Greg William Holden v. State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-00-349-CR

GREG WILLIAM HOLDEN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 1999-360-C

O P I N I O N

The State alleged that, in the course of being arrested, Greg William Holden head-butted one of the arresting officers. He was indicted for intentionally, knowingly, or recklessly causing bodily injury to a police officer, a third degree felony. Tex. Pen. Code Ann. 22.01(b)(1) (Vernon Supp. 2002). A jury convicted him and assessed punishment at four years in prison.

On appeal, Holden complains that:

1. The trial court erred by refusing to give a jury instruction on necessity, in that Holden s actions in struggling with police, during which the head-butting may have occurred, were necessary to keep from being placed in the patrol car where he feared he would have a heart attack.

2. Negative admonishments by the judge to Holden and his father when they testified were, taken together, unfairly prejudicial, because the admonishments implied to the jury that the court did not find the witnesses credible.

3. The court should have allowed testimony about Holden s telephone conservation with a police detective, which occurred just before his arrest, because it was not hearsay.

We will affirm the judgment.

Issue One

Holden requested a jury instruction on the defense of necessity. Tex. Pen. Code Ann. 9.22 (Vernon 1994). This defense justifies criminal conduct when the defendant violates the literal language of a criminal statute to avoid a harm greater than that caused by committing the crime. Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999). Holden said he struggled with the officers, during which he may have head-butted one of them, because he was afraid if he was placed, handcuffed, into the patrol car, he would not get enough air and would have a heart attack. Holden had a history of heart problems.

A trial court must charge the jury on any defensive issue raised by the evidence, "regardless of its substantive character." Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997); McGarity v. State, 5 S.W.3d 223, 226 (Tex. App. San Antonio 1999, no pet.). The evidence supporting the defense need not be persuasive to the court:

A defendant is entitled to an affirmative defensive instruction on every issue raised by the evidence regardless of whether it is strong, feeble, unimpeached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief. The defendant's testimony alone may be sufficient to raise a defensive theory requiring a charge.

Brown, 955 S.W.2d at 279 (quoting Williams v. State, 630 S.W.2d 640, 643 (Tex. Crim. App. 1982)).

This rule is designed to insure that the jury, not the judge, will decide the relative credibility of the evidence. [citation omitted] When a judge refuses to give an instruction on a defensive issue because the evidence supporting it is weak or unbelievable, he effectively substitutes his judgment on the weight of the evidence for that of the jury. [citation omitted] The weight of the evidence in support of an instruction is immaterial.

Id. (quoting Woodfox v. State, 742 S.W.2d 408, 409-10 (Tex. Crim. App. 1987)).

However, to claim necessity, the defendant must first admit violating the criminal statute, after which he offers necessity as a justification. Young, 991 S.W.2d at 838. A defendant cannot establish that his conduct was justified without first admitting that the predicate act, i.e., the crime, occurred. Maldonado v. State, 902 S.W.2d 708, 712 (Tex. App. El Paso 1995, no writ) (citing Trotty v. State, 787 S.W.2d 629, 630 (Tex. App. Fort Worth 1990, no writ)). The merits of the defense are assessed from the standpoint of the defendant; therefore, he must admit to committing the offense and then explain why he did so, i.e., the necessity. Leach v. State, 726 S.W.2d 598, 600 (Tex. App. Houston [14th Dist.] 1987, no writ).

Here, when asked by the prosecutor: Did you hit anybody s head with your head?, Holden answered: Not at all, that I m aware of, no. sir. However, the next day, when asked by his own counsel: [I]s it possible that, at that time, that you collided heads with Officer Etchison?, Holden replied: It s possible. [Q] Do you remember colliding with him? [A] Not at all. But then on cross-examination, Holden again said: To the best of my knowledge, no I didn t [butt heads with the officer]. The State argues this is not a sufficient admission of the offense to invoke the necessity defense. Holden urges us, without authority, to adopt a new rule that when the defendant s testimony is in between admission and denial, the defense may apply.

Holden s argument does not comport with well-established case law. See cases cited supra. The defendant must admit he committed the offense and then offer necessity as a justification. Young, 991 S.W.2d at 839. In Young, the defendant raised issues about whether he had the requisite intent to commit the offense and whether he performed the actions the State alleged. Id. The Court held he was not entitled to claim the protection of necessity. Id. But Holden never unequivocally admitted head-butting the officer. His testimony left open the possibility that he did not. He also called two eye-witnesses to testify they did not see a head-butting. In addition, his lawyer argued in closing that the evidence did not support a finding of a head-butting. These facts do not constitute the kind of admission of the offense required by the necessity defense.

We overrule issue one.

Issue Two

During the testimonies of Holden and his father, the trial court had to repeatedly admonish them not to state hearsay and make non-responsive comments. Eventually the court s admonishments became harsh. Holden complains that the harsh admonishments violated article 38.05 which prohibits the court from mak[ing] any remark calculated to convey to the jury his opinion of the case. Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979).

Holden did not object during trial that the court was commenting on the credibility of the witnesses, nor did he make any other objections about the court s admonishments. We will not review an unpreserved complaint. Tex. R. App. P. 33.1(a).

Alternatively, Holden argues that the court committed fundamental error, and therefore the complaint need not have been preserved. Tex. R. Evid. 103(d). It is true that comments by a judge before the jury which taint the presumption of innocence constitute fundamental error. Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000). However, we have reviewed this record, and although we do not condone all of the comments made in the presence of the jury, we do not find that the court voiced, expressly or impliedly, an opinion about whether Holden committed the crime. Therefore, any error was not fundamental.

We overrule issue two.

Issue Three

Just before he was arrested, Holden was having a conversation on his cell phone with a police detective. He tried to get the arresting officers to talk to the detective, but they refused. At trial, Holden attempted through several witnesses to introduce testimony about his conversation with the detective, but the trial court granted the State s hearsay objections. Holden claims he was not offering the conversation to prove the truth of the matters asserted in it, and therefore it was not hearsay.

Holden did not make an offer of proof, and we do not know from the reporter s record what was said during the conversation. When the complaint on appeal is about the court s exclusion of evidence, error cannot be found unless the appellant made known to the court the substance of the evidence, except when the substance is apparent from the context in which the questions were asked. Tex. R. Evid. 103(a)(2). Neither occurred here. Therefore, the complaint was not preserved, and we will not review it. Tex. R. App. P. 33.1(a)(1)(B).

We overrule issue three.

Conclusion

Having overruled Holden s three issues, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed April 3, 2002

Do not publish

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