






Fred Russell Jr. v. State of Texas
















IN THE
TENTH COURT OF APPEALS
 

No. 10-99-073-CR

     FRED RUSSELL, JR.,
                                                                         Appellant
     v.

     THE STATE OF TEXAS,
                                                                         Appellee
 

From the 13th District Court
Navarro County, Texas
Trial Court # 26,879
                                                                                                                
                                                                                                         
DISSENTING OPINION
                                                                                                                

      I agree with the majority that the trial court’s instruction on the necessity defense constituted
error.  I disagree, however, with the analysis of the harm that flowed from this erroneous
instruction.  Because I believe that Russell suffered “some” harm as a result of the charge error,
I would reverse his conviction.
Harm from preserved charge error
      When a complaint about an error in the charge is properly preserved, reversal is required if
the error caused “some” harm to the accused.  Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon
Supp. 2000); Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000) (quoting Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)).  “In the context of Almanza, supra, and
Article 36.19, supra, the presence of any harm, regardless of degree, which results from preserved
charging error, is sufficient to require a reversal of the conviction.  Cases involving preserved
charging error will be affirmed only if no harm has occurred.”  Arline v. State, 721 S.W.2d 348,
351 (Tex. Crim. App. 1986).  When we are evaluating whether charge error caused harm to the
accused, we consider: (1) the entire jury charge; (2) the evidence produced at trial, the contested
issues, and the weight of the probative evidence; (3) the attorney’s arguments; and (4) any other
relevant information revealed by the record of the trial as a whole.  Ovalle, 13 S.W.3d at 786
(quoting Almanza, 686 S.W.2d at 171).  Furthermore:
We do not resolve the issue by asking whether the appellant met a burden of proof to
persuade us that he suffered some actual harm . . . .  No party should have a burden to
prove harm from an error, and there ordinarily is no way to prove “actual” harm . . . . 
[“]In evaluating what effect, if any, an error had on the jury’s verdict, the appellate court
may look only to the record before it.  The function of the party carrying the burden is
simply to suggest, in light of that record, how prejudice may or may not have occurred. 
At that point, the court makes its own assessment as to what degree of likelihood exists
as to that prejudicial or non-prejudicial impact, and then applies to that assessment the
likelihood-standard of the particular jurisdiction.” 

Ovalle, 13 S.W.3d at 787 (quoting Wayne R. Lafave & Jerold H. Israel, Criminal
Procedure 1165 (2d ed.1992)).
First factor: the jury charge itself
      The analysis starts with the jury charge itself.  The portion of the charge instructing the jury
on Russell’s necessity defense provided:
You are instructed that conduct of a person is justified if that person reasonably
believes the conduct is immediately necessary to avoid imminent harm, and 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.
 
The term “conduct” means an act or omission and its accompanying mental state.
 
A “reasonable belief” means a belief that would be held by an ordinary and prudent
person in the same circumstances as the actor.
 
A reasonable belief means a belief that would be held by an ordinary and prudent
man in the same circumstances as the defendant.
 
This defense of justification or necessity is not available if the risk of eminent harm
reasonably appreciated by the actor has ceased to exist at the time the alleged unlawful
conduct occurred.

      The court’s addition to the statutory definition of the necessity defense turns the jury’s
attention away from the defendant’s belief and to the existence or nonexistence of the risk of
imminent harm.  Rather than focusing on the “reasonable belief” of the defendant, as the statute
requires, the supplement focuses on a risk that was “reasonably appreciated,” a change in wording
that the jury surely noticed.  See Ovalle, 13 S.W.3d at 786.  This instruction advises the jury that
the actor’s belief cannot be reasonable unless there is an actual risk of imminent harm at the time
of the unlawful act or omission.  Under the last portion of the charge, the defendant’s actions
would never be justified, no matter how reasonable the defendant’s belief was, unless the evidence
showed that there was an actual risk of imminent harm at the time of the unlawful conduct.
Second factor: the contested issues and the evidence
      The only contested issue at trial was whether Russell was justified in leaving the scene of the
collision.  To raise the defense of necessity, the defendant must admit to the unlawful conduct. 
Allen v. State, 971 S.W.2d 715, 720 (Tex. App.—Houston [14th Dist.] 1998, no pet.); Pentycuff
v. State, 680 S.W.2d 527, 528-29 (Tex. App.—Waco 1984, pet. ref'd).  Russell did so here, but
claimed that he was excused from stopping because he was afraid that Tim Cavender would harm
him.  Russell claimed his fear was based on Cavender’s actions prior to the accident.  According
to Russell’s testimony at trial, Cavender had bumped Russell’s car, had been driving in such a way
as to create the impression that he was trying to run Russell off the road or force him to a
complete stop, had been waiving a pistol out of the window of his truck, and caused the collision
between their vehicles by “crowding” Russell’s vehicle.  A police officer found a fully loaded 9
millimeter semi-automatic handgun in the vicinity of Cavender’s pick-up, which was claimed by
Cavender’s family.  At the time that Russell left the scene of the accident, Cavender was actually
lying immobile in the middle of Highway 31.  Russell did not contest whether Cavender was, in
fact, injured and lying helpless  in the road, but testified that he believed Cavender was sitting
uninjured in his truck after the vehicles collided and he was afraid to stay to check on Cavender’s
condition.

Third factor: argument by counsel
      The court’s supplement to the necessity defense instruction was specifically addressed by both
sides in their closing arguments.  Russell’s attorney argued:
[W]e’re going to walk toward this concept of necessity.  And like I say when you get the
jury charge, the definition is outlined for you and everything, I’m not going to read it to
you and everything, but there is one paragraph, this last section says (reading) “This
defense of justification of necessity is not available if the risk of imminent harm
reasonably appreciated by the actor has ceased to exist at the time of the alleged unlawful
conduct.”  And the reason I’m putting that in there and everything is because I want you
to look at that because for you to deal with the defense of necessity, this charge first of
all literally places you in the person of being a reasonable person, a prudent man that
probably should be a prudent person, but it says prudent man, but that would include you
ladies too.  Okay.
 
You need to get in the mind set and think what would be reasonably prudent if you were
that individual, Fred Russell, at 3:00 a.m. on the morning of December 14th, 1997 on 31
going east.  No lights, pitch dark, and some vehicle first of all hits you from behind,
evidence supports that.  Some individual pulls up beside and reaches something out of the
window, a weapon.  And Officer Paul’s testimony that obviously this individual cuts you
off.  
. . . 
 
And then Officer Paul tells you clearly that the decedent cut him off.  So is his story
consistent? . . .  But place yourself in that position and go to this definition.  What do
you truly think was running through this man’s mind at 3:00 a.m. in the morning? 
Somebody’s bumping him in the rear, pulling up besides him and reaches something out,
and then runs him off the street.  What do you think? [Court’s time notice omitted]  Is
there anyone in here who’s superman?  Because that would be the only somebody that’s
a reasonable prudent individual that would not realize, was he justified?  Was he in fear
of imminent harm?  And where does it cease?  Well, let me tender this to you.  The
statement given by my client basically says that he saw something that was in the road
clumped over, didn’t know what it was.  That was the first part of the statement and he’s
probably right.  If you look at this photo, apparently Mr. Cavender was dressed in dark
clothes.  And there was no question that it was dark out there.
 
But you know, Mr. Roberson testified that he pulled up on the scene, that my client was
pulling off because there comes an issue of whether or not my client saw the individual
as he got hit by the car when he’s coming along.  Mr. Robinson’s saying when he came
up on the scene, the car came, was pulling off and he got out and he actually tried to flag
down the vehicle that ended up running over the decedent.  
 
I guess what I’m trying to put out to you and everything is that when did this harm cease
to be a harm to Fred Russell?  It probably ceased to be a harm when he probably got
maybe 20 miles down the road or got to his home, got in his door.
 
Now, you may have a problem with how he reacted once he got home. . . .  But we do
know this, that if there’s anyone in here of the belief that this defense of justification and
this man’s belief of imminent harm based on the facts that are supported by their
witnesses to the fact that he ran him off the road, supported by their officer to the fact
that a gun was found, supported by Mr. Ford to the fact that the car was rear-ended also. 
That in and of itself would leave you with the vision as to what would you do? . . .  
What would be your reaction if those events occurred to you?  Would you jump up and
run out of the car and say, how are you doing? 

In reply, the State argued:
 
And then we get to the second issue about the whole defense of necessity and that is this
last paragraph.  It says (reading) “The defense of justification and necessity is not
available if the risk of imminent harm reasonably appreciated by the actor has ceased to
exist at the time the alleged unlawful conduct occurred.”  Well, remember we know from
the defendant’s statement and from Officer Ivie’s testimony that he saw the man being
run over.  That he saw him laying in the roadway.  He knew he had been involved in a
horrible accident.  That car, Mr. Cavender’s truck as Kelly Paul told you as the
defendant came straight on would have taken up his whole view.  All he would have seen
come in front of him was a truck and he hit it going, I mean, almost broadside.  He’s got
to know that he was involved in a bad accident.  And that somebody could have been
hurt. And, in fact, he saw that somebody and he saw him laying in the road.  And he told
you about it, and he got up here on the stand and lied to you and said he didn’t and said
Ray Ivie was lying.  
 
So you know unless you believe, unless you believe that Officer Ivie got up there on that
stand and lied to you and told you that the defendant said that, that he really didn’t. 
Unless you believe Officer Ivie lied, then you have to believe that the risk of harm, if
there was any risk of harm, which I suggest to you that there was not.  If was there any
risk of harm that it had ceased to exist and the defendant knew that it had ceased to exist
at the time that he drove that old Oldsmobile on home to Powell, on home to Kerens or
wherever it is that he said he lived, and left that situation there and left that man laying
there bleeding and left that car in the middle of the road, that truck in the middle of the
road for just any other citizen in the darkness of the night to come upon and hit.  
 
      As I view these arguments, both sides interpreted the court’s instruction to mean that the
defense was not available if the risk had actually ended at the time that the unlawful conduct
occurred.  The focus of the arguments, especially the State’s, was on the actual existence of the
threat, not on Russell’s belief concerning the threat.
Assessment of harm
      Part of the jury’s duty in the trial is to decide the credibility of the evidence and whether any
defensive theory raised by the evidence has merit.  Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim.
App. 1999).  “The jury charge must allow the jury to determine the defendant’s guilt in light of
the evidence and the law.”  Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996).  In this
case, the focus of Russell’s defense was the reasonableness of his belief that he was in danger if
he stayed at the scene to assist Cavender.  The reasonableness of his belief should have been left
as a fact question for the jury to decide.  See Granger, 3 S.W.3d at 39; Contreras v. State, 998
S.W.2d 656, 664 (Tex. App.—Amarillo 1999, pet. granted).
      In my view, the trial court instructed the jury that Russell’s belief could not be reasonable if
the facts were such that Cavender could not have inflicted the harm Russell feared.  Thus, the
instruction had the effect of instructing the jury to reject Russell’s necessity defense in light of the
fact that Cavender was lying helpless in the middle of the road rather than uninjured in his truck
as Russell claimed he thought.  Essentially, “[b]y failing to give [an] appropriate instruction, the
trial court denied the jury the opportunity to decide this issue.”  Granger, 3 S.W.3d at 39; see also
Hutch, 922 S.W.2d at 170.  Because the only contested issue at trial was whether Russell was
justified in leaving the scene, under this record and this instruction, the conviction was a foregone
conclusion, and I would find that Russell suffered some harm from the erroneous instruction. 
Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992); Darty v. State, 994 S.W.2d 215,
220 (Tex. App.—San Antonio 1999, pet. ref’d).
      Finding some harm to Russell from error in the jury charge, I would reverse his conviction
and remand this cause for a new trial.  Because the majority does not, I respectfully dissent.
 
                                                                                 BILL VANCE
                                                                                 Justice

Dissenting opinion delivered and filed March 7, 2001
Publish
