Opinion filed November 26, 2014




                                    In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-12-00317-CR
                                  __________

                RICKEY LAVELLE TAYLOR, Appellant
                                       V.
                    THE STATE OF TEXAS, Appellee


                    On Appeal from the 244th District Court
                             Ector County, Texas
                       Trial Court Cause No. A-39,256


                     MEMORANDUM OPINION
      The jury convicted Appellant, Rickey Lavelle Taylor, of murder and
unlawful possession of a firearm. Appellant pleaded “true” to two enhancement
paragraphs for prior felony convictions that occurred in Georgia.      The jury
assessed punishment at confinement for twenty-five years for the murder
conviction and ten years for the unlawful possession of a firearm conviction. The
jury also assessed fines of $3,000 for each conviction. The trial court sentenced
Appellant accordingly. Appellant asserts five issues on appeal that include one
sufficiency issue and two evidence admission issues as well as claims that the trial
court failed to instruct the jury on a necessity defense and that Appellant’s trial
counsel was ineffective. We modify and affirm.
                             I. The Charged Offenses
      The grand jury indicted Appellant for the murder of Johnny Lee Mackey and
for unlawful possession of a firearm. A person commits the offense of murder if
he intentionally or knowingly causes the death of an individual or intends to cause
serious bodily injury and commits an act clearly dangerous to human life that
causes the death of the individual. TEX. PENAL CODE ANN. § 19.02(b)(1), (2)
(West 2011). The State provided notice of two enhancement paragraphs: a prior
felony conviction for attempted burglary and a second felony conviction for
aggravated assault. The punishment range for a murder conviction, as enhanced by
two prior felony convictions, is confinement for life or confinement for not less
than twenty-five years or more than ninety-nine years. Id. § 12.42(d) (West Supp.
2014). Section 12.42(d) does not authorize any fine. Id.
      A person commits the offense of unlawful possession of a firearm, as a
felon, if he possesses a firearm before the fifth anniversary of his release from
confinement following conviction of the felony or his release from supervision
under community supervision, parole, or mandatory supervision, whichever date is
later. Id. § 46.04(a)(1). The punishment for Appellant’s conviction for the third-
degree felony offense of unlawful possession of a firearm by a felon was enhanced
with one prior felony conviction. See id. §§ 12.42(a), 46.04(a), (e). Thus, the
applicable punishment range was confinement for a term of not more than twenty
years or less than two years and an optional fine of no more than $10,000. Id.
§ 12.33. Appellant pleaded “not guilty” to both counts and proceeded to trial.
                               II. Evidence at Trial
      Amanda Davis, who was twenty-three years old at the time of trial, met
Appellant in October 2008 and began a romantic relationship with him. Davis
lived with Appellant, whom she described as her boyfriend, in Odessa, beginning

                                         2
in December 2008. Appellant kept clothes at the house, received his mail there,
and helped pay the utilities. He also attended church with Davis. According to
Davis, Appellant did not use alcohol.
      Davis said trouble began between Appellant and the victim, Johnny Lee
Mackey, when she was accused of cheating on Appellant by seeing the victim, a
former boyfriend. Davis and the victim had a child together, J.M., 1 and they had
lived together for approximately two years before Appellant and Davis began their
relationship. Davis characterized her relationship with the victim as good in the
beginning, but she said that he later became abusive, both physically and verbally,
which led to the filing of criminal charges against the victim and to the end of their
relationship in August 2008. She described the victim as a gang member with a
history of violent behavior.
      The victim was placed in jail in August 2008 in connection with an assault
against Davis. He bonded out of jail in February 2009, and on February 24, 2009,
the victim went to Davis’s home. Davis testified that the victim came to see J.M.,
but J.M. was not there. Davis, who was pregnant with Appellant’s child, said that
Appellant asked the victim to sit down and calmly talk about the situation but that
the victim responded that he only wanted to talk to Davis. Davis said that the
victim got mad and argued with Appellant; the victim then demanded that
Appellant leave because this was the victim’s family, not Appellant’s family.
Davis said that Appellant went into a bedroom and that the victim followed him
into the bedroom, where they continued to argue.
      Davis said that Appellant picked up a gun, which Davis had gotten from the
victim, and pointed it at the victim. Appellant asked the victim, who had a beer
bottle in his hand, to leave. When the victim did not leave, Appellant shot a bullet
into the wall. At this point, the victim’s cousin, Michael Ray Pherguson, who had
come to the house with the victim, went into the bedroom to get the victim to


      1
       J.M. was five years old at the time of trial.

                                                       3
leave. Appellant fired more shots as the victim turned toward the front door. The
victim fell down after Appellant shot him. Davis said that the victim made no
aggressive moves toward Appellant and that, after being shot, the victim was on
the floor crawling toward the front door. Davis testified that the victim crawled to
the front doorway and that she went next door to call 911. She returned and rolled
the victim over, but she did not know what to do. Appellant took Davis’s car and
drove away. The victim died as a result of the gunshot wounds inflicted by
Appellant.
       Michael testified that he and the victim were members of the same gang but
were no longer active in that gang and that both he and the victim had been to
prison. Michael had been convicted of the felony offenses of assault on a police
officer and evading arrest. Michael said that the victim had been in jail for an
assault on Davis. On the day of the shooting, Michael and the victim had been
drinking, and in the evening, they went to Davis’s house to see the victim’s child,
J.M.   Michael said that he was at Davis’s house when the victim was shot.
Michael said that he had never seen Appellant before but that Appellant and the
victim argued and exchanged words and that Appellant pointed a Ruger
semiautomatic .22 caliber handgun at the victim.
       Michael tried to get the victim to leave the house. Instead, the victim threw
a vacuum cleaner, and Appellant shot the victim several times as Michael was
trying to get them out of the way. The victim fell, and Michael tried to pick the
victim up. Appellant then stepped over Michael and left the house. Michael went
outside, got into his suburban, and drove to a nearby convenience store to call the
police.2 Michael said that the victim was not armed and made no threatening
gestures toward Appellant.
       Appellant testified and admitted that he shot the victim, but he claimed that
he did so in self-defense when the victim moved toward him. Appellant said that
he shot at the victim as Appellant tripped over the bed. The victim had come to the

       2
        Davis testified that she did not have a telephone in the house.
                                                    4
house to see J.M. and Davis even though the victim had signed a protective order
in which he agreed to stay away. When the victim arrived at the house, Appellant
tried to get the victim to sit down and talk with him. The victim had a beer bottle
in his hand and appeared to be intoxicated. Appellant acknowledged that the
victim had a right to see J.M., but the victim only wanted to talk to Davis.
Appellant argued with the victim, and arguments that started in the living room
moved to the bedroom. Appellant remarked that the victim had been cursing at
both Davis and Appellant and that Appellant had asked the victim several times to
leave the house. Appellant said that he did not feel like he was in imminent danger
when the victim was outside.
      Appellant said that he picked up a handgun in the bedroom but that he did
not immediately point it at the victim. The victim knocked over a vacuum cleaner,
and Appellant shot a bullet into a wall to scare the victim so he would leave.
Michael came into the bedroom and tried to get the victim to leave. The victim did
not leave but, rather, continued to curse. Appellant said that he then fired several
shots at the victim when the victim moved toward him. Appellant said that he
thought that the victim would take the gun away from him and shoot him and that,
therefore, he was in fear for his life when he shot the victim.
      Appellant testified that he left the house because he did not want to go to
jail; he took Davis’s car and left. Appellant admitted that he disposed of the .22
caliber handgun after he left the house. Appellant went to a friend’s house and met
Davis later, and they both headed for Dallas in a stolen pickup. Appellant admitted
that he was arrested while he was in Dallas and that, on two occasions, he had
escaped from the Ector County Detention Center while the charges in this case
were pending.
      Appellant admitted that he had prior convictions in Georgia for aggravated
assault, burglary, theft, making a terroristic threat, receiving stolen property, and
possession of cocaine; he also admitted to using several aliases. Appellant knew
that the victim mistreated Davis, that the victim had been in jail, that the victim had

                                           5
been released, and that the victim claimed that Appellant was “messing with [the
victim’s] girlfriend”; Appellant also was aware that the victim, who was a gang
member, had shot at Tasha Linch’s son and at her nephew. Appellant said that,
because of the victim’s behavior, Davis and Appellant sought a protective order
against the victim. He further testified that, on a previous occasion, police had
come to the house in connection with an altercation with the victim. Appellant
also admitted that he purchased bullets for the .22 caliber handgun and that he
loaded the gun with the bullets that he had purchased. Appellant further admitted
that he was a felon on parole at the time that he shot the victim with the firearm.
      Shawn Calendar, a burglary detective with the Odessa Police Department,
testified that he responded to the shooting at Davis’s home and found the victim
lying in the doorway with Davis bent over him and two black males, Michael
Pherguson and Quinton Pherguson, nearby. Both Michael and Quinton identified
the victim as their cousin.     Detective Calendar spoke to Davis, and he also
observed bullet holes in the walls of the home.
      The Odessa Police Department sent crime scene technicians to the house.
They videotaped and photographed the crime scene and collected evidence and
fingerprints.
      Marc Krouse, a physician and the deputy chief medical examiner in Fort
Worth, performed the autopsy on the victim and determined the cause of death.
Dr. Krouse testified that he examined the victim’s body, took photographs, and
prepared a report. Dr. Krouse indicated that he observed six gunshot wounds to
the victim and that one .22 caliber bullet had exited the body. The victim had been
shot in the left and right chest, abdomen, leg, and head; death was caused by the
cumulative effect of the gunshot wounds. The victim had alcohol and cocaine in
his system and was intoxicated at the time of his death. The gunshot wound
behind the victim’s left ear was inflicted as the victim was turning away and was
less than three feet from the shooter.


                                          6
          Adam Barboza served as a detective with the Odessa Police Department and
was a part of the murder investigation. Detective Barboza spoke to Michael, and
Michael told him that he had tried to get the victim to leave Davis’s house. He
said that the victim was upset because the gun that Appellant held on the victim
was the victim’s own gun.
          Matthew Palfreyman, a sergeant with the Balch Springs Police Department,
testified that he stopped a stolen pickup. Both occupants of the pickup, a black
male and a female, gave false names. Later, the male admitted that his name was
Rickey Taylor, that he had killed someone, and that there was a warrant for his
arrest.
          Larry Kiker, a patrol officer with the Odessa Police Department, was
dispatched to investigate Appellant’s first escape from custody in Ector County.
Officer Kiker testified that Appellant escaped through an unlocked door around
midnight and was returned to custody at 10:00 a.m. that same morning. Lucas
Gonzales Mesa III, a deputy with the Ector County Sheriff’s Department, who was
working at the Ector County Detention Center, testified that he was asked to check
on the status of Appellant in jail and that he discovered Appellant had escaped.
Paul Deleon, an investigator for the Ector County Sheriff’s Department, testified
that he was sent to an apartment in Odessa to locate Appellant. Appellant was
located and apprehended as he was trying to climb out of an apartment window.
          Deputy Mathew McCrury of the Ector County Sheriff’s Department testified
that he had checked on Appellant in his jail cell and discovered that Appellant had
escaped a second time. Deputies subsequently located Appellant at a Motel 6 and
again returned him to custody.
          Tasha Marie Linch testified that the victim had used a gun to shoot at her
son and at her nephew; she characterized the victim as a violent man. Gloria Jean
Clark, a victim’s assistant in the Ector County District Attorney’s office, testified
that Davis had applied for a protective order against the victim the day before the
victim was shot and that Appellant had also been to Clark’s office a few days

                                           7
earlier. Alexandria Kennedy testified that Appellant’s usual demeanor was calm
and collective and that he was a very nice and decent guy, but that he was different
on the night of the shooting and did not seem to be himself.              Kennedy
acknowledged that she was unaware of his prior convictions for theft, burglary,
and other offenses. Tiffany Ann Goff testified that Appellant was agitated and
afraid on the night of the shooting and that he had asked her to take him to a
friend’s house; she said that he was usually “laid back” unless he was upset at
Davis.
                               III. Issues Presented
      Appellant presents five issues. First, he asserts that his trial counsel was
ineffective. Second, Appellant claims that the trial court erred when it admitted
evidence of his prior convictions. Third, Appellant claims that the admission of
flight evidence was in error. Fourth, Appellant claims that the trial court should
have given a necessity instruction to the jury. Finally, Appellant asserts that the
evidence was insufficient to convict him of murder.
                              IV. Standard of Review
      We apply the well-recognized Strickland standard of review to review
Appellant’s complaint of ineffective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 686 (1984). We review a trial court’s ruling on the
admission of extraneous offense evidence under an abuse of discretion standard.
De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). We also review
the trial court’s admission of prior convictions under an abuse of discretion
standard.   Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010);
McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). Likewise, we
review the decision to admit evidence for an abuse of discretion. Montgomery v.
State, 810 S.W.2d 372, 390–91 (Tex. Crim. App. 1991). As long as the trial
court’s ruling is within the zone of reasonable disagreement, there is no abuse of
discretion, and we will uphold the ruling. De La Paz, 279 S.W.3d at 343–44;
Montgomery, 810 S.W.2d at 391.

                                         8
      Appellate review of error in a jury charge involves a two-step process.
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). We must first
determine whether error occurred. If so, we must then evaluate whether the error
requires reversal. Id. at 731–32. We review the sufficiency of the evidence under
the standard of review in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v.
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).
                                     V. Analysis
      We will address Appellant’s sufficiency issue first followed by his other four
issues.
      A. Issue Five: Sufficiency of the Evidence
      Under the Jackson standard, we examine all of the evidence in the light most
favorable to the verdict and determine whether, based on that evidence and any
reasonable inferences from it, any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at
319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). As the sole
judge of the credibility of the witnesses, the jury may accept or reject any or all of
a witness’s testimony, and we defer to the jury to resolve conflicts in the evidence,
to weigh the evidence, and to draw reasonable inferences to reach ultimate facts.
Gross v. State, 380 S.W.3d 181, 185 (Tex. Crim. App. 2012); Saxton v. State, 804
S.W.2d 910, 914 (Tex. Crim. App. 1991).
      Appellant testified and admitted that he shot the victim several times, but
claimed to have done so in self-defense. The jury heard evidence from Michael
and Davis that the victim, although cursing and arguing, did not threaten Appellant
and made no aggressive moves toward Appellant. Appellant testified that he
thought he was in immediate danger when the victim entered the house. And,
although Appellant claimed that the victim had moved toward him and that he shot
the victim in response, the victim was unarmed. The jury could disbelieve part or
all of Appellant’s testimony. Appellant admitted that he fled after shooting the
victim and that he had twice escaped while awaiting trial in this case.           See

                                          9
Santos v. State, 961 S.W.2d 304, 305 (Tex. App.—Houston [1st Dist.] 1997, pet.
ref’d) (flight indicates consciousness of guilt). Appellant also admitted that he got
rid of the gun following the shooting; that is further evidence of consciousness of
guilt. See Martin v. State, 151 S.W.3d 236 (Tex. App.—Texarkana 2004, pet.
ref’d). Having reviewed the entire record, we hold that a rational jury could have
found beyond a reasonable doubt that Appellant intentionally or knowingly caused
the victim’s death. Appellant’s fifth issue on appeal is overruled.
      B. Issue One: Ineffective Assistance of Counsel
      Appellant claims that his trial counsel was ineffective because trial counsel
asked witnesses about Appellant’s demeanor; the trial court ruled that, by asking
those questions, the door had been opened for the admission of Appellant’s prior
convictions. The benchmark for evaluating an ineffective assistance of counsel
claim is whether counsel’s conduct “so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686.
      The Strickland test has two prongs: (1) a performance standard and (2) a
prejudice standard. Id. at 687. For the performance standard, we must determine
whether Appellant has shown that counsel’s representation fell below an objective
standard of reasonableness. Id. If so, we then determine whether there is a
reasonable probability that the outcome would have differed but for counsel’s
errors. Wiggins v. Smith, 539 U.S. 510, 520–21 (2003); Strickland, 466 U.S. at
686; Andrews, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005).
      The reasonable probability must rise to a level that undermines confidence in
the outcome of the trial. Isham v. State, 258 S.W.3d 244, 250–51 (Tex. App.—
Eastland 2008, pet. ref’d). A failure to make a showing under either prong of the
Strickland test defeats a claim of ineffective assistance of counsel. Perez v. State,
310 S.W.3d 890, 893 (Tex. Crim. App. 2010); Andrews, 159 S.W.3d at 101. A
reviewing court need not consider both prongs of the Strickland test and can
dispose of an ineffectiveness claim on either prong. Walker v. State, 406 S.W.3d

                                         10
590, 594 (Tex. App.—Eastland 2013, pet. ref’d) (citing Cox v. State, 389 S.W.3d
817, 819 (Tex. Crim. App. 2012)); see Strickland, 466 U.S. at 697.
      The first prong of Strickland requires Appellant to establish that trial counsel
provided deficient assistance of counsel. There is a strong presumption that trial
counsel’s conduct fell within the wide range of reasonable professional assistance.
Strickland, 466 U.S. at 689; Isham, 258 S.W.3d at 250.            To overcome this
deferential presumption, an allegation of ineffective assistance must be firmly
founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).
Usually, a silent record that does not explain counsel’s actions will not overcome
the strong presumption of reasonable assistance. Id.
      Appellant must overcome the presumption that, under the circumstances, the
challenged action might be sound trial strategy. Jackson v. State, 877 S.W.2d 768,
771–72 (Tex. Crim. App. 1994); Hayden v. State, 155 S.W.3d 640, 648 (Tex.
App.—Eastland 2005, pet. ref’d). Generally, the record on direct appeal will not
be sufficient to show that trial counsel’s representation was so lacking as to
overcome the presumption of reasonable conduct. Bone v. State, 77 S.W.3d 828,
833–34 (Tex. Crim. App. 2002). We do not inquire into trial strategy unless no
plausible basis exists for trial counsel’s actions. Johnson v. State, 614 S.W.2d 148,
152–54 (Tex. Crim. App. [Panel Op.] 1981).           When the record contains no
evidence of the reasoning behind trial counsel’s actions, we cannot conclude
counsel’s performance was deficient. Jackson, 877 S.W.2d at 771.
      Appellant claims that, because his trial counsel asked questions about
Appellant’s demeanor, his prior criminal history was admissible when it otherwise
would not have been. Appellant’s criminal history was admitted when Appellant
testified. The criminal history information was brought out in direct examination
by Appellant’s own trial counsel, perhaps under the impression that the effect of
the criminal history might be lessened if Appellant first broached the subject.
However, with nothing in the record to reflect trial counsel’s strategy about why he

                                         11
asked questions about Appellant’s demeanor on the night of the shooting and with
nothing in the record to demonstrate that Appellant was prejudiced by this course
of action, we hold that Appellant has failed to meet either prong of the Strickland
standard. We overrule Appellant’s first issue on appeal.
      C. Issue Two: Admission of Prior Convictions
      Appellant asserts that the trial court erred when it admitted evidence of his
prior felony convictions from 1999–2005 because, under Rule 403 of the Texas
Rules of Evidence, the probative value of the impermissible character evidence
was substantially outweighed by the unfair prejudice to him. Appellant also argues
that, under Rule 609 of the Texas Rules of Evidence, the convictions were too
remote and their probative value was outweighed or substantially outweighed by
the prejudice to him.
      Even if Appellant is correct in his assertion that the trial court erred, he has
waived any error that might exist. Testimony about Appellant’s prior convictions
occurred at two different times during the trial. First, Kennedy was asked “are you
aware” questions following Appellant’s counsel’s questions about Appellant’s
“usual” demeanor—which was described as “calm,” “collective,” “very nice,” and
“decent”—and Appellant’s demeanor on the night of the shooting, which was
described as “different” like “he [Appellant] wasn’t okay with himself.” Second,
the prior convictions were acknowledged by Appellant when he answered
questions on direct examination from his own counsel. It is well established that
questions regarding the admission of evidence are rendered moot if the same
evidence is elsewhere introduced without objection; any error in admitting
evidence over a proper objection is harmless if the same evidence is subsequently
admitted without objection. Chamberlain v. State, 998 S.W.2d 230, 235 (Tex.
Crim. App. 1999). Appellant’s second issue on appeal is overruled.
      D. Issue Three: Admission of Flight Evidence
      Evidence of flight is admissible as a circumstance from which an inference
of guilt may be drawn. Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App.

                                         12
1989) (citing Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1981);
Holloway v. State, 525 S.W.2d 165, 167–68 (Tex. Crim. App. 1975)); see TEX.
R. EVID. 401. To support the admission of evidence of escape from custody or
flight, it must appear that the escape or flight pertains to the offense under
prosecution. Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex. Crim. App. 1982);
Wockenfuss v. State, 521 S.W.2d 630, 632 (Tex. Crim. App. 1975) (evidence of
flight, in bail-jumping, may be construed as evidence of guilt); Hodge v. State, 506
S.W.2d 870, 873 (Tex. Crim. App. 1974). To have such evidence excluded under
relevancy challenges, the burden shifts to the defendant to show affirmatively that
the escape and flight directly connected to some other transaction and that it was
not connected with the offense at trial. Wockenfuss, 521 S.W.2d at 632; Hodge,
506 S.W.2d at 873. Flight is no less relevant if it is only flight from custody or to
avoid arrest. Foster, 779 S.W.2d at 859; Hunter v. State, 530 S.W.2d 573, 575
(Tex. Crim. App. 1975); Fairris v. State, 515 S.W.2d 921, 923 (Tex. Crim. App.
1974).
      Appellant argues that, because his escape from custody at the Ector County
Detention Center was not in close proximity to the alleged offense and because
there was no hot pursuit following his escape, the trial court erred when it allowed
the testimony about Appellant’s escape from jail. The State points out that escape
from custody is generally held admissible as evidence of guilt and that escape from
pretrial detention has greater probative value than prejudice.      Rumbaugh, 629
S.W.2d at 752; McWherter v. State, 607 S.W.2d 531, 534–35 (Tex. Crim. App.
1980); Havard v. State, 800 S.W.2d 195, 203 (Tex. Crim. App. 1989). Because
Appellant was in jail in Ector County awaiting trial on the offenses for which he
was indicted in this case, the State met its burden to show relevance of the escapes
to the prosecution of this case. Appellant had the burden to rebut that evidence.
We find nothing in the record to indicate that Appellant advanced an alternate
reason for his flight, and he has cited no case, and we have found none, that


                                         13
supports his assertions on temporal proximity and pursuit.                 We overrule
Appellant’s third issue on appeal.
      E. Issue Four: Necessity Instruction
      In his fourth issue on appeal, Appellant claims that the trial court erred when
it did not instruct the jury on the defense of necessity. The law provides that the
trial court shall “deliver to the jury . . . a written charge distinctly setting forth the
law applicable to the case [and] not expressing any opinion as to the weight of the
evidence.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). Our law further
provides that a trial court must instruct the jury on statutory defenses, affirmative
defenses, and justifications when raised by the evidence. Walters v. State, 247
S.W.3d 204, 208–09 (Tex. Crim. App. 2007). When we review a claim of jury
charge error, we engage in a two-step process. First, we determine whether error
exists, and then we “determine whether sufficient harm resulted from the error to
require reversal.” Abdnor, 871 S.W.2d at 731–32; Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1985).
      Necessity is a defense to prosecution for conduct that would otherwise be
criminal. Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999). To
establish necessity, the accused must produce evidence of a reasonable belief that
the criminal act was immediately necessary to avoid a greater, imminent harm.
PENAL § 9.22; see also Mays v. State, 318 S.W.3d 368, 385 (Tex. Crim. App.
2010). A “reasonable belief” is one that would be held by an ordinary and prudent
person under the same circumstances. PENAL § 1.07(a)(42). “[I]mminent” means
“impending, not pending; something that is on the point of happening, not about to
happen.” Jackson v. State, 50 S.W.3d 579, 595 (Tex. App.—Fort Worth 2001, pet.
ref’d). Harm is imminent when there is an emergency situation and there is no
time to consider whether the conduct is illegal. Id.
      When we assess the evidence that supports the defense of necessity, we
consider the facts that existed at the time of the criminal act and consider the

                                           14
circumstances from the viewpoint of the accused. Wood v. State, 271 S.W.3d 329,
334 (Tex. App.—San Antonio 2008, pet. ref’d); see also Fitzgerald v. State, 782
S.W.2d 876, 885 (Tex. Crim. App. 1990). A defendant who asserts a necessity
defense must produce some evidence to support his claim. See PENAL § 2.03(c).
Once the defense is raised, the State bears the ultimate burden of persuasion that
the defendant did not act out of necessity and has the burden to prove its case
beyond a reasonable doubt. See id. § 2.03(d); Zuliani v. State, 97 S.W.3d 589, 594
(Tex. Crim. App. 2003) (citing Saxton, 804 S.W.2d at 913–14). To raise necessity,
a defendant must admit he committed the offense and then offer necessity as a
justification. Young, 991 S.W.2d at 839.
      Appellant produced evidence of Davis’s generalized fear of the victim and
his violent nature and of Appellant’s and Davis’s fear that the victim might hurt
Davis if the victim came over to the house. However, evidence of a generalized
fear of harm cannot raise the issue of imminent harm. See PENAL § 9.22(1); see
also Chunn v. State, 821 S.W.2d 718, 719–20 (Tex. App.—Houston [1st Dist.]
1991, pet. ref’d). Appellant also described how the confrontation with the victim
progressed from outside the door to inside the living room, then to the bedroom,
and then continued even after a warning shot, but there is no evidence of the
immediacy for a “split second” decision. Without evidence of a “split second
decision,” such conduct does not contemplate the kind of “imminency” required
for the defense of necessity. See Washington v. State, 152 S.W.3d 209, 212 (Tex.
App.—Amarillo 2004, no pet.). We overrule Appellant’s fourth issue on appeal.
                             VI. Unauthorized Fine
      In count one, Appellant was convicted of murder and his punishment was
enhanced pursuant to Section 12.42(d) of the Texas Penal Code. Section 12.42(d)
does not contain any provision that authorizes a fine to be imposed. PENAL
§ 12.42(d); Dolph v. State, 440 S.W.3d 898, 908 (Tex. App.—Texarkana 2013,
                                       15
pet. ref’d); Blevins v. State, 74 S.W.3d 125, 132 (Tex. App.—Fort Worth 2002,
pet. ref’d). When an unauthorized fine has been imposed, an appellate court may
reform the judgment to delete the fine. See Ex parte Youngblood, 698 S.W.2d 671,
672 (Tex. Crim. App. 1985). The Texas Rules of Appellate Procedure provide this
court with authority to modify a judgment when necessary. TEX. R. APP. P.
43.2(b); Dolph, 440 S.W.3d at 908. Because the fine imposed against Appellant in
count one was unauthorized, we modify the judgment in that count to delete the
$3,000 fine.
                              VII. This Court’s Ruling
      We modify the judgment of the trial court in count one to delete the $3,000
fine, and as modified, we affirm. We affirm the judgment of the trial court in
count two.




                                                   MIKE WILLSON
                                                   JUSTICE


November 26, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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