Affirmed and Memorandum Opinion filed December 16, 2014.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00350-CR

                      JASON RAY BOUCHARD, Appellant
                                          V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 178th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1374815

                  MEMORANDUM                       OPINION


      Jason Bouchard appeals his conviction for the capital murder of Terri
Sanvicente. In two issues, which we consolidate into one, appellant challenges the
trial court’s denial of his requests for jury instructions on the defenses of necessity
and on defense of a third person. We hold that the trial court did not err in failing
to instruct the jury on those defensive issues because appellant did not meet his
burden to establish that he was entitled to the instructions. We therefore affirm the
trial court’s judgment.

                                   BACKGROUND

      Appellant and the victim, Terri Sanvicente, had been married. The couple
had three children together.     The relationship ended in 2007, and during the
subsequent custody dispute, their daughter alleged that appellant had sexually
abused her.

      At trial, appellant testified that he killed Sanvicente because she was the
reason their daughter alleged she had been abused. Appellant felt that Sanvicente
forced their daughter to make those accusations. Additionally, appellant stated that
he was about 90 to 95% certain that Sanvicente had abused their daughter. He also
alleged it was possible that Sanvicente allowed someone else to do it. Appellant
conceded, however, that he did not believe Sanvicente was molesting their
daughter at the time he committed the offense. He testified as follows: “I felt that
Terri Sanvicente was a constant threat. Did I believe she was molesting her right
then and there on the spot when I went there? No.”

      Appellant visited both Target and Walmart to select a murder weapon.
Appellant decided to purchase a crowbar and a gas can. He traveled toward
Sanvicente’s home, poured gas on a window in the back of the house, and lit a fire.
Appellant then ran to the front of the house, beat on the front door, rang the
doorbell three times, and said “Fire, fire, get out, get out.” Appellant testified that
he then used the crowbar to break the windows of his children’s room and alerted
them of the fire. Sanvicente came to the front door and opened it. Appellant
testified that he struck Sanvicente with the crowbar between fifteen and twenty
times, including three two-handed blows to the head as she attempted to crawl
away, before relenting because he was fairly certain she was dead.
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      During the charge conference, appellant objected to the court’s proposed
charge and requested an instruction on defense of a third person and an instruction
on the defense of necessity. The court denied both requests on the grounds that
there was no evidence presented to the jury that any threat was imminent.
Appellant was convicted of capital murder and sentenced to life imprisonment
without parole. This appeal followed.

                                      ANALYSIS

I.    The trial court correctly denied appellant’s requests for jury
      instructions on the defenses of necessity and defense of a third person.
      Appellant contends that the trial court erred in denying his request for the
inclusion of a necessity defense instruction and his request for an instruction on
defense of a third person in the jury charge. We hold that the evidence presented
by appellant did not entitle him to the inclusion of either instruction.

      A.     Standard of review

      When reviewing claims of jury charge error, we use a two-step process.
First, we determine whether error actually exists in the charge. Ngo v. State, 175
S.W.3d 738, 743 (Tex. Crim. App. 2005). Then, if error exists, we determine
whether it was harmful using the framework outlined in Almanza v. State, 686
S.W.2d 157 (Tex. Crim. App. 1984). See Barrios v. State, 283 S.W.3d 348, 350
(Tex. Crim. App. 2009).

      We review for abuse of discretion a trial court’s decision not to include a
defensive issue in the jury charge. Wesbrook v. State, 29 S.W.3d 103, 122 (Tex.
Crim. App. 2000). An accused is entitled to an instruction on every defensive
issue raised by the evidence. Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim.
App. 1987). This is true regardless of whether such evidence is strong or weak,
unimpeached or contradicted, and regardless of what the trial court may think
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about the credibility of this evidence. Hamel v. State, 916 S.W.2d 491, 493 (Tex.
Crim. App. 1996). Indeed, the court must view the evidence in the light most
favorable to the defendant’s requested submission. Bufkin v. State, 207 S.W.3d
779, 782 (Tex. Crim. App. 2006). A defendant’s testimony alone is sufficient to
raise a defensive issue requiring an instruction in the jury charge. Hayes, 728
S.W.2d at 807.

      B.    Necessity

      Section 9.02 of the Texas Penal Code provides that it is a defense to
prosecution if the conduct in question is justified under this chapter. Tex. Penal
Code Ann. § 9.02 (West 2011).        Under the defense of necessity, conduct is
justified if (1) the actor reasonably believed the conduct was immediately
necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the
harm clearly outweighed, 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 § 9.22 (West 2011). A “reasonable
belief” is one 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) (West 2011).

      “‘Imminent’ means something that is impending, not pending; something
that is on the point of happening, not about to happen.” Schier v. State, 60 S.W.3d
340, 343 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). “An ‘imminent
harm’ occurs when there is an emergency situation and it is ‘immediately
necessary’ to avoid that harm, when a split-second decision is required without
time to consider the law.” Id. A defendant’s belief that conduct was immediately
necessary to avoid imminent harm may be deemed unreasonable as a matter of law
if undisputed facts demonstrate a complete absence of evidence of immediate

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necessity or imminent harm. Arnwine v. State, 20 S.W.3d 155, 159 (Tex. App.—
Texarkana 2000, no pet).

      C.     Defense of third person

      In defending a third person, the use of deadly force against another is
justified if the actor would be justified in using deadly force to protect himself
against the unlawful deadly force he reasonably believes to be threatening the third
person; and the actor reasonably believes that his intervention is immediately
necessary to protect the third person. Tex. Penal Code Ann. § 9.33 (West 2011);
see also id. §§ 9.31, 9.32.

       D.     Because there is no evidence of a reasonable belief that action
              was immediately necessary, appellant was not entitled to either
              instruction.
      Given the overlap between the two defenses raised by appellant, we address
them together. Both defenses share the common elements of “reasonable belief”
and “immediate necessity.” In this case, there is no evidence in the record that
appellant’s conduct was immediately necessary to avoid imminent harm.
Moreover, as detailed above, appellant’s testimony reveals that he did not believe
his daughter was being sexually abused at the time he committed the offense.
Accordingly, appellant was not entitled to either defensive instruction. Because we
hold that there was no evidence to suggest that appellant reasonably believed his
conduct was immediately necessary, we need not address the other elements of the
defenses. We overrule appellant’s two issues.




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                                  CONCLUSION

      Having overruled appellant’s issues, we affirm the trial court’s judgment.



                                      /s/       J. Brett Busby
                                                Justice


Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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