's requested instruction.
        We affirm the trial court's judgment.
 
                                                          
                                                          FRANCES MALONEY
                                                          JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47         Moreover, our reading of the record shows that appellant made the two-pronged objection required to preserve error.
 
 
Footnote 1 The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 The record shows that appellant testified to being robbed both once and twice.
Footnote 3 The record contains no testimony that explains what appellant meant by “daddy club.”