      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00566-CR



                                   Thomas Redden, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
      NO. D-1-DC-05-205224, HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Thomas Redden appeals his conviction for the offense of impersonating

a public servant. See Tex. Penal Code Ann. § 37.11 (West 2003). Appellant raises five points of

error on appeal. Appellant contends that the trial court erred by denying his motion for directed

verdict, allowing the state to introduce extraneous offense evidence during the State’s case-in-chief,

and failing to include a “necessity” instruction in the jury charge. Alternatively, appellant contends

that his counsel was ineffective by failing to object to the extraneous offense evidence and by not

requesting a jury instruction on “necessity.” For the reasons that follow, we overrule appellant’s

points of error and affirm the judgment of the trial court.


                      FACTUAL AND PROCEDURAL BACKGROUND

               On the evening of October 9, 2005, Richard Trautman, appellant’s roommate at the

time, drove appellant to downtown Austin, dropped appellant off, and waited in his car for appellant.
After getting out of Trautman’s car, appellant made contact with Roberto Wells, an individual who

frequented the downtown area. What transpired between appellant and Wells is disputed but, after

appellant returned to Trautman’s car, he was arrested for impersonating a police officer and for theft.

Two police officers, Joseph Harris and Lonnie Gall, witnessed appellant holding Wells in a classic

“arrest” pose—against a car with Wells’s legs and arms spread and hands flat on the car, overheard

appellant tell Wells that he was an undercover narcotics officer and that Wells was under arrest, and

saw appellant searching Wells’s pockets. Officer Gall saw appellant pull out a “hand full of cash”

from one of Wells’s pockets.

               At a jury trial, the jury heard different versions of the events of that day. The State

called three witnesses—Officer Gall, Officer Harris, and Trautman. Officer Gall observed appellant

and Wells “in a huddle” before appellant “grabbed Mr. Wells and slammed him against the hood of

the car.” Both officers testified that they were on bike patrol when they observed appellant holding

Wells against the car telling Wells that he was a narcotics officer and that Wells was under arrest.

The officers confronted appellant, and he repeated to them that he was a narcotics officer and asked

for Officer Gall’s hinge cuffs. Appellant then ran to Trautman’s car, telling Trautman to “go, go,

go.” After appellant returned to Trautman’s car, Officer Gall detained Trautman and appellant at

gunpoint, conducted a search, and recovered four dollars in cash, which he gave to Wells. Trautman

testified that he did not go downtown to purchase drugs but to give appellant a ride and that he was

waiting in the car for appellant when appellant ran to the car saying “throw me my handcuffs.”

               Appellant testified in his own defense. Appellant contended that he and Trautman

went downtown to purchase marihuana and that was why he made contact with Wells. He testified



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that Wells left briefly and, when Wells returned and asked for appellant’s money, Wells grabbed

appellant’s money and that they started struggling. Appellant testified, “I got scared at that point,

and that’s when I told him I was a—an undercover officer just so I could get away.” Appellant stated

that he did not know the police officers were there and did not have any contact or communications

with the officers until after he “ran and jumped in [Trautman’s] car.” He denied telling the police

officers directly that he was an officer or asking for handcuffs.

               The jury found appellant guilty of impersonating a public servant but not guilty of

theft. The court sentenced appellant to three years in the Texas Department of Criminal Justice

Institutional Division. This appeal followed.


                                             ANALYSIS

Denial of Motion for Directed Verdict

               In his first point of error, appellant contends that the trial court erred in denying his

motion for directed verdict because the State did not offer evidence during its case-in-chief that

appellant was not a police officer to satisfy the “pretense” element of the offense. A person commits

the offense of impersonating a public servant if he “impersonates a public servant with intent to

induce another to submit to his pretended official authority or to rely on his pretended official acts.”

Tex. Penal Code Ann. § 37.11(a)(1). Appellant contends that because the State failed to offer proof

that he was not a police officer, the trial court erred in denying his motion for directed verdict.

               A challenge to the trial court’s denial of a directed verdict is “in actuality a challenge

to the sufficiency of the evidence to support the conviction.” Cook v. State, 858 S.W.2d 467, 470

(Tex. Crim. App. 1993) (quoting Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990)).

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In reviewing the sufficiency of the evidence, an appellate court considers all the evidence, both

the State’s and the defense’s, in the light most favorable to the verdict. Id. If the evidence is

sufficient to sustain the conviction, the trial judge did not err in overruling a motion for directed

verdict. See id.

                The evidence at trial that appellant was not a police officer included the testimony

from the officers that they did not recognize appellant as a police officer and that his conduct did not

comport with standard undercover procedures. Officer Harris testified, “we’re familiar with all

officers that work in the downtown area” and that they would have been informed ahead of time of

“any type of undercover operations, plain clothes operation, undercover narcotics purchases” for

interference and safety reasons. Officer Gall testified that he was familiar with most officers that

work in the downtown area and that appellant’s conduct made him suspicious and did not comport

with standard procedures:


        Q.      Okay. And was there anything else about what he was doing that made you
                suspicious that he was not a police officer?

        A.      The way the undercover officers work you’ll have an undercover officer and
                there’s an officer who is also [an] undercover officer, who is called a close
                cover. . . . And it’s almost never happens that the actual person who’s
                buying, the officer who’s actually buying the crack, is making the arrest. . . .

        Q.      So there was no close cover officer approaching the scene.

        A.      No, ma’am.

        Q.      And it would be out of standard procedure for someone who is just
                participating in the deal to make an arrest—

        A.      Yes, ma’am.



                                                   4
Appellant also testified that he was not a police officer, “I mean, I could tell they were mad that I

wasn’t an officer.” We conclude the evidence was sufficient to support that appellant was not a

police officer and to satisfy the “pretense” element. We overrule appellant’s first point of error.


Admission of Extraneous Evidence

               In appellant’s second point of error, appellant complains that the trial court should

not have admitted Trautman’s testimony during the State’s case-in-chief that appellant and his

brother had “jacked” people around in the past. Alternatively, in his third point of error, appellant

contends that his counsel was ineffective because he did not object to this testimony. He urges

that the evidence was inadmissible as extraneous offense evidence used as character evidence. See

Tex. R. Evid. 404(b); Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).1

               The issue arose at trial when defense counsel asked Trautman during cross-

examination, “Did [appellant] make any reference to planning to jack somebody for their money or

anything like that?” Prior to redirect testimony, the State asked for a bench conference and, in the

conference, argued to the trial court that defense counsel’s question opened the door for the State to

ask Trautman about statements appellant had made to Trautman that appellant had “jacked” people

around in the past. The court asked defense counsel, “Then [the State] can inquire into [the

question] upon redirect?” Defense counsel responded, “I suppose.” The State during redirect then

asked Trautman the following questions without objection:



       1
          Appellant also contends the testimony was inadmissible because it was hearsay, irrelevant,
uncorroborated accomplice testimony, and its probative value was substantially outweighed by
its prejudicial effect. See Tex. R. Evid. 402, 403, 802; Tex. Code Crim Proc. Ann. art. 38.14
(West 2005).

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       Q.      On cross-examination, defense counsel asked you if that night the defendant
               had mentioned jacking anybody, and you said no.

       A.      That is correct.

       Q.      Okay. He didn’t mention anything about it that night.

       A.      That is correct.

       Q.      During your tenure of living with him, he’d ever—had he ever said anything
               about jacking people before?

       A.      Well, when I first moved in there, his brother was moving out as I was
               moving in, and you know, everyone was sitting down, having a few beers or
               whatever. Doing what guys do, talk and stuff about how they used to play
               cop, you know, and be, I guess jack people up or what have you, you know.
               And how long ago that was I don’t know. It could have been drinking so
               [sic].


Because appellant did not object and obtain a ruling, he failed to preserve error on appeal. See

Tex. R. App. P. 33.1(a). We overrule appellant’s second point of error and turn to his alternative

claim that his counsel was ineffective by failing to object to the questions.

               The standard for testing claims of ineffective assistance of counsel is set out in

Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To prevail on a claim of ineffective

assistance, an appellant must, by a preponderance of the evidence, prove that (i) trial counsel’s

performance fell below an objective standard of reasonableness, and (ii) counsel’s deficient

performance prejudiced appellant’s defense. Strickland, 466 U.S. at 687-88; Bone v. State,

77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To show prejudice, an appellant must show “a

reasonable probability that, but for his counsel’s unprofessional errors, the results of the proceeding



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would have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 687.

               We conclude that even if counsel’s conduct was deficient in failing to object to

the questions on “jacking” people, appellant has failed to show that the isolated testimony

from Trautman prejudiced appellant’s defense.2 Appellant has failed to show that but for the

admission of this testimony, the results of the proceeding would have been different. On recross

examination, Trautman stated that he did not know if appellant actually had ever committed such

an act and that he did not have any reason to believe that appellant intended to “jack” someone the

night of the incident:


       Q.      So as far as you know when—when [appellant] said something to you about
               jacking people, he was talking about something he’d done when he was a kid,
               years ago; correct?

       A.      Like I said, I have no idea when it was. He and his brother were just talking
               old memories, so I assumed it was in the past.

       Q.      You don’t have any reason to think at all that that’s what he intended to do
               when he went [downtown] that night.

       A.      No. . . .

       Q.      As far as you know he never actually did anything like this, just sort of
               drinking and bragging with his brother?

       A.      Yes, as far as I know. Yes.



       2
            Appellant cites Brown v. State, 974 S.W.2d 289 (Tex. App.—San Antonio 1998,
pet. ref’d), to support that his counsel was ineffective for allowing the admission of extraneous
offense evidence. The court in Brown stated that defense counsel is ineffective “when counsel fails
to object to numerous extraneous and prejudicial matters.” Id. at 293 (emphasis added). Appellant
in contrast complains of one series of questions.

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Appellant also denied making the statement to Trautman, and the jury found appellant not guilty of

theft. We overrule appellant’s third point of error.


Failure to Include “Necessity” Instruction

                 In his fourth point of error, appellant contends that the trial court erred in not

including an instruction in the charge on the defense of necessity.3 Alternatively, appellant contends

that his counsel was ineffective because his counsel did not request an instruction on the defense of

necessity. According to appellant, Wells was attempting to steal appellant’s money, a struggle

ensued and, when appellant became afraid for his life, he told Wells that he was an officer.

Appellant urges that by “his pretense,” his conduct was justified—he “used less physical force than

he was entitled to use, and a potentially deadly situation was avoided.” He argues that he could

have arrested Wells or used the threat of deadly force—“taking out a gun and pointing it at the

thief”—to recover the four dollars that Wells took from him. See Tex. Code Crim. Proc. Ann. art.

18.16 (West 2005); Tex. Penal Code Ann. §§ 9.04, .42 (West 2003).


       3
           Section 9.22 of the penal code sets out the elements for the defense of necessity:

       Conduct is justified 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).

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               A trial court is required to submit a jury charge that sets out the law “applicable to

the case.” Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007). A trial court, however, does not have

a duty to sua sponte instruct the jury on defensive issues. See Posey v. State, 966 S.W.2d 57,

62 (Tex. Crim. App. 1998) (article 36.14 does not impose a “duty on trial courts to sua sponte

instruct the jury on unrequested defensive issues”); see also Delgado v. State, 235 S.W.3d 244, 249-

50 (Tex. Crim. App. 2007) (court draws distinction between absolute duty to set out law applicable

to specific offense charged and defensive issues); Young v. State, 991 S.W.2d 835, 838 (Tex. Crim.

App. 1999) (necessity is defensive issue). Because appellant did not request an instruction on

necessity, the trial court did not have a duty to include one in the charge. See Posey, 966 S.W.2d at

62. We overrule appellant’s fourth point of error and turn to his alternative claim that his counsel

was ineffective because he did not request an instruction on necessity.

               Appellant contends that his counsel should have requested an instruction on the

defense of necessity because appellant admitted to uttering the “fictitious phrase.” A necessity

instruction is appropriate when the defendant’s defensive evidence essentially admits to every

element of the offense, but “interposes the justification to excuse otherwise criminal conduct.” Shaw

v. State, No. PD-0211-06, 2007 Tex. Crim. App. LEXIS 1479, at *30 (Tex. Crim. App. Oct. 31,

2007); see also Young, 991 S.W.2d at 838; Aldrich v. State, 53 S.W.3d 460, 468 (Tex. App.—Dallas

2001), aff’d, 104 S.W.3d 890 (Tex. Crim. App. 2003).

               Aldrich, a case with similar facts, is instructive. 53 S.W.3d at 468. The defendant

was charged with impersonating a public servant. Id. She admitted that she said she was a peace

officer, but denied telling anyone to “turn around and place their hands behind their back.” Id.



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Because the indictment alleged the defendant impersonated a peace officer by demanding an

individual “turn around and be arrested,” the court concluded that she did not admit to the alleged

conduct in the indictment and did not raise the issue of necessity. Id. Appellant’s alleged conduct

in the indictment was that appellant impersonated a police officer to perform an unlawful search and

detention on Wells:


       . . . [appellant] did then and there impersonate a peace officer with intent to induce
       Roberts Wells, Jr. to submit to the pretended official authority of [appellant] or to
       rely on the pretended official acts of [appellant] by having Roberts Wells, Jr. submit
       to an unlawful search and detention, . . .


Although he admitted that he told Wells he was an officer, appellant did not admit to the conduct

charged in the indictment. He specifically denied that his intentions were to have Wells “submit to

an unlawful search and detention” or that he searched Wells. Because appellant not only did not

admit, but specifically denied, committing the offense as alleged in the indictment, he was not

entitled to an instruction on the defense of necessity, and defense counsel was not deficient by failing

to request such an instruction. See id. at 469-70.

               We also conclude that appellant failed to show that the failure to request an

instruction on necessity prejudiced appellant’s defense. See Strickland, 466 U.S. at 687-88;

Bone, 77 S.W.3d at 833. An instruction on necessity would have included the statutory elements that

a person must reasonably believe that his conduct was “immediately necessary to avoid imminent

harm” and “avoiding the harm clearly outweigh[ed], according to the ordinary standards of

reasonableness, the harm sought to be prevented by the law proscribing the conduct.” See Tex. Penal

Code Ann. § 9.22 (West 2003). Appellant testified that there were people nearby. He had readily


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available options other than impersonating a police officer; he could have sought assistance or called

out for help. A reasonable juror would be unlikely to decide that the harm appellant sought to

avoid, the loss of his four dollars, outweighed the harm sought to be prevented by the prohibition

against impersonating public servants—the loss of public trust in law enforcement. See Dietz

v. State, 62 S.W.3d 335, 340 (Tex. App.—Austin 2001, pet. ref’d). We overrule appellant’s fifth

point of error.


                                           CONCLUSION

                  Having overruled appellant’s points of error, we affirm the trial court’s judgment.




                                                __________________________________________

                                                Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: February 21, 2008

Do Not Publish




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