                              PD-1120-15                                        PD-1120-15
                                                              COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                              Transmitted 8/26/2015 2:21:24 PM
                                                               Accepted 8/28/2015 11:43:45 AM
                                                                                ABEL ACOSTA
                  IN THE COURT OF CRIMINAL APPEALS                                      CLERK
                           OF AUSTIN, TEXAS


THOMAS LESTER HARPER,                    §
        Appellant                        §
                                         §       NO.
VS.                                      §
                                         §
THE STATE OF TEXAS,                      §
         Appellee                        §


 ON PETITION FOR DISCRETIONARY REVIEW FROM THE DECISION
               OF THE COURT OF APPEALS FOR
   THE SECOND DISTRICT OF TEXAS, AT FORT WORTH, TEXAS
                    IN CAUSE NO. 02-14-00189-CR
     AFFIRMING APPELLANT'S CONVICTION AND SENTENCE
                    IN CAUSE NO. 1318353R
           HONORABLE WAYNE SALVANT, PRESIDING
    FROM THE CRIMINAL DISTRICT COURT NUMBER TWO OF
                  TARRANT COUNTY, TEXAS



  APPELLANT'S PETITION FOR DISCRETIONARY REVIEW


August 28, 2015

                              Richard A. Henderson
                              State Bar No. 09427100
                         RICHARD A. HENDERSON, P.C.
                         100 Throckmorton Street, Suite 540
                               Fort Worth, Texas 76102
                              817-332-9602 - Telephone
                               817-335-3940 - Facsimile
                              richard(iirahenderson. corn

                  ATTORNEY FOR APPELLANT, THOMAs LESTER HARPER
                                            SUBJECT INDEX

IDENTITY OF PARTIES AND COUNSEL .......................................................ii,iii
TABLE OF AUTHORITIES....................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT...............................................1
STATEMENT OF THE CASE ................................................................................. 1
STATEMENT OF PROCEDURAL HISTORY.......................................................3
GROUND FOR REVIEW.........................................................................................3
REASONS FOR REVIEW .......................................................................................3
CONCLUSIONAND PRAYER...............................................................................7
CERTIFICATE OF COMPLIANCE ........................................................................8
CERTIFICATE OF SERVICE..................................................................................8
APPENDICES...........................................................................................................9
Appendix "A"
 (Opinion of the Court of Appeals Second District of Texas,
 Fort Worth, Texas)

Appendix "B"
 (Motion for Rehearing)
Appendix "C"
 (Order denying appellant's motion for rehearing)
                    IDENTITY OF PARTIES AND COUNSEL

        The following is a complete list of all parties pursuant to Texas Rules of

Appellate Procedure 68.4(a):


      1. Mr. Thomas Lester Harper
         TDCJ #01931894
         O.B. Ellis Unit
         1697 FM 980
         Huntsville, Texas 77343
         Defendant/Appellant

      2. Mr.Leo Haley, Jr.
         1319 Ballinger Street
         Fort Worth, Texas 76102
         Ms. Elizabeth Anne Miller
         Law Offices of Roderick C. White
         2201 Main Street, Ste 800
         Dallas, Texas 75201
         Mr. Ezekiel Tyson, Jr.
         Tyson Law Firm PLLC
         342 W. Montana Avenue
         Dallas, Texas 75224
         Trial Attorneys for Defendant

      3. THE STATE OF TEXAS
         Ms. Amy Collum
         Assistant Criminal District Attorney, Tarrant County
         Mr. Jack V. Strickland
         Assistant Criminal District Attorney, Tarrant County
         401 W. Belknap Street
         Fort Worth, Texas 76196
         Trial Attorneys



                                        11
  Mr. Charles Mallin
  Former Chief of Appellate
  Tarrant County District Attorney's Office
  Mr. Joe Shannon, Jr.
  Former Criminal District Attorney
  Tarrant County, Texas
  401 W. Belknap Street
  Fort Worth, Texas 76196

  Ms. Debra Windsor, Chief, Post -Conviction
  Assistant Criminal District Attorney
  Tarrant County, Texas
  401W. Belknap Street
  Fort Worth, Texas 76196

  Ms. Sharen Wilson
  Criminal District Attorney
  Tarrant County, Texas
  401 W. Belknap Street
  Fort Worth, Texas 76196
  Plaintiff/Appellee

4. Honorable Wayne Salvant
   Judge, Criminal District Court No. Two
   401 W. Belknap Street
   Fort Worth, Texas 76196
   Trial Judge

5. Richard A. Henderson
   Richard A. Henderson, P.C.
   100 Throckmorton Street
   Suite 540
   Fort Worth, Texas 76102
   Attorney for Appellant


                                111
                                   TABLE OF AUTHORITIES

CASES

Armstrong v. State, 179 S.W.3d 84 (Tex. App.— Fort Worth 2005)                                              .4

Juarez v.State, 308 S.W.3d 398,399 (Tex. Crim. App. 2010) ............................ 4,5,6




CODES:
Tex. Penal Code Ann. § 9.22..................................................................................4,6
Tex. Penal Code Ann. § 2.03(c)............................................................................. 5,6




                                                      iv
              STATEMENT REGARDING ORAL ARGUMENT


      Petitioner believes that oral argument would aid the court in deciding the

critical issues presented.

                             STATEMENT OF THE CASE


      This is an appeal from Cause Number 1318353R from Criminal District

Court Number Two, Tarrant County, Texas, the Honorable Wayne Salvant, judge

presiding. The two count indictment alleged murder with a deadly weapon, a

firearm. The plea was not guilty. The jury found Appellant guilty of murder.

The jury assessed punishment at life in the Institutional Division of the Texas

Department of Criminal Justice. The trial court denied a requested jury charge by

Appellant of necessity after Appellant had testified that he shot the decedent,

Clarence Robinson, but did so to protect his children.

      December 14, 2011 was a tragic and violent day in the City of Arlington,

Texas, specifically, at the intersection of Brown and Collins Streets, where a

deadly collision occurred.

      Appellant, while driving a Tahoe truck, with his twin children in the rear

seat, had a relatively minor collision at Collins and Washington Streets with a

vehicle in which Zachry Treible and Kay Lynn Head were riding. It was about 1:40

                                         1
in the afternoon. Appellant continued on Collins, accelerating at a high rate of

speed. As he approached the intersection of Brown and Collins, he struck a Dodge

Dakota, being driven by Najee Nazir. Appellant's speed was calculated at 93

miles per hour. Appellant never applied his brakes. A chain reaction collision

occurred, as other vehicles were struck. Najee Nazir was killed and pronounced

dead at the scene.

      The collision was captured on video from cameras at a nearby Valero gas

station. The impact is clearly visible on the video as is the sound, which witnesses

described as sounding like a bomb went off. The axle and wheel were knocked off

Nazee Nazir's Dakota and the wheel was found down a nearby hill in an apartment

parking lot. The Dakota, driven by Najee Nazir, is clearly visible in the Valero

video prior to the collision, as is the impact.

       After the collision, many people rushed up to help the injured. One of these

was Clarence Robinson who had been eating food at a nearby McDonald's. Zach

Treible approached Appellant's vehicle and saw Appellant incoherent and two

young children screaming in the back seat. Robinson was able to get one of the

children out of the vehicle while the child was still in a car seat. Appellant then

first pointed a gun at Treible, then at Robinson, and fired a shot at Robinson who

                                            2
immediately fell to the ground. He was dead at the scene. He had a soda straw

from McDonald's still in his mouth.

      Appellant testified in his defense. He admitted the conduct of killing

Robinson but that he did so because he felt it was necessary to protect his children.


                   STATEMENT OF PROCEDURAL HISTORY

      The Court of Appeals issued its Opinion affirming the conviction on July 2,

2015. A Motion for Rehearing was e-filed by Appellant on July 15, 2015. The

Motion for Rehearing was overruled by the Second Court of Appeals on July 30,

2015. This Petition for Discretionary Review is timely if filed on or before

August 29, 2015.


                            GROUND FOR REVIEW

GROUND FOR REVIEW: Is it reversible charge error to deny a requested
necessity instruction as a matter of law when an accused admits the underlying
conduct of murder but testifies he did so to protect his children?


                            REASONS FOR REVIEW

REASONS FOR REVIEW:

      The Court of Appeals in its opinion ruled that Appellant's assertion of

necessity was insufficient as a matter of law.

                                          3
         This court stated in Juarez v. State, 308 S.W.3d 398,399 (Tex. Crim. App.

2010), that when an accused admits the underlying conduct but states that it was

necessary, a jury instruction is mandatory no matter how weak the evidence may

seem. See also Armstrong v. State, 179 S.W.3d 84 (Tex. App.— Fort Worth

2005).

      In this case, the Appellant took the stand and specifically admitted to the

conduct. Appellant then stated he believed it was necessary to protect his children.

          In Juarez this court stated that necessity invokes the long-standing legal

doctrine of confession and avoidance. Two things must occur. First, a defendant

must admit to all elements of a charged offense before the defendant will be

entitled to a defensive instruction.      Alternatively, a defensive instruction is

required when the defendant's defensive evidence essentially admits to every

element of the offense, including the culpable mental state.


The defense of necessity is defined in Tex. Penal Code Ann. § 9.22 and states:

         Conduct is justified if:

      (1)           the actor reasonably believes the conduct is immediately

                    necessary to avoid imminent harm;




                                           4
      (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.

      In Juarez, the court also stated that the confession and avoidance doctrine

applies to the necessity defense, and acknowledged that the doctrine conflicts with

Tex. Penal Code Ann. § 2.03(c)'s general rule governing when a defensive

instruction is required. Section 2.03(c) states: "The issue of the existence of a

defense is not submitted to the jury unless evidence is admitted supporting the

defense." The defendant bears the burden of showing that each element of the

defense has been satisfied.

      This court also stated that a trial judge must, upon a defendant's proper

request, instruct the jury on every defensive issue raised by the evidence without

regard to its source or strength. Under this doctrine, it is of no consequence

"whether such evidence or testimony was produced by the prosecution or the

accused, or whether such defensive evidence or testimony might be strong, weak,

unimpeached, or contradicted."
      In Juarez, the court also stated that confession and avoidance doctrine's

requirement that a defendant admit to the conduct conflicts with Tex.Penal Code

Ann. § 2.03(c)'s general rule that a defense is supported by the evidence if there is

evidence from any source on each element of the defense.

The court further ruled:

      "However, this conflict does not disturb our determination that § 9.22

embraces the confession and avoidance doctrine. When interpreting statutes that

are in pari matenia and construed together, both are given effect with the special

governing over the general in the event of a conflict. In this instance, Tex.Penal

Code Ann. § 9.22's admission requirement governs the specific defensive issue of

necessity and therefore trumps Tex.Penal Code Ann. § 2.03(c)'s general rule."

      In the instant case, the Appellant admitted he shot and killed Clarence

Robinson but Appellant stated that he did so to protect his child, not knowing that

Clarence was actually trying to help.

      The issue was raised and the jury should have been instructed.
                           CONCLUSION AND PRAYER

      WHEREFORE, Appellant respectfully requests that the case be reversed

and rendered in his favor or at least for a new trial.

                                         Respectfully Submitted,

                                         RICHARD A. HENDERSON, P.C.
                                         Two City Place
                                         100 Throckmorton Street
                                         Suite 540
                                         Fort Worth, Texas 76102
                                         (Telephone) 817-332-9602
                                         (Telecopier) 817-335-3940
                                         E-mail:



                                               Richard A. Henderson
                                               State Bar No. 09427100

                                         ATTORNEY FOR APPELLANT
                                         THOMAS LESTER HARPER




                                         7
                     CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of TEx.R.APP. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations of TEx.R.APP. P. 9.4(i) because it contains 1,830 words,

excluding any parts exempted by TEx.R.APP.P. 9.4(i)(1), as computed by the

word-count feature of Microsoft Office Word 2010, the computer software used to

prepare the document.

                                            (_ LZ:O-al
                                             ichard A. Henderson


                         CERTIFICATE OF SERVICE

      A true copy of the Appellant's Petition For Discretionary Review has been

electronically served on opposing counsel, Ms. Debra Windsor, Assistant Criminal

District Attorney, Chief, Post-Conviction, Tarrant County District Attorney's

Office, 401 W. Belknap Street, Fort Worth, Texas 76196 and mailed U.S. Regular

Mail to Appellant, Mr. Thomas Lester Harper, TDCJ #01931894, Ellis Unit, 1697

                                    is!2 f t301
FM 980, Hunstville, Texas 77343 on thl     August


                                      R1iard A. Henderson

                                        8
APPENDICES
     APPENDIX "A"

      OPINION OF
   COURT OF APPEALS
SECOND DISTRICT OF TEXAS
      Fort Worth
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                            NO. 02-14-00189-CR

THOMAS LESTER HARPER                                            APPELLANT

                                      AA

THE STATE OF TEXAS                                                    STATE




     FROM CRIMINAL DISTRICT COURT NO.2 OF TARRANT COUNTY
                   TRIAL COURT NO. 1318353R



                                 [.i; i   ir.
                               I. Introduction

      In four issues, appellant Thomas Lester Harper appeals his murder

conviction. We affirm.

                   II. Factual and Procedural Background

      On December 14, 2011, at around 1:40 p.m., while under the influence of

marijuana, Harper was driving his Tahoe SUV on Collins Street in Arlington,
Texas. His two-year-old twins were in the back seat.' As Harper's vehicle

approached the intersection of Collins and Washington, the Tahoe sideswiped

the back of another vehicle that had stopped for the red light. Rather than stop

after the collision occurred, Harper continued through the intersection against the

red light. The driver and passenger of the rear-ended vehicle called 911 and

attempted to follow Harper's vehicle, but they could not keep up with Harper, who

was travelling over 80 miles per hour in a 35-mile-per-hour zone. The next time

they saw Harper's vehicle, it was "flying to the side of the road," having collided

with several other vehicles in the roadway. That second collision caused the

afternoon's first fatality, Najee Nasir, the driver of a gray pickup truck.

      911 callers at the scene of the second collision described it as a "massive

wreck" caused by "some guy [who] plowed through what look[ed] like half a

dozen cars" as he was speeding through the intersection.2 The Tahoe's front-

end was destroyed, its engine compartment and windshield were smashed,

some of the doors on the front side of the vehicle were bent, and the SUV was

smoking and leaking fluids. Harper's children could be heard crying inside.

      Several bystanders, including the driver of the vehicle that had been

sideswiped in the first collision, rushed to Harper's vehicle to render aid. One of

       "The children were secured in dangerous "booster seats," instead of the
more protective and age-appropriate safety seats. Booster seats are designed
for older children.

     2The engine diagnostic recorder from Harper's vehicle did not indicate that
Harper applied his brakes.


                                           FA
the first good Samaritans to arrive, eighteen-year-old Clarence Robinson,

attempted to rescue Harper's children from the back seat of his smoking SUV.

After Robinson managed to release the first child from the mangled, smoking

vehicle, Harper pulled out a handgun and shot him, causing both Robinson and

the child to fall to the ground. See Tex. Penal Code Ann. § 19.02(b) (West

2011). The child's empty car seat remained on top of Robinson's body until

police were able to arrest Harper, and the child crawled in the street until

someone was able to pick her up.

      In the meantime, John Derichweiler, a peace officer employed by the

Department of Homeland Security's Federal Protective Service, who had just left

a nearby restaurant, arrived at the scene of the collision. As he pulled his

marked vehicle behind one of the cars, a man approached him, yelling "he's still

got a gun,"3 pointing toward Harper's vehicle. Realizing that he was witnessing

more than just a traffic accident, Inspector Derichweiler grabbed his shotgun,

directed onlookers to get away from the SUV, and ordered the driver to "show

[his] hands." Harper did not comply,4 but after issuing his command, Inspector

Derichweiler did see two little hands appear out of the back seat window. At that


      3Several of the 911 callers were still on the phone reporting the collisions
when they heard Harper's gunshot and saw it scatter the people who were trying
to help. One of the callers reported that while people were trying to rescue the
injured, Harper "just shot the man who was trying to take his baby out [of] the
car."

      4Harper   never complied with the order to show his hands.


                                         3
point, realizing that there was a child in the back seat, Inspector Derichweiler

kept his gun aimed at Harper and waited for other emergency units to arrive

before attempts were made to handcuff Harper and remove him from the

vehicle.5

      The fire department had to use the "jaws of life" to extract Harper from the

vehicle after he was placed in handcuffs. Inspector Derichweiler then secured

his shotgun, cut the seatbelt off the remaining child, and helped pull the child out

of the window and away from the SUV.6

      Three hours later, after Harper had been released from the hospital he had

been transported to for medical treatment, he was escorted to jail. That day,

Harper left behind two dead in his wake—Nasir, the driver of the gray pickup

truck whose medical needs could not be attended to while the officers were

required to focus on Harper, and Robinson, the good Samaritan who Harper shot

with his handgun.

      At the close of evidence in the trial for Robinson's murder, Harper

requested a jury instruction on necessity, and the trial court denied the request.

The jury found Harper guilty of murder as charged in the indictment.

       5lnspector Derichweiler testified that during this time, another citizen
sought his help with Nasir, the man in the gray pickup, who had been seriously
injured in the collision. He recalled, "[H]e's like, [t]hat dude is dying in there, he's
dying in there," but Inspector Derichweiler explained that he was unable to attend
to the injured man's needs at that time. Instead, he responded, "Let me deal with
the guy with the gun first."

      6Harper   and his children were uninjured.


                                           4
      During the punishment phase of the trial, Harper requested a jury

instruction on sudden passion, and the trial court denied the request. The jury

assessed Harper's punishment at confinement for life and a $10,000 fine.

                                III. Jury Charge

      In his first two issues, Harper argues that the trial court erred by denying

jury instructions on necessity and sudden passion, contending that these

instructions were required based on his testimony that he shot Robinson but

believed the shooting was necessary to protect his children.

A. Standard of Review

      In our jury charge review, we first determine whether error occurred; if

error did not occur, our analysis ends. Kirsch v. State, 357 S.W.3d 645, 649

(Tex. Grim. App. 2012). A trial court may refuse an instruction on a defensive

theory if the issue was not raised by the evidence. Murkiedove v. State, 437

S.W.3d 17, 21 (Tex. App.—Fort Worth 2014, pet. dism'd, untimely filed) (citing

Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Grim. App. 2007), cert. denied,

553 U.S. 1059 (2008)). When reviewing a trial court's decision to deny a

requested defensive instruction, we view the evidence in the light most favorable

to the defendant's requested submission. Id. (citing Bufkin v. State, 207 S.W.3d

779, 782 (Tex. Crim. App. 2006)).




                                        5
B. Evidence

      Harper testified that on the day of these events, he either blacked out for "a

little split second ,7 or fell asleep and then was hit by a vehicle.8 Harper testified

that his foot remained on the gas, and he accelerated. He posited that his truck's

accelerator had malfunctioned,9 and he remembered his vehicle being hit again

and spinning out before his airbag deployed, leaving him in and out of

consciousness and in a daze. He said he recalled his children "yelling and

whining and crying or whatnot" but they did not appear to be injured on the

outside.




      7 Harper's  urine and blood tested positive for marijuana, but Harper denied
having smoked marijuana on December 14, claiming it had been a month since
his last use. He nonetheless acknowledged that marijuana was in his system on
that day.      A police officer testified that Harper had laughed, spoken
nonsensically, and mugged for the news cameras after his arrest, and a
television clip taken by a media helicopter showing Harper's post-arrest behavior
was admitted into evidence. The DWI officer who received Harper's consent to a
blood draw testified that he appeared drowsy and, based on his bloodshot eyes,
delayed response, and repetitiveness in asking the same questions over and
over, she suspected that he was under the influence of marijuana. The chief
toxicologist for the Tarrant County Medical Examiner's Office testified that the
side effects of tetrahydrocannabinol (THC), the active ingredient in marijuana,
can be severe, ranging from increased appetite, drowsiness, confusion, and red,
watery eyes to impaired judgment and hallucinations.

      8The driver and passenger of the first vehicle that Harper hit testified that
Harper's vehicle hit theirs from behind while they were stopped at a red light.

      9The  State's collision reconstruction ist testified that he found nothing
mechanical in his overall inspection of Harper's vehicle that would have either
caused the vehicle to spontaneously accelerate to a high speed or prevented the
driver from braking or steering.


                                          Li
      Harper said that after the collision, he heard someone say, "You need

some help?" and that he responded, "No, I don't. I'm okay," because he could

hear sirens and knew "some real help" was about to arrive.10 He recalled saying,

"Stop," when he saw an arm go through the window by his daughter, unlock the

door, and then open the door. Harper said that he saw an arm cross his

daughter's lap to unbuckle her seat belt and that a man grabbed his daughter's

car seat when the seat belt came unlatched. His daughter started yelling, and

that noise "triggered" something in him. Harper turned around and started

looking for his gun, found it on the floorboard by the gas pedal, grabbed it, turned

back around, and fired it.11 Harper said that he fired the weapon because he felt

like his children were in danger but that no one was listening to him. He also

said that at that moment, he did not know that the person he shot was trying to

help and that he did not understand what was going on.



      1013ecause      the collisions had completely stopped the flow of traffic,
numerous people were gathered at the scene. One of the would-be rescuers
testified that he yelled at Harper to see if he was okay, trying to get his attention,
but that he received no acknowledgment even though Harper was conscious.

      "One of the children's would-be rescuers testified that he backed up after
seeing Harper pull out the handgun, point it, and say, "It's your bad day."
Another said he did not hear Harper say anything before he fired the gun. Two
more testified that when they asked Harper if he needed to get his children out of
the car, Harper replied, "Real recognize real," and that while they were trying to
help the children, Harper said, "Get the fuck away from my car." The mother of
Harper's twins explained that "real recognize real" means "real honest people
know real honest people type thing" but said that she did not "speak a lot of
signs."


                                          7
      During cross-examination, Harper agreed that he had testified that on

December 14, 2011, he intentionally or knowingly caused Robinson's death by

shooting him, that he also denied that he had intentionally engaged in the

conduct that resulted in Robinson's death, and that he had also said that he did

not intend to kill Robinson.12 Harper testified that it was easier to shoot Robinson

because he did not know him and that Robinson's taking his child changed

everything.

      Several witnesses testified that they never saw any indication that

Robinson was armed or presented any danger and that they believed that

Robinson was trying to help the two young children that were crying in the back

seat of the smoking vehicle. Harper agreed that he did not see anything that

would have caused an ordinary prudent person to believe that Robinson had a

weapon, nor did he see Robinson with any deadly weapon. He further testified




      12
         The confession-and-avoidance doctrine applies to the necessity defense,
requiring a defendant to admit the conduct—both the act and the culpable mental
state—of the charged offense to be entitled to a necessity instruction. Juarez v.
State, 308 S.W.3d 398, 399, 405 (Tex. Crim. App. 2010); see Tex. Penal Code
Ann. § 1.07(a)(10) (West Supp. 2014) (defining conduct to mean an act or
omission and its accompanying mental state); cf. Tex. Penal Code Ann. § 2.03(c)
(West 2011) (stating that the issue of a defense is not submitted to the jury
unless evidence is admitted that supports the defense). Harper was charged
with having intentionally or knowingly caused Robinson's death by shooting him
with a firearm and with having intentionally, with the intent to cause serious bodily
injury to Robinson, committed an act clearly dangerous to human life by shooting
Robinson with a firearm, which caused Robinson's death.
that at the time he discharged his own weapon, he did not know what he was

trying to protect his daughter from.13

      When asked whether he could not have fired a warning shot as an

alternative, Harper acknowledged that he could have done so but said, "I asked

him not to more than once." He also acknowledged that he had used a hollow-

point bullet and that the purpose of such a bullet is to kill.14 Harper had bullets

left in his gun after shooting Robinson, but he did not fire at anyone else.

      Harper admitted that he did not hear or see Robinson do anything except

try to save his children. After he realized that his bullet had made contact with

Robinson, Harper testified that he "just laid back down" and slumped over for his

own protection because he did not know what was going on outside his vehicle

and he was still sleepy.

C. Necessity

      A necessity instruction states, in pertinent part, that conduct is justified if

the actor reasonably believes the conduct is immediately necessary to avoid

imminent harm. Tex. Penal Code Ann. § 9.22(1) (West 2011). This prong of the

necessity defense requires evidence of a reasonable belief of both immediate


       13
        Harper said, "I'm not sure," when asked whether he thought Robinson
had a deadly weapon. He said, "Yes, sir," when asked, "Just like you weren't
sure that [Robinson] meant you any harm, but you shot him anyway, right?"
       14
       The Tarrant County Medical Examiner's Office firearm and tool mark
examiner testified that a hollow-point bullet is designed to expand when it hits
flesh.
necessity and imminent harm. However, a defendant's sincere belief that his

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 legally defined. Murkledove, 437

S.W.3d at 25; see Arnwine v. State, 20 S.W.3d 155, 159 (Tex. App.—Texarkana

2000, no pet.) ("The defense of justification based on necessity is assessed from

the standpoint of the accused."). The penal code defines "reasonable belief' as

"a belief that would be held by an ordinary and prudent man in the same

circumstances as the actor." Tex. Penal Code Ann. § 1.07(a)(42). It defines

"harm" as "anything reasonably regarded as loss, disadvantage, or injury,

including harm to another person in whose welfare the person affected is

interested." Id. § 1.07(a)(25). "Imminent," while not defined in the penal code,

means "something that is immediate, something that is going to happen now."

Murkledove, 437 S.W.3d at 25 (quoting Dewalt v. State, 307 S.W.3d 437, 454

(Tex. App.—Austin 2010, pet. ref'd)). Harm is imminent when there is an

emergency situation and avoiding that harm requires a "split-second decision"

without time to consider the law. Id.

      As set out above, the trial court did not err by denying Harper's requested

necessity instruction because Harper did not show that he was entitled to the

defense. At most, he produced evidence of his generalized fear and confusion

after the collision and produced evidence that in his fugue state, which other

evidence in the record reflected was due to his drug use, he shot and killed an


                                        Me
unarmed young man who, like others that Harper did not shoot, had tried to help

him and his children after a catastrophic multiple-car collision. None of the

evidence during the seven-day trial showed that Harper's shooting Robinson was

immediately necessary to avoid imminent harm, or that an ordinary, prudent

person in Harper's circumstances would have believed that it was.

      To the contrary, the record proves quite the opposite. The record reflects

that Harper's belief that it was necessary to shoot and kill a person helping his

children escape from a mangled, smoking vehicle was unreasonable as a matter

of law. See 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,

not by a paranoid psychotic."), cert. denied, 131 S. Ct. 1606 (2011); Jackson v.

State, 50 S.W.3d 579, 595 (Tex. App.—Fort Worth 2001, pet. ref'd) (stating that

even if appellant had been scared of his pursuer, his testimony only raised an

issue of the necessity to continue driving, not to drive over the speed limit,

disregard traffic control devices, and veer into oncoming lanes of traffic); see also

Washington v. State, 152 S.W.3d 209, 212 (Tex. App.—Amarillo 2004, no pet.)

("[T]he defendant's belief that his conduct was immediately necessary may be

deemed unreasonable as a matter of law if the undisputed facts demonstrate a

complete absence of immediate necessity or imminent harm."). Because the

record reflects that Harper's use of deadly force was not immediately necessary

and did not avoid a greater, imminent harm, a necessity instruction was not the

law applicable to the case. See Tex. Penal Code Ann. §§ 1.07(a)(42), 9.22;


                                         11
Am wine, 20 S.W.3d at 160 (observing that the existence of lawful alternatives to

the commission of a criminal act may preclude a defendant from the defense of

justification by necessity). We overrule Harper's first issue.

D. Sudden Passion

      At the punishment stage of a murder trial, the defendant may raise the

issue as to whether he caused the death "under the immediate influence of

sudden passion arising from an adequate cause." Tex. Penal Code Ann.

§ 19.02(d) (stating that if the defendant proves the sudden-passion issue in the

affirmative by a preponderance of the evidence, the offense is a second-degree

felony). "Adequate cause" means "cause that would commonly produce a

degree of anger, rage, resentment, or terror in a person of ordinary temper,

sufficient to render the mind incapable of cool reflection."      Id. § 19.02(a)(1).

"Sudden passion" means "passion directly caused by and arising out of

provocation by the individual killed . . . which passion arises at the time of the

offense and is not solely the result of former provocation." Id. § 19.02(a)(2).

       The defendant has the burden of production and persuasion with respect

to the issue of sudden passion, and to justify a jury instruction on the issue during

the punishment phase, the record must at least minimally support an inference:

(1) that the defendant in fact acted under the immediate influence of a passion

such as terror, anger, rage, or resentment; (2) that his sudden passion was in

fact induced by some provocation by the deceased or another acting with him;

(3) that he committed the murder before regaining his capacity for cool reflection;


                                          12
and (4) that a causal connection existed between the provocation, passion, and

homicide. Wooten v. State, 400 S.W.3d 601, 605 (Tex. Crim. App. 2013). A

sudden passion charge should be given if there is some evidence to support it,

even if that evidence is weak, impeached, contradicted, or unbelievable. Trevino

v. State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003).

      However, the evidence should not be so weak, contested, or incredible

that it could not support a finding by a rational jury. Davis v. State, 268 S.W.3d

683, 693 (Tex. App.—Fort Worth 2008, pet. ref'd). A mere claim of fear does not

establish the existence of sudden passion arising from an adequate cause.

Gonzales v. State, 717 S.W.2d 355, 357 (Tex. Crim. App. 1986) (stating that for

a claim of fear to rise to the level of sudden passion, the defendant's mind must

be rendered incapable of cool reflection); see also Fry v. State, 915 S.W.2d 554,

559 (Tex. App.—Houston [14th Dist.] 1995, no pet.) (stating that there must be

some evidence of immediate provocation that led to the homicide). And

"[o]rdinary anger or causes of a defendant's own making are not legally adequate

causes." Hernandez v. State, 127 S.W.3d 206, 211 (Tex. App.—Houston [1st

Dist.] 2003, pet. ref d).

      As set out above, none of the evidence15 showed that Harper experienced

"sudden passion" as defined by the statute, provocation by Robinson—who tried


       15
        During the punishment phase, the trial court admitted evidence about
Nasir, the motorist who died from the collision. The jury also heard from another
witness at the scene who saw Harper when the police removed him from the
SUV. The witness testified that Harper appeared belligerent and under the

                                        13
to do no more than the other would-be rescuers that Harper did not shoot—or an

adequate causal connection between the provocation, passion, and homicide.

See, e.g., Davis, 268 S.W.3d at 698 ("Davis points to no evidence in the record

indicating that [the deceased] acted in a manner that would produce an emotion

sufficient to render the mind of a person of ordinary temper incapable of cool

reflection."); see also Ayers v. State, 606 S.W.2d 936, 940 (Tex. Crim. App.

1980) (concluding that appellant's medical incapacities—hypertension, coronary

artery disease, heart enlargement, and periods of semi-consciousness—had no

bearing on the evaluation of his response to provocation); Lucas v. State, No. 12-

13-00378-CR, 2015 WL 1061498, at *3 (Tex. App.—Tyler Mar. 11, 2015, no pet.)

(mem. op., not designated for publication) ("The record indicates that Appellant

was mentally ill, intoxicated, and hallucinating when he killed Cobb, but these

factors are not applicable in determining adequate cause."); Miller v. State, 770

S.W.2d 865, 867 (Tex. App.—Austin 1989, pet. ref'd) (stating that the statute

does not contemplate what would constitute adequate cause from the

perspective of an individual with impaired impulse control because "[t]he test is

the response by a person of ordinary temper"). Therefore, the trial court did not

err by denying the requested instruction, and we overrule Harper's second issue.




influence, that Harper shouted profanities, and that when he took a photo of
Harper, he heard Harper say, "I'd fucking do it again." Harper's older sister
testified for the defense.


                                        14
                                   IV. Mistrial

      In his remaining two issues, Harper argues that the trial court erred by

denying his request for a mistrial based on the prosecutor's statements, which he

contends were made solely with the intent to inflame the minds of the jurors.

      Except in extreme cases, when it appears that the question is "'clearly

calculated to inflame the minds of the jury and is of such character as to suggest

the impossibility of withdrawing the impression produced on their minds," asking

an improper question may be generally cured or rendered harmless by a

withdrawal of the question and an instruction to disregard. Gonzales v. State,

685 S.W.2d 47, 49 (Tex. Grim. App.) (quoting White v. State, 444 S.W.2d 921

(Tex. Grim. App. 1969)), cert. denied, 472 U.S. 1009 (1985). To cause a

reversal, the question must be obviously harmful to the defendant. Id.

      The determination as to whether a given error calls for a mistrial must be

made by examining the particular facts and circumstances of each case.

Hernandez v. State, 805 S.W.2d 409, 414 (Tex. Grim. App. 1990), cert. denied,

500 U.S. 960 (1991). When the trial court sustains an objection and instructs the

jury to disregard but denies a defendant's motion for mistrial, the issue is whether

the trial court abused its discretion by denying the request for mistrial. See

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). In determining

whether a trial court abused its discretion by denying a mistrial, we balance three

factors: (1) the severity of the misconduct (prejudicial effect); (2) curative

measures; and (3) the certainty of conviction absent the misconduct. Id.; Mosley


                                        15
v. State, 983 S.W.2d 249, 259 (Tex. Grim. App. 1998) (Op. on reh'g), cert.

denied, 526 U.S. 1070 (1999).

      In his third issue, Harper complains that he should have received a mistrial

when the prosecutor referred to Robinson's death as an execution during

Arlington Police Detective David Szatkowski's testimony:

           Q. Okay. Now, this revolver, State's Exhibit 96, that Mr.
      Harper had that day holds five rounds, right?

            A. Yes, ma'am.

            Q. At a time. He used one of those rounds to execute
      Clarence Robinson, correct? [Emphasis added.]

                  [Defense counsel]: Your Honor, I'm going to object to
                  the term "execution."

                  [Trial Court]: That's sustained.

                  [Defense counsel]: And I'd ask the jury to disregard
                  such comment.

                  [Trial Court]: Rephrase it, [prosecutor].

                  [Prosecutor]: Thank you.

            Q. [Prosecutor]: He used one of the rounds—

                  [Defense counsel]: Excuse me. Excuse me. Judge, I
                  would respectfully request the Court to ask the Jury to
                  disregard the comment.

                  [Trial Court]: Jury will disregard it, the word.

                  [Defense counsel]: And as required by law, I'd ask for a
                  mistrial.

                  [Trial Court]: Okay. That's denied.



                                        iE
            Q. He used one of those rounds to shoot Clarence Robinson,
      correct?

            A. Yes.

      A few minutes earlier, Detective Szatkowski had testified that Robinson

had died on December 14, 2011, because of a gunshot wound "to the head."

The detective then testified that he did not see Harper shoot Robinson but that

the weapon—which still contained four live rounds of ammunition—was

recovered from Harper, along with ten additional rounds, when he was taken into

police custody.

      The Tarrant County chief medical examiner testified that the gunshot

wound was to the left side of the forehead, around four inches below the top of

the head and three inches in front of the left ear, and the autopsy diagram of the

wound's location showed it just above the left eye. He testified about stippling,

which is produced by burning and unburned particles of gunpowder that leave

the gun's muzzle and pinch or hit the body surface and embed in the skin "if the

target is within the range," which he said would be within three or four feet.

Robinson had stippling on the side of his head from the gunshot.

      Based on the above, the record reflects that Harper shot Robinson in the

head from within a three- or four-foot distance and killed him without justification.

In light of the trial court's instruction to disregard, Detective Szatkowski's

preceding testimony that Robinson had died of a gunshot wound to the head,

and the certainty of Harper's conviction based on the undisputed facts of this



                                         17
case, we cannot conclude that the probable effect of the use of the term

"execute," as opposed to "shoot," albeit inappropriate, adversely affected

Harper's rights so as to present reversible error. See Jackson v. State, 649

S.W.2d 317, 321-22 (Tex. App.—Amarillo 1983, no pet.) (holding that

prosecutor's reference to appellant as "garbage" did not warrant mistrial when

the evidence clearly showed his guilt as charged in the indictment). We overrule

Harper's third issue.

      Finally, Harper contends that the prosecutor asked other inflammatory

questions and made inappropriate sidebar comments. However, Harper admits

that he did not object to any of these additional questions and comments.16

Because these complaints were not preserved for our review, see Tex. R. App.

P. 33.1, we overrule his final issue. See Ford v. State, 305 S.W.3d 530, 532

(Tex. Crim. App. 2009) ("If an issue has not been preserved for appeal, neither

the court of appeals nor this Court should address the merits of that issue.").

                                  V. Conclusion

      Having overruled all of Harper's issues, we affirm the trial court's judgment.


                                                   1st Bonnie Sudderth
                                                   BONNIE SUDDERTH
                                                   JUSTICE


      16
         Despite rule of appellate procedure 33.1's requirement that error be
preserved, Harper nonetheless complains that the trial court should have
intervened to grant him a mistrial without requiring him to object, request any
instructions to disregard the inflammatory remarks, or request the mistrial.


                                         iE]
PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.



DELIVERED: July 2, 2015




                                19
                                      LWA
                           COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-14-00189-CR

Thomas Lester Harper                      § From Criminal District Court No. 2

                                          § of Tarrant County (1318353R)

V.                                        §    July 2,2015

                                          § Opinion by Justice Sudderth

The State of Texas                         § (p)

                                     JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was no error in the trial court's judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS

                                       By Is/ Bonnie Sudderth
                                          Justice Bonnie Sudderth
    APPENDIX "B"

MOTION FOR REHEARING
                     IN THE COURT OF APPEALS
                 FOR THE SECOND DISTRICT OF TEXAS
                        FORT WORTH, TEXAS

                                   NO. 02-14-00189-CR

THOMAS LESTER HARPER,
       APPELLANT                                  From Criminal District Court No.2
                                           11
                                           ff     of Tarrant County
VS.                                        11
                                           ff     Trial Court Case No.1318353R

                                                  Opinion by Justice Sudderth

THE STATE OF TEXAS,                               July 2, 2015
        APPELLEE

                     APPELLANT'S MOTION FOR REHEARING
TO THE HONORABLE COURT OF APPEALS:

         COMES NOW, Thomas Lester Harper, Appellant in the above-styled and

numbered appeal, and, pursuant to Rule 49.5(c) of the Texas Rules of Appellate Procedure,

hereby files this Motion for Rehearing, and asks the Court to reconsider and withdraw its

opinion of July .2, 2015 and shows as follows:

      1. The Court in its opinion cites Murkeldove v. State, 437 S.W.3d 17 (Tex. App.— Ft.
         Worth 2014) for the premise that Appellant's requested instruction on necessity
         defense was properly denied by the trial court because an accused must have a
         sincere belief that the conduct is necessary to avoid imminent harm and that denial
         is proper if the undisputed facts demonstrate that there is a complete lack of
         necessity as a matter of law.
      2. Appellant believes that the facts in Murkiedove are distinguishable. In Murkeldove,
         Appellant went to a residence with a co-defendant to commit a burglary.

Appellant's Motion for Rehearing                                                     Page 1
      Murkiedove knew that the co-defendant intended to kill the victim if the victim
      was present. The co-defendant shot and killed the victim and Murkiedove was
      convicted of capital murder as a party. Murkiedove urged that he raised the issue
      of necessity in Murkiedove 's confession.
   3. In the current case, Appellant testified that he shot and killed the victim because he
      felt it was immediately necessary to protect his children. The court in its opinion
      states that Appellant testified that his children were in danger and that no one was
      listening to him.
   4. No matter how weak, the necessity instruction must be given.
   5. Certainly other witnesses testified that the children were not in any apparent
      danger. Appellant made several concessions under cross, but there was evidence
      directly from Appellant that he believed he needed to shoot the victim because he
      felt like his children were in danger.
   6. It may appear weak, but it was some evidence and the requested instruction of
      necessity should have been given. Juarez v. State, 308 S.W.3d 398.399 (Tex.
      Crim. App. 2010).
   7. Appellant respectfully requests the court to reconsider its opinion ruling against
       Appellant and withdraw its opinion, reverse and remand the case to the trial court.


    WHEREFORE, PREMISES CONSIDERED, Appellant respectfully requests the court
to reconsider its opinion of July 2, 2015 and prays the court to withdraw its opinion, reverse
and remand the case to the trial court.




Appellant's Motion for Rehearing                                                       Page 2
                                        Respectfully submitted,

                                        RICHARD A. HENDERSON P.C.
                                        100 Throckmorton Street, Suite 540
                                        Fort Worth, Texas 76102
                                        Telephone: 817-332-9602
                                        Facsimile: 817-335-3940
                                        richard ,rahenderson. corn


                                         r&~l- DE4
                                           1i     —,
                                        Richard A. Henderson
                                        State Bar No. 09427100

                                         ATTORNEY FOR APPELLANT



                            CERTIFICATE OF SERVICE

       A true copy of the Appellant's Motion for Rehearing has been electronically served
on opposing counsel, Ms. Debra A. Windsor, Assistant Criminal District Attorney,
Post-Conviction, Tarrant County District Attorney's Office, 401 W. Belknap Street, Fort
Worth, Texas 76196, via the State's e-mail address, coappellatealerts@tarrantcounty.com
and mailed, U.S. Regular Mail to Appellant, ThomLester Harper, TDCJ #0193 1894,
Ellis Unit, 1697 FM 980, Huntsville, Texas 7;-34'-3 o the 45 dy o/J4y 2015.




Appellant's Motion for Rehearing                                                  Page 3
         APPENDIX "C"
ORDER ON MOTION FOR REHEARING
                         COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                              NO. 02-14-00189-CR


THOMAS LESTER HARPER                                                 APPELLANT

                                         V.

THE STATE OF TEXAS                                                         STATE




   FROM THE CRIMINAL DISTRICT COURT NO.2 OF TARRANT COUNTY
                   TRIAL COURT NO. 1318353R



                                    ORDER



      We have considered "Appellant's Motion for Rehearing."

      It is the opinion of the court that the motion for rehearing should be and is

hereby denied and that the opinion and judgment of July 2, 2015, stand

unchanged.

      The clerk of this court is directed to transmit a copy of this order to the

attorneys of record.
    SIGNED July 30, 2015.


                                       Is! Bonnie Sudderth
                                       BONNIE SUDDERTH
                                       JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.




                                2
