FFIRM and    Opinion   Filed February 25. 2013.




                                        In The
                                  Qtnirt øf Anat
                          2Fift1 itrirt øf ixa at Jattas
                                         No. 05-12-00131-CR

                        CHARLES SCOTT PRUIETT, Appellant
                                                  V.
                            THE STATE OF TEXAS, Appellee

                                On Appeal from the County Court
                                     Rockwall County, Texas
                                Trial Court Cause No. CR1O-0345

                                 MEMORANDUM OPINION
                            Before Justices Bridges, ONeill and Murphy
                                     Opinion by Justice O’Neill
       A jury convicted appellant Charles Scott Pruiett of family violence assault causing bodily

injury, and the trial court sentenced him to ninety days in jail, probated for eighteen months and

a $1,000 fine.   On appeal, he argues (1) the evidence is legally insufficient to support his

conviction because based on a hypothetically      correct jury charge   containing an instruction on

self-defense, no rational juror could have found the essential elements of the crime beyond a

reasonable doubt; (2) the evidence is legally insufficient to support his conviction because the

record shows he established necessity; and (3) the trial court erred by refusing a self-defense

instruction. We affirm the trial court’s judgment.

                                             Background

       Appellant and Misty Craighead, appellant’s wife at the time of the incident, had a history

of arguing over financial issues. On November 25, 2009, Misty went to the store to purchase
 tood for the family’s Thanksgiving meal and spent $250. When she returned home and appellant

 saw the grocery bill, he exploded in anger. He then took her credit and debit cards and shredded

 them,

          After shredding the cards, appellant went to the master bedroom and started gathering

 some clothes.      Misty followed and they continued to argue.                Their threeyearold daughter,

 Emma, was also in the room. Appellant picked up Emma and when he tried to leave the room

 with her, Misty blocked the door. She testified she repeatedly told appellant to put Emma down

 because things were getting out of control. Appellant pushed Misty aside and went outside.

          Appellant tried to leave in the couple’s Durango parked in the garage, but Misty blocked

 the passenger side door where Emma’s car seat was located. Appellant then went to the front of

 the house where his Jetta was parked. He put Emma in the front passenger side of the Jetta and

 then he got in the driver’s seat. Misty, fearful of appellant driving off with Emma unrestrained

 in the front seat, climbed in the back seat. Appellant then started driving.

          As appellant drove, Misty admitted she reached forward with her right hand to pull

 Emma back and then with her left arm, she tried to “pull the brake or pull something to get the

 car stopped.” Appellant grabbed her hand and bent it back as hard as he could to get her to stop.

 Misty tried a second time to pull Emma back, and appellant grabbed her wrist again. Appellant

 let go of her and finally drove back to their home and let Misty and Emma out.’

          Relatives at the home had already called police and informed Misty the police were on

 their way.     Despite knowing the police were coming, appellant left.                 Misty told officers her

 version of events and denied needing any medical treatment. Appellant talked with police the

 following day. He was charged with a class A misdemeanor offense of assaultlfamily violence.




Misty testified appellant reached speeds of forty miles-per-hour and drove for some time; however, appellant claimed
he never got above fifteen miles-per-hour and only drove past a few houses on their street.

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        Misty and appellant both testified at trial. Misty explained she was only trying to protect

her daughter and diffuse a volatile situation, while appellant argued he had every right to take his

daughter. He testitjed he grabbed Misty’s wrist because he was not sure what she was going to

do. but he was afraid she was going to cause a wreck or attack him. He also claimed he was

trying to diffuse the situation.

        Despite the   jury   being instructed on necessity. it found appellant guilty.    This appeal

followed.

                                       Self-Defense Instruction

        In his third issue, appellant argues the trial court erred by failing to include a self-defense

instruction.     The State responds the issue is not reserved for review, and even if it was

preserved, there was no error in failing to include a self-defense instruction because the evidence

did not SUppOrt it.


        Appellant admits he did not object during trial to the omission of a self-defense

instruction. He asserts he preserved error in his motion for new trial. Appellant’s argument is

without merit.

        The purpose of the jury charge is to inform the jury of the applicable law and guide the

jurors in applying the law to the facts of the case. Hutch v. State, 922 S.W.2d 166, 170 (Tex.

Crim. App. 1996) (en bane).        A judge’s duty to properly charge the jury exists even when

defense counsel fails to object to inclusions or exclusions in the charge, and thus, the judge may

be required to sua sponte instruct the jury on the law applicable to the case. Taylor v. State, 332

S.W.3d 483, 486 (Tex. Crim. App. 2011). However, a trial court has no duty to sua sponte

instruct the jury on a defensive issue, even if raised by the evidence. Posey v. State, 966 S.W.2d

57, 62 (Tex. Crim. App. 1998) (en bane). Where the trial court is not requested to include a

defensive issue in the court’s charge to the jury and omits the instruction, the defendant cannot


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complain for the first time on appeal. Id.; see    (lisa   Jaynes v. State, 216 S.W.2d 839, 853 (Tex,

App. —Corpus Christi 2006, no pet.) (holding defendant waived issue of whether trial court

should have instructed jury on mutual combat defense when he failed to object or request an

instruction at trial).

        The language ol articles 3f. 14 and 36.19 further supports this conclusion. Article 36,14

provides that “before the charge is read to the jury,” the defendant or his counsel shall have a

reasonable time to examine the charge and present his objections in writing or in the presence of

the court reporter. TEX. CoDE CRIM. PROC. ANN. art. 36.14 (West 2007). Article 36.19 states,

“All objections to the charge and to the refusal of special charges shall be made at the time of the

trial.” TEx. CoDE CRIM. PROC. ANN, art. 36.19 (West 2006), Accordingly, appellant’s objection

raised in his motion for new trial was untimely and insufficient to preserve his issue for review.

Because appellant waived his defensive issue, there is no error to which an Airnanza harm

analysis would apply. Posey, 966 S.W.2d at 61 (stating Alrnanza does not apply unless the

appellate court first finds error in the jury charge). Appellant’s third issue is overruled.

        Having resolved appellant’s third issue against him, we need not address his first issue in

which he complains the evidence is legally insufficient, under a hypothetically correct jury

charge including a self-defense instruction, to support his conviction. Appellant waived his self-

defense claim; therefore, the “hypothetically correct jury charge” analysis is inapplicable under

these facts because there was no charge error. Appellant’s first issue is overruled.

                                              Necessity

        In his second issue, appellant asserts the evidence is legally insufficient under the charge

as given to support his conviction. The State responds the evidence is legally sufficient because

appellant cannot avail himself of the necessity defense when he provoked the difficulty.




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Moreover, the State contends appellant has fiuiled      10   show his actions were immediately and

reasonably necessary to avoid imminent harm.

        In reviewing the sufficiency of the evidence, the court considers all the evidence in the

light most favorable to the verdict am! determines whether a rational trier of tact could have

found the essential elements of the crime beyond a reasonable doubt, Jackson v. Virginia, 443

U.S. 307, 319 (1979); Brooks     ‘.   State, 323 S.W.3d 893. 895 (Tex. (‘rim. App. 2010). The trier

of fact is the sole judge of the weight and credibility given to the witness testimony. cain v.

State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

        Section 9.02 of the penal code provides that it is a defense to prosecution that the conduct

in question is justified. TEX. PENAL CODE ANN.         § 9.02 (West 2011). To raise necessity, a
defendant must admit he committed the offense and then offer necessity as a justification. Young

v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999). The penal code authorizes necessity as a

justification defense to a criminal charge 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 the ordinary standards of reasonableness,
               the harm sought to he 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(1)—(3) (West 2011).
       “Imminent” means something that is impending; something that is on the point of

happening and not about to happen. Pennington v. State, 54 S.W.3d 852, 857 (Tex. App.—Fort

Worth 2001, pet. ref’d).    Harm is imminent when there is an emergency situation and it is

immediately necessary to avoid that harm. Id.
        “Reasonable beliet’ means a belief that would he held by an ordinary and prudent man in

the same circumstances as the actor.      TEX.    P1NAI. CODE ANN.    § 1 .07(a)(42) (West 2012).

Generally, determination of the reasonableness of the accused’s belief is a question of fact and

should he viewed from the accused’s standpoint at the time he acted. Pe,zninton, 54 S.W .3d at

857.    However, the 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.         Washington   v. State, 152 S.W.3d 209, 212 (Tex.

App.—Amarillo 2004, no pet.).

        In order to sustain a necessity defense, the jury would have to believe appellant was

reasonably placed in fear of imminent harm by Misty reaching her arm forward from the

backseat. Evidence of a generalized fear of harm is not sufficient to raise the issue of imminent

harm.    Brazelton i’.   State, 947 S.W.2d 644, 648 (Tex. App.—Fort Worth 1997, no writ).

Appellant testified when Misty first reached her arm forward from the back seat, “I [had] no idea

what she’s doing at that point.” He did not recall her saying anything such as Tm going to find

a way to stop this vehicle.” When asked about his concern when her hand reached forward, he

said “Whether she was going to cause a wreck or attack me. I really had no idea what she was

going to do.” [Emphasis added.1 By his own testimony, appellant admitted he did not know

Misty’s intentions when she reached forward, and his generalized fear of injury was insufficient

to support a conclusion he believed his actions were necessary to avoid imminent harm.

        While appellant focuses on the testimony of Misty, who testified she was reaching

forward to grab something to stop the car, his focus is misplaced.        A determination of the

reasonableness of appellant’s belief of imminent harm is viewed from his standpoint at the time

he acted. Pennington, 54 S.W.3d at 857 (emphasis added). He testified that from his standpoint

at the time he acted, he did not know what she was going to do.


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        Moreover, as a matter of law, when criminal conduct is no longer necessary to avoid

imminent harm, the necessity defense evaporates. Bush r. Slate. 624 S.W.2d 377, 378 (‘fex.

App—Dallas 1981, no writ); see also Gibson          i’.   State,   874 S.W.2d 164, 165 (Tex. App.—

Houston [14th Dist.1 1994, no writ). The jury heard that Misty reached forward towards the

front of the car twice. Even if the jury believed appellant grabbed her wrist and twisted it the

first time out of necessity, the jury could reasonably infer appellant no longer believed he was in

imminent danger because he did not immediately pull over and stop the car.               Rather, he

continued to drive, indicating he did not really believe Misty was going to hurt him or wreck the

car.   Accordingly, viewed in the light most favorable to the verdict, the evidence is legally

sufficient to support the jury’s rejection of the necessity defense and to support his conviction for

family violence assault causing bodily injury. Appellant’s second issue is overruled.

                                            Conclusion

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




                                                   ,11HAEL J. cYNEII)
                                                   £JUSTICE      I
DO NOT PUBLISH
TEX. R. App. P. 47

12013 IF.U05
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                                          JUDGMENT

CHARLES SCOTT PRULETT. Appellant                       On Appeal from the County Court, Rockwall
                                                       County, Texas
No, O5-l2-OO131CR            V.                        Trial Court Cause No, CR1OO345.
                                                       Opinion delivered by Justice O’Neill,
THE STATE OF TEXAS. Appellee                           Justices Bridges and Murphy participating.

       Based on the Court’s opinion of this date, the judgment of the trial   court is   AFFIR11ED.

                        th
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Judgment entered this        day of February, 2013.
