      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-00-00747-CR



                               Jeffrey Walter Stefanoff, Appellant


                                                 v.


                                   The State of Texas, Appellee




      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
         NO. 97-0418, HONORABLE ROBERT T. PFEUFFER, JUDGE PRESIDING




               A jury convicted appellant Jeffrey Walter Stefanoff of possessing four ounces or more

but less than five pounds of marihuana. See Tex. Health & Safety Code Ann. § 481.121 (West Supp.

2002). The trial court sentenced him to one year’s confinement, probated for two years, and imposed

a $2,500 fine, $1,500 being probated. As a condition of appellant’s probation, the trial court ordered

him to enter the substance abuse felony punishment program and, prior to entry into such program,

required appellant to serve seven days in jail as a detoxification period. By six points of error,

appellant challenges his conviction and sentence. In one counterpoint, the State challenges the trial

court’s submission of appellant’s necessity defense to the jury. We affirm the trial court’s judgment

and sentence as modified.
                                     BACKGROUND FACTS

                While flying over appellant’s property in a helicopter during a “domestic marijuana

eradication” operation, police discovered appellant growing marihuana.            After obtaining and

executing a search warrant, police recovered fifteen marihuana plants belonging to appellant. A

search of his residence revealed no other drug paraphernalia or contraband. The marihuana

confiscated from appellant weighed 2.16 pounds.

                Appellant stipulated to committing the offense of possession of marijuana of four

ounces or more but less than five pounds. See Tex. Health & Safety Code Ann. § 481.121. Pursuant

to Penal Code section 9.22, appellant asserted the defense of necessity. See Tex. Pen. Code Ann. §

9.22 (West 1994). Appellant claimed that, as a result of his post-traumatic stress disorder, it was

necessary for him to possess and smoke marihuana to contain the adverse symptoms associated with

his disorder. The State objected to appellant’s use of the necessity defense. The trial court, however,

overruled the State’s objections and submitted the issue to the jury. The jury found appellant guilty.

At appellant’s election, the trial court assessed his punishment. Appellant appeals both his conviction

and sentence.


                                           DISCUSSION

                By his first point of error, appellant challenges the factual sufficiency of the State’s

evidence to overcome his necessity defense. The State responds by asserting one counterpoint of

error, contending that the trial court committed error by instructing the jury on appellant’s necessity




                                                   2
defense. Before we pass upon the factual sufficiency of the State’s evidence to rebut appellant’s

necessity defense, we first determine whether appellant was entitled to a jury instruction on necessity.

                A defendant is generally entitled to a jury instruction on every claimed defensive issue

so long as the evidence adduced at trial is sufficient to raise each element of the defense. See

Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999); Hamel v. State, 916 S.W.2d 491, 493

(Tex. Crim. App. 1996). In determining whether evidence raises a defense, neither the credibility,

source, or strength of the evidence is material. Hamel, 916 S.W.2d at 493 (stating that “an accused

has the right to an instruction on any defensive issue raised by the evidence, whether that evidence

is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may

not think about the credibility of the defense”); Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim.

App. 1993) (“The evidence which raises the issue may be either strong, weak, contradicted,

unimpeached, or unbelievable.”). If evidence is such that a rational juror could accept it as sufficient

to prove a defensive element, then it is said to “raise” that element. See 43 George E. Dix & Robert

O. Dawson, Texas Practice: Criminal Practice and Procedure § 36.47 (2d ed. 2001). The

defendant’s testimony by itself is sufficient to raise a defensive issue requiring an instruction in the

jury charge, particularly when the defendant makes a proper and timely request for such a charge.

Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987). It is only when the evidence fails to

raise every element of a defensive issue that a trial court may refuse to grant an instruction requested

by the defendant. See Muniz, 851 S.W.2d at 254. On appeal, evidence in support of the defensive

issue is reviewed in the light most favorable to the defense. Shafer v. State, 919 S.W.2d 885, 886

(Tex. App.—Fort Worth 1996, pet. ref’d).

                                                   3
               Necessity is a statutory defense that exonerates a person’s otherwise illegal conduct.

See Tex. Pen. Code Ann. § 9.22. Conduct is justified by necessity 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.


Id. The defendant has the initial burden of producing evidence regarding the necessity defense. Tex.

Pen. Code Ann. § 2.03(c) the defendant adduces evidence, regardless of source and strength, raising

every element of the defense, then the burden shifts to the State to disprove the defense beyond a

reasonable doubt. Id. § 2.03(d); Thomas v. State, 678 S.W.2d 82, 84 (Tex. Crim. App. 1984).

                The State contends that, because appellant failed to present any evidence regarding

his possession of marihuana on the day of the offense, appellant failed to meet his initial burden of

producing evidence to raise the “immediately necessary to avoid imminent harm” element. Tex. Pen.

Code Ann. § 9.22(1). Appellant argues that his testimony and that of his treating psychiatrist, Dr.

Joel Hochman,1 regarding appellant’s medical need to use marihuana to control rage, depression,




    1
      Dr. Hochman did not begin treating appellant until after the State indicted appellant for
marihuana possession on October 9, 1997.

                                                 4
anxiety, and nervousness associated with appellant’s post-traumatic stress disorder,2 satisfy the

imminent harm requirement of section 9.22.3

               Section 9.22(1) requires the defendant to first bring forth evidence of a specific

imminent harm. Tex. Pen. Code Ann. § 9.22(1); Johnson v. State, 650 S.W.2d 414, 416 (Tex. Crim.

App. 1983). “Harm” means anything reasonably regarded as loss, disadvantage, or injury, including

harm to another person in whose welfare the person affected is interested. Tex. Pen. Code Ann.

§ 1.07(a)(25). “Imminent” means something that is immediate, something that is going to happen

now. See Smith v. State, 874 S.W.2d 269, 272-73 (Tex. App.—Houston [14th Dist.] 1994, pet.

ref’d). Reading these definitions together, imminent harm contemplates a reaction to a circumstance




   2
       Dr. Hochman was the first person to diagnose appellant as suffering from post-traumatic
stress disorder. The record indicates that appellant developed post-traumatic stress disorder after he
authorized the termination of life support for his wife who was severely injured in a motorcycle
accident.
   3
       According to appellant,

       [t]he State was required to disprove beyond a reasonable doubt two prongs of the
       necessity justification:

       (1) that Stefanoff reasonably believed his conduct was immediately necessary to avoid
           imminent harm; and

       (2) that the desirability and urgency of avoiding the harm clearly outweigh, according
           to ordinary standards of reasonableness, the harm sought to be prevented by the
           marijuana laws.

This argument is without merit because (i) it erroneously creates a conjunctive burden on the State
to disprove each element of the necessity defense and (ii) it incorrectly presumes that appellant met
his initial burden of putting forth some evidence to support his defense.

                                                  5
that must be the result of a “split-second decision [made] without time to consider the law.” Id. at

273.

               Appellant asserts his evidence establishes “that [post-traumatic stress disorder] has

a variety of symptoms, some sudden and severe, so that possession of marijuana at all times could

be necessary to avoid them.” (Emphasis added.) But more than a generalized fear of harm is

required to raise the issue of imminent harm. Brazelton v. State, 947 S.W.2d 644, 648 (Tex.

App.—Fort Worth 1997, no pet.). The bulk of appellant’s evidence concerns testimony relating to

appellant’s diagnosis and treatment after he was charged with marihuana possession. The only

testimony concerning the events leading up to appellant’s indictment came from appellant. And while

we recognize that a defendant’s testimony alone may be sufficient to support a necessity defense, see

Hayes, 728 S.W.2d at 807, it must actually raise the defensive issue before an instruction is proper,

see Granger, 3 S.W.3d at 38. Appellant testified as follows regarding imminent harm: (i) he once

threw a cup of hot coffee on his college professor; (ii) he became angry at his son and feared hitting

him; and (iii) he had a general belief that it was necessary for him to smoke marihuana to control his

post-traumatic stress disorder symptoms, including suicidal thoughts, flashback, depression, rage, and

nightmares. We find, however, that none of this testimony produces evidence of any conduct that

would lead a reasonable person to believe a specific harm was imminent.

               Even if appellant properly raised the element of imminent harm, we find the State

refuted the immediate necessity element beyond a reasonable doubt. After adducing evidence of

imminent harm, a defendant must next establish facts indicating a reasonable belief that the criminal

conduct was reasonably necessary to avoid the imminent harm. Tex. Pen. Code Ann. § 9.22(1).

                                                  6
“Reasonable belief” means a belief that would be held by an ordinary and prudent person in the same

circumstances as the defendant.       Id. § 1.07(a)(45). Reasonableness is determined from the

defendant’s viewpoint at the time of the conduct. See Fitzgerald v. State, 782 S.W.2d 876, 885 (Tex.

Crim. App. 1990). According to the uncontested testimony, smoking marihuana was appellant’s

preferred coping mechanism. However, appellant himself testified that during a five-month period

when he did not smoke marihuana, the worst thing that happened was that he threw a hot cup of

coffee at someone who required no more than a band-aid to treat the injury. The imminent harm

component contemplates more than this; it necessitates an immediate, non-deliberative action made

without hesitation or thought of the legal consequence. See Smith, 874 S.W.2d at 272-73.

Appellant’s marihuana possession resulted from a considered decision to cultivate fifteen marihuana

plants. Appellant’s “medicinal” use of marihuana to manage his post-traumatic stress disorder

symptoms is not the type of imminent harm to which the necessity defense applies. Accordingly, the

district court erred by instructing the jury on the defense of necessity. Appellant’s first point of error

is overruled and the State’s counterpoint of error is sustained.

                Appellant’s second point of error challenges the trial judge’s ruling denying his

requested instruction that “[t]he jury shall have the right to determine the law and the facts under

direction of this Court.” Although jury nullification is a recognized part of our judicial system, there

is no constitutional requirement that a trial judge instruct the jury on nullification. Mouton v. State,

923 S.W.2d 219, 221-22 (Tex. App.—Houston [14th Dist.] 1996, no pet.). Texas law on jury

nullification instructions is limited and generally applies to the sentencing phase of capital punishment

cases. See Clay S. Conrad, Jury Nullification as a Defense Strategy, 2 Tex. Forum Civ. Lib & Civ.

                                                    7
R. 1, 19 (1995). In other contexts, federal courts faced with requests for jury nullification

instructions have consistently held there is no constitutional right to such an instruction. See, e.g.,

Crease v. McKune, 189 F.3d 1188, 1194 (10th Cir. 1999) (holding defendant not entitled to jury

nullification instruction where ex parte communication had occurred between the judge and a juror);

United States v. Funches, 135 F.3d 1405,1409 (11th Cir. 1998) (holding, in a case for wrongful

possession of a firearm, “[b]ecause the jury enjoys no right to nullify criminal laws, and the defendant

enjoys a right to neither a nullification instruction nor a nullification argument to the jury, the

potential for nullification is no basis for admitting otherwise irrelevant evidence”); United States v.

Powell, 955 F.2d 1206, 1213 (9th Cir. 1992) (rejecting defendant’s entitlement to jury nullification

instructions in case involving wilful failure to file income tax returns).

                Appellant cites the Texas Constitution for the proposition that a right to jury

nullification does exist. See Tex. Const. art. I, § 8. Specifically, he relies on the last clause of the last

sentence, stating, “And in all indictments for libels, the jury shall have the right to determine the law

and the facts, under the direction of the court, as in other cases.” Id. (emphasis added). We reject

appellant’s argument that this supports a constitutional right to a nullification instruction. Appellant

takes this statement out of context.4 Finding no plausible support for appellant’s contention, we


   4
       In its entirety, article I, section 8 reads:

       Every person shall be at liberty to speak, write or publish his opinions on any subject,
       being responsible for the abuse of that privilege; and no law shall ever be passed
       curtailing the liberty of speech or of the press. In prosecutions for the publication of
       papers, investigating the conduct of officers, or men in public capacity, or when the
       matter published is proper for public information, the truth thereof may be given in
       evidence. And in all indictments for libels, the jury shall have the right to determine the

                                                      8
agree with and follow the line of federal cases rejecting a defendant’s constitutional right to a jury

nullification instruction. We agree with our sister court that, “while jury nullification may exist as a

part of our justice system, it is not a legal standard and is not a constitutional right of the defendant.

The court’s duty is to instruct the jury on the law, and the trial court in the instant case complied with

that duty.” Mouton, 923 S.W.2d at 222. Point of error number two is overruled.

                By appellant’s third point of error, he argues that the trial court erred in admitting

evidence relating to the amount and value of the marihuana discovered and that the admission of such

evidence prejudiced his medical necessity defense. Appellant urges this Court to consider that,

because he stipulated to the amount of marihuana found, no further evidence concerning the quantity

of marihuana was necessary. We review the erroneous admission of evidence using an abuse of

discretion standard. See Wyatt v. State, 23 S.W.3d 18, 29 (Tex. Crim. App. 2000). If overwhelming

evidence dissipates the error so that it did not contribute to the verdict, the reviewing court should

consider the error harmless. See id.

                The State presented testimony comparing the quantity of marihuana appellant used

daily with the amount of marihuana his plants could produce. A narcotics officer also testified to the

monetary street value of the marihuana in appellant’s possession, concluding that the number of plants

found in appellant’s possession was inconsistent with personal use. Appellant objected to this

testimony, asserting that, absent distribution charges and the State’s failure to provide notice of




       law and the facts, under the direction of the court, as in other cases.

Tex. Const. art. I, § 8.

                                                    9
possible prior bad acts testimony, the testimony was inadmissible under rule 404(b). See Tex. R.

Evid. 404(b). The State responded that because appellant failed to request notice of the State’s intent

to use this evidence, he waived any rule 404(b) objection and that, in any event, its use of evidence

regarding the amount of marihuana found was proper to rebut appellant’s medical necessity defense.5

The trial court overruled appellant’s objections regarding the admissibility of this evidence. However,

the court sustained appellant’s objections to the State’s attempt to elicit testimony that appellant’s

arrest interrupted his commercial operation.

               A reviewing court must ascertain the probable effect admitting evidence has on the

jury’s verdict and should not overturn a criminal conviction if, after examining the record as whole,

the court “has fair assurance that the error did not influence the jury, or had but a slight effect.”

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Here, the State claims that

introducing evidence establishing the quantity of marihuana found on appellant’s property was proper

to rebut appellant’s position that he grew marihuana only for his own medicinal use. Viewed as

rebuttal evidence to appellant’s medical necessity defense, the evidence satisfies the requirements of

rule 404(b). See Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim. App. 1990) (holding

evidence is admissible to rebut defensive theory). Because the jury heard sufficient testimony to

convict appellant without the evidence appellant claims was erroneously admitted, we cannot say




   5
       Appellant argues in his brief that “[a] Rule 403 analysis of the objectionable evidence in the
case at bar favors the defendant.” However, because appellant cites no place in the record where he
objected to the evidence relying on rule 403, and we could find no such objection, he failed to
preserve this asserted error for appeal. See Tex. R. App. P. 33.1(a).

                                                  10
that such testimony had more than a slight, if any, influence on the jury’s findings or that such

evidence warrants reversal. Point of error three is overruled.

                In his fourth and fifth points of error, appellant challenges his probation conditions.

By point of error four, appellant argues that by ordering him into the substance abuse felony

punishment program, the trial court failed to consider appellant’s medical diagnosis and his

prescription use of marinol. We employ an abuse of discretion standard in examining conditions of

probation. Dellinger v. State, 872 S.W.2d 49, 51 (Tex. App.—Fort Worth 1994, pet. ref’d). The

trial court has broad discretion in setting probation conditions reasonably related to the treatment of

the accused and the protection of the public. Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a) (West

Supp. 2002) (“The judge may impose any reasonable condition that is designed to protect or restore

the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant.”);

Hernandez v. State, 556 S.W.2d 337, 342-43 (Tex. Crim. App. 1977). For a probation condition to

be invalid, the condition must: (1) have no relationship to the crime; (2) be related to conduct that

is not in itself criminal; and (3) forbid or require conduct that is not reasonably related to the future

criminality of the defendant or does not serve the statutory ends of probation. McArthur v. State, 1

S.W.3d 323, 332 (Tex. App.—Fort Worth 1999, pet. ref’d), cert denied, 531 U.S. 873 (2000);

Marcum v. State, 983 S.W.2d 762, 768 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d).

                During the sentencing phase, appellant objected to any inpatient treatment program

because, “[g]iven the fact that [appellant] has a prescription for THC, [it] seems . . . rather impossible

to be given THC and be on a drug treatment plan to get one off THC.” The trial court acknowledged

that it was a “knotty problem.” In fashioning “its own program,” the trial court ordered appellant

                                                   11
committed to the substance abuse program and further ordered “that he be allowed to take his duly-

prescribed medications, whether it includes Marinol, or whatever it might be.” From the record, it

is clear that the trial court considered appellant’s medical diagnosis and fashioned its order to account

for appellant’s prescription of marinol. The only order objectionable to appellant was that he “cease

and desist from the use of marijuana by smoking.” Under these circumstances, we cannot say the trial

court abused its discretion in sentencing appellant to the substance abuse program.

                In his fifth point of error, appellant contends that, because he was entitled to

mandatory probation under the statute by which he was indicted, the trial judge’s order incarcerating

him for seven days prior to beginning the substance abuse program was erroneous. Appellant’s

argument is without merit. Appellant’s actual sentence of one year confinement was probated for two

years. The requirement that he spend seven days in jail as a detoxification period was a condition of

probation and of the substance abuse program, not of the one year imprisonment. See 37 Tex.

Admin. Code § 159.1 (2001). We hold that the trial court did not abuse its discretion in setting

appellant’s probation conditions. We overrule points of error four and five.

                Finally, in his sixth point of error, appellant contends that the judgment incorrectly

reflected an affirmative deadly weapon finding. The record reflects an affirmative deadly weapon

finding but it shows no support for such a finding. At oral argument, the State conceded error on this

point. Therefore, we modify the judgment to reflect a negative deadly weapon finding and sustain

appellant’s sixth point of error.




                                                   12
                                         CONCLUSION

               We sustain the State’s counterpoint of error and appellant’s sixth point of error and

modify the judgment to remove the deadly weapon finding. Appellant’s points of error one through

five are overruled. The conviction is modified and, as modified, affirmed.




                                             __________________________________________

                                             Jan P. Patterson, Justice

Before Justices Kidd, Yeakel and Patterson

Modified and, as Modified, Affirmed

Filed: January 10, 2002

Publish




                                                13
