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Date: 10-24-2020
Case Style:
Frank Enns, Jr. v. The State of Texas
Case Number: 01-19-00234-CR
Judge: Sherry Radack
Court: Court of Appeals
For The
First District of Texas
Plaintiff's Attorney: Elton Mathis
Bennett Dodson
Robin Whitney
Defendant's Attorney: Free National Lawyer Directory
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Hempstead, Texas - Criminal defense lawyer represented defendant Frank Enns, Jr. charged with possession with intent to deliver methamphetamine in the amount of 400 grams or more.
The Surveillance
Captain R. Garrett, an officer with the Waller County Sheriff’s Office with
over 29 years of experience in narcotics, testified that on August 31, 2016, he
received a request to assist in a multi-agency narcotics investigation underway near
Pattison, Texas. The agencies involved with this task force included the Houston
Police Department Narcotics Division, the Harris County Sherriff’s Office Narcotics
Division, the Texas Department of Public Safety, and the Drug Enforcement
Administration. Captain Garrett met with task force agents conducting this
investigation and learned that, based on information provided by a confidential
informant, they were tracking a large shipment of methamphetamine coming from
Mexico and believed to be bound for Miami and Chicago. Based on the informant’s
information, the task force believed that the shipment had been delivered to a house
thought to be a drug distribution point in Waller County and was awaiting further
transportation out of the county. The agents asked Garrett for assistance in
surveilling the residence and in conducting a traffic stop. The task force deployed a
3
helicopter unit to monitor the residence they believed had received the shipment of
methamphetamine.
The helicopter surveillance unit observed the suspected residence, later
identified by appellant to be a residence belonging to “Tivo,” an acquaintance of
appellant’s, for several hours. The residence was located on a main road with only
two ways out to the highway. During this time, officers from the helicopter unit
provided Captain Garrett and other task force members with a description of the
property—“a single wide trailer house, running from north to south and sitting
behind it about 20 yards there’s a tin shed that has a car partially backed up to it.”
The helicopter unit also provided a description of a vehicle at the property: a white
Crown Victoria with tinted windows. The helicopter unit saw two Hispanic males
repeatedly moving about the property, entering and leaving the house, as well the
shed on the property. Captain Garrett also testified that the helicopter unit saw the
two males periodically leave the residence and engage in four or five practice or
“heat” runs in the Crown Victoria in an apparent attempt to determine if they were
being followed.
The helicopter unit then reported to the task force that the two men had loaded
packages into the trunk of the Crown Victoria, left the property, shut the gate, and
headed onto the highway. Captain Garrett relayed this information to his local
officers, including Waller County Sheriff’s Office Deputy B. Mace, who he had
4
previously positioned on one of the only two ways from the property to the highway.
Captain Garrett also informed his officers to be on the lookout for a white Crown
Victoria with dark tinted windows, with two Hispanic males inside, possibly
transporting narcotics.
The Stop
Deputies Mace and R. Horton were in one of the units positioned to intercept
the suspected vehicle. Deputy Mace testified that he saw a white Crown Victoria
with tinted windows that matched the provided description and that he began
following the car. Deputy Mace testified that he accelerated slightly, to
approximately 65-70 miles per hour, to catch up to the Crown Victoria so that he
could run the license plate. As Deputy Mace approached the Crown Victoria, and
while he was still 10-15 car-lengths behind, it crossed over the “fog line” and onto
the right shoulder of the road. Believing the car crossed onto the shoulder without
apparent cause or reason, Deputy Mace then activated his lights and initiated a traffic
stop.
After the stop, Deputy Mace exited his patrol car, approached the Crown
Victoria, and asked the driver to step out. After speaking with the driver, Deputy
Mace learned there was another person in the car that he had not previously seen
because of the car’s dark window tint. Deputy Mace informed the two suspects that
he had pulled them over for driving on the shoulder of the road. Deputy Mace asked
5
the suspects various questions about where they were going, whether they possessed
weapons, or if they had other contraband.
Deputy Mace identified the driver of the Crown Victoria as appellant. Deputy
Mace noticed that appellant had a “[s]urprised, nervous demeanor.” Soon after
exiting the Crown Victoria, appellant and the other suspect began conversing in
Spanish, though Deputy Mace could not understand what they were saying. To
prevent them from conversing any further in Spanish, Deputy Mace separated
appellant from the other suspect.
The Search of the Vehicle
As part of his investigation, Deputy Mace requested consent to search the
Crown Victoria, which appellant granted. Deputies Mace and Horton searched the
trunk, and in a hidden compartment behind the lining of the trunk, found a large
amount of narcotics. At this point, Deputy Mace arrested appellant and took him into
custody. Appellant did not make any statements to the deputies that he was scared,
coerced, or afraid for his life. The deputies did not find a weapon on appellant, on
the passenger, or in the car.
The suspected narcotics were then transported to the Sheriff’s Office to be
tested. The test result was positive for the presence of methamphetamine and at an
aggregate weight of 2,423.84 grams.
6
Motion to Suppress
Before trial, appellant moved to suppress the evidence obtained from the
search of the car, arguing that Deputy Mace lacked reasonable suspicion to stop
appellant’s car. Specifically, appellant argued that he did not commit any traffic
infractions that justified the stop, nor did the tip from a confidential informant
provide the requisite reasonable suspicion for the stop. After hearing testimony from
Deputy Mace and Captain Garrett related to the surveillance and the subsequent stop,
the trial court denied the motion and made the following findings on the record:
THE COURT: Well, one of the things that I’m instructed to do
through case law and, frankly, the statutes and Court of Criminal
Appeals, too, is look at the totality of the situation. And I do find that
the information from the surveillance team to Captain Garrett was
reasonable as it came from officers familiar to Captain Garrett and
known to be reliable.
I also find that the instructions from a supervising officer, in this
case it was then Lieutenant Garrett, now Captain Garrett, to Corporal
Mace was reasonable. Those instructions are passed all of the time, used
in normal police procedures.
I do find that the information provided was sufficient to alert an
officer to be observant. And I do find that the defendant’s vehicle did
violate a section of the Transportation Code by driving on the shoulder.
And I find that the stop was, therefore, justified.
And, therefore, from the totality of the circumstances, the Court
does find the stop being justified with the description previously given
and it supports the officer’s reasonable suspicion of criminal activity,
your motion to suppress is denied.
7
Appellant’s Trial Testimony
At trial, appellant testified in his own defense. He testified that, on August 31,
2016, he worked a full day as a mechanic and came home about 2:30 in the
afternoon. After he arrived home, a man named Javier Bartiga Rodriguez, known to
appellant as Tivo, knocked on appellant’s door. Appellant knew Tivo because he
had done some side jobs for Tivo, including working on Tivo’s various cars. Tivo
asked appellant for a ride to the outlet mall, but once they were in appellant’s car,
Tivo said he needed to stop by his house to change.
When they arrived at Tivo’s house, Tivo took appellant to a shed where he
revealed several large packages that appellant recognized were narcotics. Tivo
pulled out a gun and informed appellant that he would drive him and the drugs to
wherever Tivo directed. Appellant testified that he felt threatened because Tivo had
“plenty of places to bury me.” At the same time, appellant testified he began
receiving texts from his family asking about his whereabouts, but appellant refused
to answer them for fear it would put his family at risk. After the car was loaded, they
left and appellant began driving while Tivo told him where to go. Not long after
leaving Tivo’s residence, appellant was stopped by Deputy Mace.
Motion to Suppress
In his first issue, appellant argues that the trial court abused its discretion by
denying his motion to suppress evidence from the traffic stop. Appellant argues that
8
the evidence presented at the hearing on the motion to suppress demonstrated that
he did not commit any traffic infraction to justify the stop. Moreover, the
surveillance and the uncorroborated tip from a confidential informant did not
provide the reasonable suspicion necessary to stop his car. Therefore, appellant
argues that Deputy Mace lacked reasonable suspicion to stop appellant and any
subsequent evidence from the stop, including from the consensual search, should
have been excluded.
A. Standard of Review
“A trial court’s ruling on a motion to suppress is reviewed on appeal for abuse
of discretion.” Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). A trial
court’s ruling should be reversed only if it is arbitrary, unreasonable, or “outside the
zone of reasonable disagreement.” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim.
App. 2014). In a motion to suppress hearing, the trial court is the sole trier of fact
and judge of the credibility of the witnesses and the weight to be given their
testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Accordingly,
the judge may believe or disbelieve all or any part of a witness’s testimony even if
that testimony is not controverted. Id. This is so because it is the trial court that
observes firsthand the demeanor and appearance of a witness, as opposed to an
appellate court, which can only read an impersonal record. Id. Although we
generally limit our review to evidence introduced at the suppression hearing, when
9
the parties consensually relitigate the issue at trial, we also consider relevant trial
testimony. Gambini v. State, No. 01-12-00395-CR, 2013 WL 4680380, at *4 (Tex.
App.—Houston [1st Dist.] Aug. 29, 2013, pet. ref’d) (mem. op., not designated for
publication).
When the trial court fails to make explicit findings of fact, we view the
evidence in the light most favorable to the trial court’s ruling and assume that the
trial court made implicit findings of fact that support its ruling so long as those
findings are supported by the record. Id. We will sustain the trial court’s decision if
we conclude that the decision is correct under any applicable theory of law.
Arguellez v. State, 409 S.W.3d 657, 662–63 (Tex. Crim. App. 2013). We use a
bifurcated standard of review to evaluate whether the totality of circumstances is
sufficient to support an officer’s reasonable suspicion of criminal activity. See Abney
v. State, 394 S.W.3d 542, 547 (Tex. Crim. App. 2013). First, we “give ‘almost total
deference to the trial court’s determination of the historical facts that the record
supports,’ and second, we review de novo the trial court’s application of the law to
facts, which do not turn on credibility and demeanor.” Id. (quoting Amador v. State,
275 S.W.3d 872, 878 (Tex. Crim. App. 2009)). Further, “we review de novo whether
the totality of circumstances is sufficient to support an officer’s reasonable suspicion
of criminal activity.” Crain, 315 S.W.3d at 49.
10
B. Applicable Law
The United States and Texas Constitutions protect against unreasonable
searches and seizures. U.S. CONST. amend. IV.; TEX. CONST. art I, § 9. No evidence
obtained in violation of the Constitution or the State of Texas can be admitted as
evidence against the accused at trial. TEX. CODE CRIM. PROC. art. 38.23(a).
Generally, a law enforcement officer must have a warrant based on probable cause
to search or seize an individual. Wright v. State, 7 S.W.3d 148, 150 (Tex. Crim. App.
1999). However, a police officer without a warrant may detain a person briefly if he
has a reasonable suspicion that the person has or is breaking the law. Berkemer v.
McCarty, 468 U.S. 420, 439 (1984); Derichsweiler v. State, 348 S.W.3d 906, 914
(Tex. Crim. App. 2011) (“Under the Fourth Amendment, a warrantless detention of
the person that amounts to less than a full-blown custodial arrest must be justified
by a reasonable suspicion.”).
Thus, there must be a reasonable suspicion for an officer to conduct an
investigative detention. Derichsweiler, 348 S.W.3d at 914. In determining the
reasonableness of the investigative detention, we examine the totality of the
circumstances. Id. For an officer to have a reasonable suspicion, there must be
“specific and articulable facts” that justify the traffic stop from the inception. State
v. Duran, 396 S.W.3d 563, 568–69 (Tex. Crim. App. 2013) (quoting Terry v. Ohio,
392 U.S. 1, 21 (1968)).
11
Reasonable suspicion exists if the officer has specific, articulable facts that,
when combined with rational inferences from those facts, would lead him to
reasonably conclude that a particular person actually is, has been, or soon will be
engaged in criminal activity. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.
2005). This is an objective standard that disregards any subjective intent of the
officer making the stop and looks solely to whether an objective basis for the stop
exists. Id.
When information alleged to support reasonable suspicion comes from an
anonymous source, something more than the just the anonymous tip is required to
provide the reasonable suspicion necessary to make a valid detention. Guevara v.
State, 6 S.W.3d 759, 763 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). Relying
on information received from an informant is acceptable if the informant’s statement
is reasonably corroborated by other matters within the officer’s knowledge. Id.
“[C]orroboration refers to whether the police officer, in light of the circumstances,
confirms enough facts to reasonably conclude that the information given to him is
reliable and a temporary detention is thus justified.” Brother v. State, 166 S.W.3d
255, 259 n.5 (Tex. Crim. App. 2005). There is an inverse relationship between the
reliability of the informant and the amount of corroboration needed to justify the
stop—the less reliable the tip, the more corroborating information is needed.
Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011).
12
Moreover, the detaining officer need not be personally aware of every fact
that objectively supports a reasonable suspicion to detain; rather, “the cumulative
information known to the cooperating officers at the time of the stop is to be
considered in determining whether reasonable suspicion exists.” Derichsweiler, 348
S.W.3d at 914 (quoting Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App.
1987)). “The factual basis for stopping a vehicle need not arise from the officer’s
personal observation, but may be supplied by information acquired from another
person.” Brother, 166 S.W.3d at 257.
Finally, when considering whether a traffic offense gives rise to reasonable
suspicion to support an investigative stop, there is no requirement that a particular
statute actually be violated. See Gajewski v. State, 944 S.W.2d 450, 452 (Tex.
App.—Houston [14th Dist.] 1997, no pet.); Lockett v. State, No. 01-08-00225-CR,
2009 WL 40234, at *3 (Tex. App.—Houston [1st Dist.] Jan. 8, 2009, no pet.) (mem.
op., not designated for publication); see also Garcia v. State, 43 S.W.3d 527, 531
(Tex. Crim. App. 2001) (agreeing that State “need not establish with absolute
certainty that a crime has occurred to show reasonable suspicion”). Rather, an officer
need have only a reasonable basis for suspecting that a person has committed a traffic
offense to initiate a legal traffic stop. See Gajewski, 944 S.W.2d at 452.
13
C. Analysis
Appellant first contends that the tip from the confidential informant received
by the narcotics task force could not have been the basis for reasonable suspicion to
stop appellant’s car because Captain Garrett “could give no indicia of reliability with
respect to the confidential informant.” Without more, he contends, the State may not
rely on this confidential informant to provide the basis for reasonable suspicion to
stop and the trial court erred in denying his motion to suppress. Appellant further
argues that Deputy Mace could not describe an actual traffic violation and, therefore,
was unable to articulate any specific facts on which he could have formed the
reasonable suspicion for the stop.
In this case, we must determine, considering the totality of the circumstances,
whether the record supports the trial court’s conclusion that Deputy Mace had
reasonable suspicion to stop appellant’s car. We first note that the record here shows
that Deputy Mace did not stop appellant’s car solely based on the informant’s tip.
The informant told members of the narcotics task force that the residence in question
was a narcotics distribution house, where narcotics brought in from Mexico were
stored awaiting further distribution to Miami and Chicago. The informant’s
information was verified when, as a result of that information, the task force
(consisting of officers from various agencies) set up surveillance of the residence,
which continued for several hours. During the surveillance, task force members in
14
the helicopter unit saw two Hispanic males repeatedly moving about the property,
entering and leaving the house and shed on the property; engaging in four or five
practice or “heat” runs in a white Crown Victoria with dark tinted windows, in what
appeared to be an attempt to determine if they were being followed; and finally
loading packages of what appeared to be narcotics from the shed into the trunk of
the Crown Victoria, leaving the property, and heading toward the highway. The
helicopter unit conveyed this information to Captain Garrett, who in turn told Deputy
Mace to be on the lookout for a white Crown Victoria with dark tinted windows,
driven by two Hispanic males, that was possibly transporting narcotics. Deputy
Mace, who was positioned at one of the only two ways from the property to the
highway, saw a white Crown Victoria with dark tinted windows, driven by appellant,
pass him and he proceeded to stop the car.
The information from the confidential informant was thus independently
corroborated by firsthand surveillance of appellant’s activities by law enforcement.
This Court has previously rejected an argument similar to appellant’s (i.e., that a tip
from a confidential information alone is not enough without evidence that the
informant was credible and reliable) and held that firsthand surveillance by law
enforcement that corroborates information from a confidential informant is
sufficient to provide probable cause for an arrest. See Minassian v. State, 490 S.W.3d
629, 638 (Tex. App.—Houston [1st Dist.] 2016, no pet.).
15
Here, Deputy Mace conducted an investigatory stop, which is a lesser
intrusion on privacy than a “full-blown custodial arrest” and requires only that the
officer have reasonable suspicion for the stop, not probable cause as was found in
Minassian. See Derichsweiler, 348 S.W.3d at 914. We conclude that the activities
of appellant articulated above that were observed by the narcotics task force and
communicated to Captain Garrett sufficiently corroborated the information provided
by the informant and provided Deputy Mace with reasonable suspicion to stop
appellant’s car to investigate possible narcotics trafficking. See Cuero v. State, 845
S.W.2d 387, 392–93 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d) (holding that
information obtained by police officer from first-time informant that defendant had
received large cocaine shipment, coupled with officer’s observations of defendant,
including observing defendant engage in “heat runs” and load large box into trunk
of car, and officer’s experience as narcotics officer gave him reasonable suspicion
of criminal activity sufficient to justify investigative detention of defendant).
We further conclude that neither Captain Garrett nor Deputy Mace were
required to personally observe the suspected car or appellant’s activity at the
residence during the surveillance in order to justify the stop. The Court of Criminal
Appeals has held that the “cumulative information known to the cooperating officers
at the time of the stop is to be considered in determining whether reasonable
suspicion exists.” Derichsweiler, 348 S.W.3d at 914; Hoag, 728 S.W.2d at 380.
16
For example, in Hoag, the Court held that a stop based on the collective
knowledge of police officers who were involved in an investigation into a burglary
that occurred two days before the defendant was arrested, combined with the
knowledge of other officers involved in the subsequent surveillance of defendant,
who observed the defendant entering backyard of one house and trying to open
garage door of another house, provided officers with reasonable suspicion that crime
had been committed so as to justify a brief investigatory detention. 728 S.W.2d at
377–78, 80; see also Derichsweiler, 348 S.W.3d at 917 (holding police officer had
reasonable suspicion to detain defendant based on “information known collectively
to the police,” which included 911 dispatcher, even though officer who stopped
defendant only received information from dispatcher about suspicious vehicle,
because citizen informants told dispatcher that defendant was stopping next to
vehicles in parking lots and staring at occupants of those vehicles); cf. Armendariz
v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (holding facts observed by
undercover officer and transmitted by radio to deputy sheriff with instruction to stop
defendant’s vehicle provided deputy sheriff with probable cause for stop of
defendant’s vehicle and did not violate Fourth Amendment). Therefore, the fact that
neither Captain Garrett nor Deputy Mace personally observed the facts giving rise
to reasonable suspicion does not run afoul of the Fourth Amendment because the
stop was based on the cumulative information known to the cooperating officers,
17
including members of the task force conducting the surveillance in the helicopter
unit, at the time of the stop. Derichsweiler, 348 S.W.3d at 917; Hoag, 728 S.W.2d
at 380.
Finally, when Deputy Mace saw appellant driving onto the improved
shoulder, Deputy Mace may have reasonably suspected that appellant had
committed a traffic violation in Mace’s view.1 Deputy Mace testified that as he
approached appellant’s car, but while still 10-15 car lengths behind appellant,
appellant “immediately moved to the right of the fog line onto the shoulder.” Deputy
Mace testified that although the Transportation Code allows for driving on the
shoulder in some circumstances, it may only be done if necessary and safe to do so.
Deputy Mace agreed that one of the permissible reasons to drive on the shoulder is
to allow another car traveling faster to pass; however, in this situation, it was not
1 Section 545.058(a) of the Transportation Code provides:
(a) An operator may drive on an improved shoulder to the right of the main
traveled portion of a roadway if that operation is necessary and may be done
safely, but only:
(1) to stop, stand, or park;
(2) to accelerate before entering the main traveled lane of traffic;
(3) to decelerate before making a right turn;
(4) to pass another vehicle that is slowing or stopped on the main
traveled portion of the highway, disabled, or preparing to make a left
turn;
(5) to allow another vehicle traveling faster to pass;
(6) as permitted or required by an official traffic-control device; or
(7) to avoid a collision.
TEX. TRANSP. CODE § 545.058(a).
18
necessary for appellant to drive on the shoulder because Deputy Mace gave no
indication that he was going to pass, either by putting his blinkers on or driving up
close to appellant’s car. Deputy Mace also testified that he did not tailgate appellant
or move his car to the left to indicate he wanted to pass. Finally, Deputy Mace
testified that he believed appellant crossed onto the shoulder without apparent cause
or reason in violation of the Transportation Code and, therefore, he believed he had
reasonable suspicion to stop appellant’s car for an investigation.
Though appellant argued below and now on appeal that Deputy Mace was
traveling faster than appellant and, therefore, appellant did not violate the
Transportation Code by driving on the shoulder to allow Deputy Mace to pass, the
State was only obligated to show sufficient facts to create a reasonable suspicion that
a crime had taken place; it was not required to prove that a crime (or here, a violation
of the Transportation Code) actually occurred. See Garcia, 43 S.W.3d at 531;
Gajewski, 944 S.W.2d at 452.
Further, in light of the information he received from Captain Garrett related
to possible narcotics trafficking, Deputy Mace could have suspected that driving on
the shoulder was not done for a permissible purpose, but rather was an indicator that
appellant was engaged in illegal drug activities. See Jolivette v. State,
No. 01-13-00451-CR, 2014 WL 3002081, at *6 (Tex. App.—Houston [1st Dist.]
July 1, 2014, pet. ref’d) (mem. op., not designated for publication) (holding, based
19
on totality of circumstances, including officers’ narcotics-related experience,
defendant’s location in high narcotics-trafficking area, and defendant’s arguable
violations of Transportation Code, that officers had reasonable suspicion to conduct
investigation into whether defendant was engaged in illegal drug activities);
Escamilla v. State, No. 01-06-00299-CR, 2007 WL 1440228, at *5 (Tex. App.—
Houston [1st Dist.] May 17, 2007, pet. ref’d) (mem. op., not designated for
publication) (holding, in light of totality of circumstances, including police officers’
observations of defendant driving around neighborhood, making contact with
pedestrians, shining high beams into surveillance vehicles, and then speeding
through neighborhood at high rate of speed, that officers possessed articulable facts
to reasonably suspect that appellant was engaged in illegal drug activities, as alleged
by anonymous tipster).
Therefore, based on the information he received from Captain Garrett related
to appellant’s involvement in possible narcotics trafficking, combined with his
observations of appellant driving on the shoulder, we conclude that Deputy Mace
possessed specific, articulable facts that appellant was engaged in illegal drug
activities, even if his testimony did not definitely prove that a violation of the
Transportation Code occurred.
After reviewing the totality of the circumstances, we hold that the trial court
did not abuse its discretion in finding that there was reasonable suspicion to stop
20
appellant’s car, based on the surveillance and information relayed to Captain Garrett,
as well as Deputy Mace’s observation of an arguable violation of the Transportation
Code, and thus denying appellant’s motion to suppress. See Derichsweiler, 348
S.W.3d at 917 (focus must be on the totality of the circumstances “viewed
objectively and in the aggregate”); see also Oringderff v. State, 528 S.W.3d 582,
588–89 (Tex. App.—Texarkana 2017, no pet.) (holding, based on totality of the
circumstances, that officer had reasonable suspicion for stop in light of anonymous
tip and officer’s observation of arguable traffic violation); Jolivette, 2014 WL
3002081, at *6; Escamilla, 2007 WL 1440228, at *5.
We overrule appellant’s first issue.
Jury Instruction on Necessity Defense
In his second issue, appellant argues that the trial court reversibly erred by
denying his requested necessity instruction. In addressing appellant’s argument, we
first determine whether the jury charge contained error and then determine whether
sufficient harm resulted to require reversal. See Kirsch v. State, 357 S.W.3d 645, 649
(Tex. Crim. App. 2012).
A. Applicable Law
A defendant is entitled to an instruction on every defensive issue raised by the
evidence regardless of the strength of the evidence. Brown v. State, 955 S.W.2d 276,
279 (Tex. Crim. App. 1997). The necessity defense is a justification defense,
21
meaning the defense justified conduct that would otherwise be criminal. TEX. PENAL
CODE § 9.22; Young v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999). “When
the necessity defense applies, it justifies the defendant’s conduct in violating the
literal language of the criminal law and so the defendant is not guilty of the crime in
question.” Young, 991 S.W.2d at 839 (quoting Wayne R. LaFave and Austin W.
Scott, Jr., CRIMINAL LAW § 5.4(a) (2d ed. 1986, Supp. 1993)).
The necessity defense is based on the confession-and-avoidance doctrine,
which requires a defendant to admit both the act or omission and the required mental
state. Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010). A defendant
must admit to each element of the offense, including both the act and the requisite
mental state, to claim the justification to excuse his otherwise criminal conduct. Villa
v. State, 417 S.W.3d 455, 462 (Tex. Crim. App. 2013). When the defensive evidence
merely negates the necessary culpable mental state, it will not suffice to entitle the
defendant to a defensive instruction on necessity. Shaw v. State, 243 S.W.3d 647,
659 (Tex. Crim. App. 2007).
Section 9.22(1) of the Penal Code provides the basic two-prong test that a
defendant must satisfy to be entitled to a jury instruction on the defense of necessity.
TEX. PENAL CODE § 9.22(1); see Escobar v. State, No. 01-14-00593-CR, 2015 WL
6550733, at *13 (Tex. App.—Houston [1st Dist.] Oct. 29, 2015, pet. ref’d) (mem.
op., not designated for publication). First, a defendant is required to present evidence
22
that he reasonably believed a specific harm was imminent. TEX. PENAL CODE
§ 9.22(1); Escobar, 2015 WL 6550733, at *13. Second, a defendant must present
evidence that he reasonably believed the criminal conduct was immediately
necessary to avoid the imminent harm. TEX. PENAL CODE § 9.22(1); Escobar, 2015
WL 6550733, at *13.
B. Analysis
Appellant argues that the trial court erred in refusing to give an instruction on
the defense of necessity because he presented some evidence of each element of the
defense. But this argument focuses only on the elements of the defense, not the
elements of the charged offense. In order to be entitled to the instruction on
necessity, appellant was required to not only satisfy the elements of the defense, but
he was also required to admit to all elements of the offense, including the act itself
and the requisite mental state. The accused must admit to the offense because the
plea of necessity addresses the accused’s state of mind, requiring the accused to
“reasonably believe his conduct is immediately necessary to avoid imminent harm.”
Jimenez v. State, No. 14-99-00627-CR, 2000 WL 991711, at *2 (Tex. App.—
Houston [14th Dist.] July 20, 2000, no pet.) (not designated for publication). When
a defendant does not admit to committing the offense or having the requisite mental
state, courts have held that the defendant is not entitled to a jury instruction on the
defense of necessity.
23
For example, in Young v. State, the defendant was charged with attempted
murder after he was placed under a civilian’s arrest. 991 S.W.2d at 836. The
defendant testified at trial that he was afraid for his life after being unlawfully
arrested, and that he attempted to escape by jumping out of the moving truck, hitting
the steering wheel in the process and causing the truck to veer off the road. Id. The
court acknowledged that while the defendant argued he acted reasonably and that
these actions were necessary to save his life, “such an argument does not present the
defense of necessity.” Id. at 839. Instead, to raise necessity, the defendant had to
“admit he committed the offense and then offer necessity as a justification.” Id.
Because the defendant did not admit to attempted murder, and instead argued he did
not commit the offense because he did not have the requisite intent and did not
perform the actions alleged by the State, the court held that he was not entitled to a
jury instruction on the defense of necessity. Id.
And similar to this case, in Jimenez v. State, the defendant was charged with
possession with intent to deliver cocaine. 2000 WL 991711, at *1. At trial, the
defendant argued that he did not possess the cocaine voluntarily, but instead argued
that he was ordered to load twenty packages of cocaine into two hidden
compartments in a truck, or he “would not get out of the truck alive.” Id. at *3.
Significantly, the court found that the defendant was charged with possession of
cocaine with intent to distribute in an amount over 400 grams, not with loading
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twenty packages of cocaine into two hidden compartments. Id. Because the
defendant did not admit that the voluntarily, knowingly, or intentionally possessed
cocaine with intent to distribute in an amount over 400 grams, he did not raise the
defense of necessity and the trial court properly omitted the jury instruction on
necessity from the charge. Id.
Here, appellant was charged with possession of 400 grams of
methamphetamine with intent to deliver. To raise necessity as a defense, appellant
must have admitted to: (1) knowingly or intentionally, (2) possessing,
(3) methamphetamine, (4) in an amount greater than 400 grams, (5) with the intent
to deliver the methamphetamine. See TEX. HEALTH & SAFETY CODE § 481.112(e).
Like the defendants in Young and Jimenez, appellant has not admitted to all the
elements of the crime charged, specifically that he voluntarily, knowingly, and
intentionally possessed the methamphetamine with an intent to deliver. Appellant
was asked multiple times by the State during his testimony whether it was his intent
to take the drugs and deliver them somewhere else. Each time he was asked,
appellant said no, that was not his intention:
STATE. Did you intend to deliver those drugs that were
found in your car and the passenger somewhere else
to be delivered?
APPELLANT. It was not my intentions.
STATE. Yes or no?
APPELLANT. No.
25
*****
STATE. After you and Tivo were at his place, you knew
there were drugs in your car?
APPELLANT. Being put drugs in the car, I have --
STATE. Yes or no?
APPELLANT. Yes.
STATE. And you knew that you were going to take those
drugs somewhere else?
APPELLANT. Correct.
STATE. And it was your intent to take those drugs and your
passenger somewhere else?
APPELLANT. No.
*****
STATE. Okay. So once the drugs are in the car and Tivo is
in the car, where are you going?
APPELLANT. 290.
STATE. Was it your intent, then, when you got to 290 to drop
off Tivo?
APPELLANT. It was not my intentions.
STATE. You had no -- so your attempt is to drive around?
APPELLANT. I’m doing what I’m being told.
*****
STATE. So was it your intent now when the drugs are in the
car and Tivo’s in the car to drive Tivo and the drugs
somewhere else?
APPELLANT. May I ask something?
26
STATE. I just need a yes or a no.
*****
APPELLANT. Not my intentions.
Moreover, appellant conceded in his brief on appeal that he did not admit to
all the elements of the offense because “he did not have the requisite mens rea
because he was forced to participate in the crime at gun point.” This argument
attempts to negate an essential element of the offense—the culpable mental state—
rather than admit to an essential element of the offense as is required to raise the
defense of necessity. See Shaw, 243 S.W.3d at 660 (holding trial court did not err in
refusing to submit instruction on necessity to jury when appellant, who was charged
with intentionally, knowingly, or recklessly causing injury to child, argued at trial
that she performed CPR without any conscious awareness that she might be causing
some injury to child because that “defensive posture serves only to negate the
culpable mental element of the offense”). Because appellant did not admit to the
requisite mental state, he was not entitled to an instruction on the defense of
necessity. Young, 991 S.W.2d at 836; Jimenez, 2000 WL 991711, at *1.
We overrule appellant’s second issue.
Outcome: We affirm the trial court’s judgment.
Plaintiff's Experts:
Defendant's Experts:
Comments: