                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00616-CR


JERRY ROSS CONN                                                     APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


                                    ----------

          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

                                    ----------

                        MEMORANDUM OPINION 1

                                    ----------

      The jury convicted Appellant Jerry Ross Conn of unlawful possession of a

firearm by a felon and assessed his punishment at 18 years’ confinement. The

trial court sentenced him accordingly. Appellant brings a single point on appeal,

arguing that the trial court erred by refusing his requested jury instruction on




      1
       See Tex. R. App. P. 47.4.
necessity.    Because Appellant was not entitled to the jury instruction on

necessity, we affirm the trial court’s judgment.

      Deputy Terrell Hayward testified that on March 28, 2011, he was

dispatched to 107 Syble Jean Court in south Tarrant County for an alleged

violation of a protective order. A pickup identified by the person protected by the

protective order as belonging to the suspect on that call, Kevin Searcy, was

located behind Appellant’s home at nearby 104 Syble Jean Court.            Officers

confirmed that the pickup was registered to Kevin. Believing that Kevin might be

visiting in Appellant’s home, officers announced that they were the “Sheriff’s

[D]epartment” and knocked on the back door of that home, and someone told the

officers to “[g]et off [his] land.” The police kept knocking, and then, according to

the police, Appellant opened the door and pointed a shotgun at Hayward and

Sergeant Mia Toines, who took the shotgun from Appellant.

      An elderly woman, Ms. Doris Bishop, arrived and said that Appellant was

her tenant.

      Appellant was arrested for unlawful possession of a firearm by a felon.

      The indictment charged Appellant with committing the offense on or about

March 28, 2011. Appellant testified that he was on felony probation when he was

arrested. Appellant denied pointing the shotgun at the police.

      Appellant and Kevin also both testified that they had taken the gun out

earlier on the day of Appellant’s arrest to shoot horse apples. While the evidence

was conflicting whether Appellant had actually shot the gun, there was no dispute


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that he let Kevin shoot the apples and that Appellant put the gun away after they

were finished.

      Appellant has arthritis and two artificial knees and has had a total of seven

surgeries on his knees. He also has a bad shoulder. He can walk only slowly.

On one occasion before the incident, a pressure washer was stolen off the back

porch in broad daylight. A week later at 1:00 a.m., which was about five months

before the incident, Appellant’s dog began barking, awakening him.             When

Appellant walked outside, he discovered that thieves had cut off the power lines

going to the house and had tried to steal copper from underneath the house. He

noticed that they had broken into the garage and stolen an air compressor.

Bishop then gave Appellant the shotgun for protection against thieves and

burglars.

      Section 46.04 of the Texas Penal Code provides,

            (a) A person who has been convicted of a felony commits an
      offense if he possesses a firearm:

                  (1) after conviction and before the fifth anniversary of
            the person’s release from confinement following conviction of
            the felony or the person’s release from supervision under
            community supervision, parole, or mandatory supervision,
            whichever date is later; or

                   (2) after the period described by Subdivision (1), at any
            location other than the premises at which the person lives. 2



      2
       Tex. Penal Code Ann. § 46.04 (West 2011).



                                        3
      In his sole point, Appellant contends that the trial court erred by denying

his requested jury instruction on necessity. In our review of a jury charge, we

first determine whether error occurred; if error did not occur, our analysis ends. 3

      Section 9.02 of the Texas Penal Code provides that “[i]t is a defense to

prosecution that the conduct in question is justified under this chapter.” 4 Section

9.22 provides,

             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. 5




      3
       Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).
      4
       Tex. Penal Code Ann. § 9.02 (West 2011).
      5
      Id. § 9.22 (emphasis added); see Vasquez v. State, 830 S.W.2d 948,
949–50 (Tex. Crim. App. 1992).



                                          4
       The necessity defense is available to justify the offense of possession of a

firearm by a felon. 6   But it is available only in situations involving imminent

threat. 7 As our sister court in Austin explained in Dewalt,

       [E]ven a defendant’s sincere belief that his or her conduct is
       immediately necessary to avoid imminent harm is unreasonable as a
       matter of law if the undisputed facts demonstrate a complete
       absence of “immediate necessity” or “imminent harm” as those
       concepts are defined in the law. Consequently, Section 9.22(1)
       requires the defendant to first bring forward evidence of a specific
       imminent harm. “Imminent” means something that is immediate,
       something that is going to happen now. Thus, “imminent harm” . . .
       contemplates a reaction to circumstances that must be the result of
       a split-second decision made without time to consider the law, an
       immediate, non-deliberative action made without hesitation or
       thought of the legal consequence. 8

       And as our sister court in Houston concisely put it, “An ‘imminent harm’

occurs when there is an emergency situation, and it is ‘immediately necessary’ to

avoid that harm when a split-second decision is required without time to consider

the law.” 9

       In the case now before this court, Appellant was indicted for unlawful

possession of a firearm, not just at the moment he pointed it at the police officers


       6
        Vasquez, 830 S.W.2d at 950.
       7
       Tex. Penal Code Ann. § 9.22; Dewalt v. State, 307 S.W.3d 437, 454–56
(Tex. App.—Austin 2010, pet. ref’d).
       8
        Dewalt, 307 S.W.3d at 454 (selected internal marks and citations omitted).
       9
       Smith v. State, 874 S.W.2d 269, 273 (Tex. App.—Houston [14th Dist.]
1994, pet. ref’d).



                                          5
on his property, but at any time “on or about” March 28, 2011. “It is well settled

that the ‘on or about’ language of an indictment allows the State to prove a date

other than the one alleged in the indictment as long as the date is anterior to the

presentment of the indictment and within the statutory limitation period.” 10

Neither party has directed this court’s attention to any place in the record where

Appellant requested that the State elect the occurrence on which it sought to rely

for conviction. 11   By his own testimony, and that of his landlady, Appellant

admitted that he had possessed the firearm for an extended period of time, five

months, not just in those moments he felt himself in imminent danger and not

only when there was imminent danger to his property. Additionally, although

Appellant did not admit to personally shooting the horse apples, the evidence

showed that he nevertheless exercised care, custody and control over the

firearm both before and after the shooting exercise that occurred on the day of

his arrest, and no imminent threat was shown then.


      10
        Sanchez v. State, 400 S.W.3d 595, 600 (Tex. Crim. App. 2013) (internal
quotation marks and citation omitted).
      11
        See Rodriguez v. State, 104 S.W.3d 87, 91 (Tex. Crim. App. 2003)
(holding that testimony that Rodriguez delivered cocaine “maybe 20 or 30 times”
during nine months before date alleged in indictment was not evidence of
extraneous offenses and that his remedy was to require the State to elect);
Morse v. State, No. 09-00-00058-CR, 2001 WL 303625, at *2 n.1 (Tex. App.—
Beaumont 2001, pet. ref’d) (not designated for publication) (“The allegations in
the indictment permitted the State to prosecute Morse for any single incident of
possession occurring anterior to the presentment of the indictment and within the
statute of limitations.”).



                                        6
      While Appellant points to his fear when he heard people outside who

turned out to be peace officers, he possessed the firearm in question long before

the perceived threat of imminent harm arose.        Because the indictment for

possession of the firearm encompassed not merely the brief period when the

police officers were outside his home but also the entire approximately five

months during which he possessed the firearm, Appellant was not entitled to a

necessity instruction. We overrule Appellant’s sole point on appeal and affirm

the trial court’s judgment.




                                                 /s/ Lee Ann Dauphinot
                                                 LEE ANN DAUPHINOT
                                                 JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

GABRIEL, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 19, 2014




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