      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00578-CR



                                      Erik Trove, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
           NO. 9044129, HONORABLE JON N. WISSER, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted appellant Erik Trove of retaliation for mailing threatening letters to

this Court. See Tex. Penal Code Ann. § 36.06 (West Supp. 2006).1 He was sentenced to twenty-five

years in prison. In two points of error, Trove contends that the trial court erred by excluding

evidence that he claims supports his affirmative defenses of duress and necessity and by refusing to

instruct the jury to consider these defenses. We conclude that there was no connection between the

proffered evidence and the affirmative defenses of duress and necessity. The proffered evidence was

properly excluded. We further conclude that, because there was no evidence to support the

submission of either affirmative defense to the jury, the court properly refused to instruct the jury

to consider them. We affirm the trial court’s judgment.


       1
         Since Trove mailed the letter on May 7, 2003, this section of the Penal Code has been
amended; however, the portions relevant to Trove’s conviction were unaffected. See Act of May 22,
2001, 77th Leg., R.S., ch. 835, § 1, 2001 Tex. Gen. Laws 1669, 1669.
                                  Factual and Procedural Background

                    In 1983, Trove was convicted of murder and sentenced to thirty years in prison. He

is serving his sentence in the French Robertson Unit in Abilene, Texas. Trove complains of

mistreatment during his incarceration, both by Texas Department of Criminal Justice (TDCJ)

officials and by other inmates. According to Trove, much of the mistreatment he suffers arises from

the refusal of TDCJ officials to accommodate his need for modified treatment due to chronic medical

conditions. Scar tissue resulting from a mastoidectomy2 causes blood to clot in Trove’s ear, which

requires his ear canal to be evacuated every six months. Because of this condition, Trove’s doctors

have ordered that he not be subjected to blunt trauma to his head and that he should, therefore, be

separated from gang members to protect him from gang violence. Trove testified that, despite his

condition, he has suffered numerous attacks by guards and by other inmates. Trove also suffers from

asthma. Prison doctors have ordered that he be removed from the area when tear gas is used to

subdue prisoners in nearby cells. According to Trove, TDCJ officials ignore these orders.

                    When Trove went on a hunger strike in 1998, TDCJ officials force-fed him to keep

him alive. Trove filed a civil lawsuit against Wayne Scott, then acting director of the TDCJ,

requesting a temporary restraining order to prevent TDCJ from doing anything to prolong or save

his life. The motion was denied by the trial judge. A panel of judges of this Court affirmed the trial

court’s decision to deny injunctive relief. The opinion was filed July 29, 1999. See Trove v. Scott,

No. 03-99-00118-CV, 1999 Tex. App. LEXIS 5535 (Tex. App.—Austin 1999, no pet.).




           2
               A mastoidectomy is a surgical procedure to remove an infected portion of the bone behind
the ear.

                                                     2
               On August 14, 2000, this Court began receiving threatening letters from Trove. The

letters continued despite an August 16, 2000, order by this Court prohibiting any further

communication of this kind from Trove. The specific basis for Trove’s indictment in the instant case

was his letter of May 7, 2003, directed to two of the justices on the panel. In this letter, Trove

threatened the lives of the justices and their families.

               Trove admitted to writing and mailing the letter but pleaded not guilty to the offense

by reason of the affirmative defenses of duress and necessity. At trial, the State objected to Trove’s

introducing evidence of alleged mistreatment as support for these defenses, arguing that any such

evidence was irrelevant unless Trove could show an imminent threat of death or serious bodily

injury. The trial court excluded the evidence. Over the State’s objections, however, Trove testified

to mistreatment, “sufferings,” and “torture.” However, at the conclusion of trial, the court refused

to give the jury instructions to consider duress or necessity. The jury found Trove guilty of

retaliation, and the court sentenced him to twenty-five years in prison.

               On appeal, Trove complains of the trial court’s ruling excluding evidence of his

alleged mistreatment. Further, he complains of the court’s failure to instruct the jury on the

affirmative defenses of duress and necessity.


                         Exclusion of Evidence of Affirmative Defenses

               An appellate court reviews a trial court’s decision to admit or exclude evidence for

abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on

reh’g). A trial court abuses its discretion only when its decision lies outside the zone of reasonable

disagreement. Id.

                                                   3
               To determine whether evidence was properly admitted or excluded, we first consider

whether the evidence is relevant. Relevant evidence is “evidence having any tendency to make

the existence of any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Tex. R. Evid. 401. Courts must look at the

purpose for offering the evidence and whether there is a direct or logical connection between

the offered evidence and the proposition to be proved. Schier v. State, 60 S.W.3d 340, 343

(Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).

               Trove argues that his proffered evidence should have been admitted because it

supports his affirmative defenses of duress and necessity. Through an offer of proof, Trove provided

the trial court a list of TDCJ witnesses who, according to Trove, were willing to testify to his

medical condition and mistreatment. In his offer of proof, Trove alleged that these witnesses would

have testified to the following:


       1.      Trove’s medical condition and special needs;

       2.      The existence of medical orders requiring Trove’s removal from the vicinity before
               tear gas is used;

       3.      Guards’ knowledge of, but disregard for, these medical orders;

       4.      Trove’s confinement to a room with no ventilation, causing him to suffer heat stroke
               and to be hospitalized;

       5.      Trove’s mistreatment generally;

       6.      General conditions at the prison facility; and

       7.      The consistent and frequent use of tear gas at the prison facility.




                                                 4
In addition, Trove claims that two TDCJ nurses would have testified that they had been providing

Trove with medication not documented in the medical records because he was not getting necessary

medical treatment.

                In light of Trove’s admission to writing and mailing the May 7, 2003 letter, the

evidence proffered by Trove in his offer of proof is admissible only if it is relevant to the affirmative

defenses of duress and necessity. See id. Trove claims that he was compelled to write and mail the

threatening letter because of how he alleges he was being treated by the prison staff. Thus, in order

for the proffered evidence to be admissible, there must be a connection between Trove’s allegations

of mistreatment and the elements of the affirmative defenses of duress and necessity.


Duress

                Duress requires that “the actor engaged in the proscribed conduct because he

was compelled to do so by threat of imminent death or serious bodily injury to himself or another.”

Tex. Penal Code Ann. § 8.05(a) (West 2003). None of the evidence proffered by Trove tends to

show that he was required to write threatening letters to this Court to avoid imminent death or

serious bodily injury. The fact that Trove alleges mistreatment at the hands of prison officials and

inmates—even if true—is not evidence that he was compelled to write threatening letters to judges

by threat of death or serious bodily injury. There is no logical connection between his allegations

of mistreatment as proffered and any compulsion to write the May 7, 2003 letter. The proffered

evidence was not relevant to Trove’s duress defense and was properly excluded.

                Trove relies on Miller v. State to support his contention that the proffered evidence

should have been admitted as relevant to his duress defense. Miller v. State, 36 S.W.3d 503

                                                   5
(Tex. Crim. App. 2001). In Miller, the defendant was convicted of delivery of a controlled

substance. Id. at 504. On appeal, she challenged the trial court’s exclusion of certain evidence

relating to her affirmative defense of duress. Id. According to the defendant, she sold cocaine to an

undercover officer because she was afraid that another man, James Magee, would harm her if she

did not. Id. at 505. The evidence in Miller showed that the defendant was, in fact, assaulted by

Magee after she delivered the cocaine. Id. The court concluded that the evidence was relevant to

her duress defense. Id. at 508. A reasonable jury could have found that the subsequent assault

shows that she was under duress from Magee, that she feared for her safety, and that her fear was

reasonable. Id.

               In Miller, the proffered evidence supported appellant’s contention that if she did not

perform the act in question—delivery of the cocaine—she faced serious harm. The fact that she did,

indeed, suffer the harm following her performing the act was relevant to show duress. Here,

however, there is no evidence to show that Trove was ever threatened with serious bodily injury if

he did not perform the act in question—writing threatening letters to members of this Court.

               Trove emphasizes that, in Miller, the court admitted the proffered evidence without

regard to its weight or credibility. He argues that, likewise, he should be permitted to present his

evidence to the jury and that the jury should determine its weight. Here, however, none of the

proffered evidence, even taken as true, tends to show that Trove was threatened with imminent death

or bodily injury if he failed to write the May 7, 2003 letter. None of the proffered evidence has any

direct or logical connection to the elements of duress.




                                                 6
               We conclude that the proffered evidence had no reasonable or logical connection to

Trove’s duress defense. The evidence was not relevant to the defense and was properly excluded.


Necessity

               Trove also contends that the trial court erred by refusing to admit evidence proffered

to support his affirmative defense of necessity. Necessity justifies conduct 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.


Tex. Penal Code Ann. § 9.22 (West 2003).

               First, to succeed on a defense of necessity, the contemplated harm must be imminent.

“Imminent” means that something is impending, not pending; something that is on the point of

happening, not about to happen. Schier, 60 S.W.3d at 343. Imminent harm contemplates an

emergency situation, requiring immediate action or a split-second decision without time to consider

the law. Id.

               Courts have found no imminent harm where there is no emergency situation and no

need for a split-second decision. In Stefanoff v. State, appellant, convicted of possessing marihuana,

claimed that it was necessary for him to possess and smoke marihuana to avoid sudden and severe

symptoms associated with post-traumatic stress disorder. 78 S.W.3d 496, 499 (Tex. App.—Austin

                                                  7
2002, pet. ref’d). The court found no imminent harm. In Schier and Smith v. State, the courts found

no imminent harm where appellants, convicted of interference with child custody, claimed that it was

necessary for them to remove their children from an abusive parent. 60 S.W.3d at 344; 949 S.W.2d

333, 336-37 (Tex. App.—Tyler 1996, pet. ref’d). In Anguish v. State, appellant, convicted of robbery

and theft of an automobile, claimed he stole the automobile and robbed the bank because of

another’s threat four days earlier to kill his family if he did not perform the act. 991 S.W.2d

883, 884-85 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). The court found no imminent harm.

Finally, in Washington v. State, appellant, convicted for unlawfully possessing a firearm, claimed

that the gun was his grandfather’s and that he had put it in his pocket so that the kids, who

were on their way home from school, would not see it or handle it. 152 S.W.3d 209, 211

(Tex. App.—Amarillo 2004, no pet.). The court found no imminent harm. Each of these decisions

shows that a general fear of harm, alone, is insufficient to invoke the necessity defense; rather, the

necessity defense requires imminent harm such that an immediate, non-deliberative action must be

made without hesitation or thought of the legal consequence. See Stefanoff, 78 S.W.3d at 501.

               Here, Trove sought to present evidence of general mistreatment by TDCJ officials

and by other inmates. For instance, Trove claims that one witness would testify to a past incident

in which Trove was confined to a room with no ventilation, causing him to suffer heat stroke and

to be hospitalized. Although such evidence may indicate past harm and even a present general fear

of harm, it fails to demonstrate an immediate need to act to prevent imminent harm. Trove also

sought to introduce evidence of his medical conditions and special needs. In particular, Trove claims

that the proffered evidence would show the existence of medical orders requiring his removal from



                                                  8
the vicinity before tear gas is used and the guards’ knowledge of, but disregard for, these medical

orders. Trove claims that another witness would testify that tear gas is consistently and frequently

used at the prison facility. While such evidence might tend to show that Trove generally fears being

harmed or mistreated, it is not evidence of an imminent threat or an immediate need to write

threatening letters to members of this Court to avoid harm.

               In addition to a showing of imminent harm, the necessity defense requires that a

reasonable person would believe the conduct to be immediately necessary. “Reasonable belief”

means a belief that would be held by an ordinary and prudent person in the same circumstances

as the actor. Tex. Penal Code Ann. § 1.07(a)(42) (West Supp. 2006). Determination of the

reasonableness of an accused’s belief is generally a question of fact, and should be viewed from the

accused’s standpoint at the time he acted. Fitzgerald v. State, 782 S.W.2d 876, 885 (Tex. Crim.

App. 1990); Brazelton v. State, 947 S.W.2d 644, 648 (Tex. App.—Fort Worth 1997, no pet.).

However, an accused’s belief that the conduct was immediately necessary may be deemed

unreasonable as a matter of law if the evidence shows a complete lack of immediate necessity or

imminent harm. Brazelton, 947 S.W.2d at 648-49. As discussed above, Trove has presented no

evidence of imminent harm. Therefore, if Trove believed that writing threatening letters to members

of this Court was immediately necessary to avoid imminent harm, this belief was unreasonable as

a matter of law. See id.

               We conclude that the proffered evidence had no reasonable or logical connection to

Trove’s necessity defense. There is no evidence of imminent harm or of a reasonable belief that




                                                 9
immediate action was necessary to avoid imminent harm. The proffered evidence was not relevant

to the defense and was properly excluded.


                       Failure to Instruct Jury on Affirmative Defenses

               Trove presented no evidence of either duress or necessity. When he testified, Trove

described mistreatment, “suffering,” and “torture;” however, his testimony was essentially the same

as the excluded evidence already described. For the reasons discussed above, we conclude that the

evidence presented by Trove’s testimony was no evidence of either duress or necessity requiring that

he write a letter threatening a judge. The evidence presented had no reasonable or logical connection

to either defense. Because Trove presented no evidence of either defense, the trial court properly

refused to instruct the jury to consider them.

               The points of error are overruled, and the judgment of conviction is affirmed.




                                                 __________________________________________

                                                 W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Affirmed

Filed: November 14, 2007

Do Not Publish




                                                   10
