                                                                                             ACCEPTED
                                                                                        03-14-00579-CR
                                                                                               4328168
                                                                              THIRD COURT OF APPEALS
                                                                                         AUSTIN, TEXAS
                                                                                   3/2/2015 11:08:04 AM
                             No. 03-14-00579-CR                                        JEFFREY D. KYLE
                                                                                                 CLERK




                                                                        FILED IN
                        In the Third Court of Appeals            3rd COURT OF APPEALS
                                                                     AUSTIN, TEXAS
                                Austin, Texas
                                                                 3/2/2015 11:08:04 AM
                                                                   JEFFREY D. KYLE
                                                                         Clerk

                            PERRY PENNING,
                                              Appellant,

                                         v.

                         THE STATE OF TEXAS,
                                              Appellee.


                On appeal from the County Court-at-Law Number Seven,
                                  Travis County, Texas
                           Trial Cause No. C-1-CR-12-209292




                              STATE'S BRIEF

                                      DAVID A. ESCAMILLA
                                      TRAVIS COUNTY ATTORNEY


                                      GISELLE HORTON
                                      ASSIST ANT TRAVIS COUNTY ATTORNEY
                                      State Bar Number 10018000
                                      Post Office Box 1748
                                      Austin, Texas 78767
                                      Telephone: (512)854-9415
                                      TCAppellate@traviscountytx.gov

March 2, 2015                         ATTORNEYS FOR THE STATE OF TEXAS


                       ORAL ARGUMENT IS NOT REQUESTED
                              TABLE OF CONTENTS

INDEX OF AUTHORITIES ......................................... ii

STATEMENT OF THE CASE ....................................... 1

ISSUES PRESENTED .............................................. 1

BACKGROUND .................................................. 2

SUMMARY OF THE STATE'S ARGUMENT ......................... 4

ARGUMENT

     Reply Point One: The trial court did not err in failing to
     include a jury instruction on self-defense. . ...................... 5

     Reply Point Two: The trial court did not err in failing to include
     a jury instruction on the justification of necessity ................. 5

          The trial court properly found that a reasonable view of
          Penning's testimony did not support the conclusion that
          Penning had admitted to intentionally and knowingly
          displaying a firearm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

PRAYER ........................................................ 10

CERTIFICATE OF COMPLIANCE ................................. 11

CERTIFICATE OF SERVICE ....................................... 12




                                               i
                       INDEX OF AUTHORITIES
Statutes                                                         Page
TEX. PENAL CODE § 9.22
      (West Supp. 2014) ............................................ 6
TEX. PENAL CODE§ 9.31
      (West Supp. 2014) ............................................ 6
TEX. PENAL CODE§ 42.01(a)(8)
      (West Supp. 2014) ............................................ 1

Cases
Cornet v. State, 359 S.W.3d 217
      (Tex. Crim. App. 2012) ........................................ 9
Dewalt v. State, 307 S.W.3d 437
      (Tex. App.- Austin 2010, pet. ref' d) ............................ 6
Johnson v. State, 650 S.W.2d 414
      (Tex. Crim. App. 1983) ........................................ 6
Juarez v. State, 308 S.W.3d 398
      (Tex. Crim. App. 2010) .................................. 1, 5, 6, 7
Krajcovic v. State, 393 S.W.3d 282
      (Tex. Crim. App. 2013) ........................................ 8
Pennington v. State, 54 S.W.3d 852
      (Tex. App.-Fort Worth 2001, no pet.) .......................... 6
Shaw v. State, 243 S.W.3d 647
      (Tex. Crim. App. 2007) ..................................... 7, 10
Sony v. State, 307 S.W.3d 348
      (Tex. App. -San Antonio 2009, no pet.) ......................... 6
Wilson v. State, 777 S.W.2d 823
      (Tex. App.-Austin 1989), aff'd, 853 S.W.547
      (Tex. Crim. App. 1993) ........................................ 7

Other Sources
THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE
     (5th ed. 2014) ................................................ 7
                                    11
                          STATEMENT OF THE CASE

       Penning was charged by information with the Class B misdemeanor

offense of disorderly conduct by displaying a firearm on June 6, 2012. CR

7-8, 89? A jury found him guilty of the offense on May 14, 2014. CR 92.

Thereafter, Penning accepted the State's punishment offer, and, on May 22,

2014, the trial court sentenced Penning to 180 days' confinement in jail and

a $2,000 fine, but suspended imposition of sentence and placed Penning on

community supervision for two years. CR 93-95. Penning gave written

notice of appeal on June 20,2014. CR 99.

                              ISSUES PRESENTED

      The confession and avoidance doctrine is satisfied- and self-defense

and necessity instructions are required -when a reasonable view of the

defendant's testimony would support the defendant's admission of the

conduct and the required mental state. Juarez v. State, 308 S.W.3d 398, 401

(Tex. Crim. App. 2010). At trial, Penning categorically denied displaying


       A person commits the offense of disorderly conduct by intentionally or
knowingly displaying a firearm or other deadly weapon in a public place in a manner
calculated to alarm. TEX. PENAL CODE§ 42.0l(a)(8) (West Supp. 2014).
                                          1
his handgun, testifying instead that it remained in its holster, tucked inside

his pants. 6 RR 106, 135-36. He also denied intending to display his

handgun. Did the trial court err in refusing to include the requested self-

defense and necessity instructions in the jury charge?

                               BACKGROUND

      Penning was charged with disorderly conduct after a road rage

incident in which he stopped his car on Highway 183, got out, and

displayed a handgun to Jerod Hill, another motorist. 5 RR 72-79.

      Hill had attempted to merge into the right lane of traffic on the

highway. 5 RR 27. Because other drivers did not let him merge, he was

forced onto the shoulder, which was about to end several feet ahead. 5 RR

74. Penning and his wife drove past Hill without letting him in, forcing Hill

to slam on his brakes to avoid hitting Penning's car or a guardrail. 5 RR 74.

      Penning came to a standstill in the right lane of the highway. 5 RR 74.

Yelling at Hill, he got out of his car and walked towards him. 5 RR 28. Hill

reached for his cell phone. 5 RR 28. Penning pulled a gun on Hill and

yelled, "If I do it, you're dead." 5 RR 35, 76. Both Penning and Hill fell
                                       2
silent. 5 RR 28. Penning got back into his car. 5 RR 77.

      Hill drove around Penning's car and exited the highway. 5 RR 77.

Penning followed. 5 RR 77. When Hill realized that Penning was following

him, he called 9-1-1 and ran a red light out of fear for his own safety. 5 RR

29. Penning continued to follow Hill for ten minutes before pulling into a

gas station, where police eventually detained him. 5 RR 31, 125-26, 129.

      Police handcuffed Penning and seized the handgun for safety

reasons after they confirmed that he was armed, told him not to reach for

his weapon, and saw him quickly move his arm toward the gun. It was

loaded. 5 RR 92. They arrested Penning after Hill was brought to the scene

and identified him. 5 RR 112.

      Penning took the stand at trial. 6 RR 106-190. The first thing out of

his mouth after he stated his name was, "I never displayed my handgun.

Never." 6 RR 106. "I don't depend on showing it to anybody." 6 RR 107. In

any event, he testified at trial that he did not intend to display his weapon.

6 RR 140. Penning explained that he generally avoids displaying his



                                       3
weapon because he doesn't want anyone to know he is carrying a firearm.

6 RR 141.

      At the close of evidence, defense couns,el requested jury-charge

instructions on self-defense, necessity, and public duty, which the trial

court denied. 6 RR 195-97.

      In two points of error, Penning contends that his testimony satisfied

the confession and avoidance doctrine, and that the trial court therefore

erred in denying his requests for jury instructions on self-defense and

necessity.

               SUMMARY OF THE STATE'S ARGUMENT

      Penning asks the Court to hold that a defensive justification may be

raised by speculative defense testimony, but binding precedent forbids

this. He also urges the Court to abandon common sense when viewing the

rational inferences that arise from the evidence in question. The record

shows that Penning did not affirmatively admit displaying the weapon,

but merely speculated that someone might have seen about an inch of it.

He also vehemently denied having the required mental state. On this
                                      4
record, the confession and avoidance doctrine is not satisfied. The trial
                                  r


court therefore did not err in refusing to include the requested self-defense

and necessity jury instructions in the jury charge.

                                  ARGUMENT

      Reply Point One: The trial court did not err in failing to
      include a jury instruction on self-defense.

      Reply Point Two: The trial court did not err in failing to
      include a jury instruction on the justification of necessity.

      Penning contends that his testimony amounted to an admission

under the law, even though he denied displaying or intending to display

his weapon. He asks the Court to interpret "intentionally or knowingly

display" broadly, to include "manifesting or giving evidence of its

presence through gestures or bodily posture even if the gun is not in plain

sight." Penning's Brief, p. 11.

      Under the confession and avoidance doctrine, before a criminal

defendant is entitled to a requested necessity or self-defense instruction,

he must first admit committing the offense and then offer a justification for

the misconduct. Juarez v. State, 308 S.W.3d 398 (Tex. Crim. App. 2010). To
                                      5
receive a necessity instruction, a defendant must present evidence that he

reasonably believed that his conduct was immediately necessary to avoid a

specific, imminent harm. TEX. PENAL CODE§ 9.22 (West Supp. 2014);

Johnson v. State, 650 S.W.2d 414, 416 (Tex. Crim. App. 1983); Dewalt v. State,

307 S.W.3d 437 (Tex. App.- Austin 2010, pet. ref' d); Sony v. State, 307

S.W.3d 348 (Tex. App.-San Antonio 2009, no pet.); Pennington v. State, 54

S.W.3d 852 (Tex. App.-Fort Worth 2001, no pet.). To receive a self-defense

instruction, the evidence must show that Penning reasonably believed that

his use of force was immediately necessary to protect himself from Hill's

use or attempted use of unlawful force. TEX. PENAL CODE§ 9.31 (West

Supp. 2014).

      In Juarez v. State, 308 S.W.3d at 405-06, the Court of Criminal Appeals

reaffirmed that, to be entitled to a necessity instruction, a defendant must

admit both the act and the mental state. Although Juarez denied biting the

officer intentionally, knowingly, or recklessly, he nevertheless admitted

biting the officer because the officer had him on the ground and was

causing him to suffocate. An intentional, knowing, or reckless biting
                                      6
reasonably could have been inferred from the defendant's testimony.

Juarez, 308 S.W.3d at 405-06. The Juarez Court therefore held that the

defendant should have been given the requested necessity instruction.

Thus, under Juarez, the rule is that a requested instruction is required if a

reasonable view of the defendant's testimony would support the

defendant's admission of the conduct and the required mental state.

      Whether the evidence raises a necessity defense so as to require a

jury instruction is require is a question of law. Wilson v. State, 777 S.W.2d

823, 825 (Tex. App.-Austin 1989), aff'd, 853 S.W.547 (Tex. Crim. App.

1993). In determining whether a defensive instruction is warranted, "a

court must rely on its own judgment, formed in the light of its own

common sense and experience, as to the limits of rational inference from

the facts proven." Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007).

      The trial court properly found that a reasonable view of Penning's
testimony did not support the conclusion that Penning had admitted to
intentionally and knowingly displaying a firearm.

      To intentionally or knowingly display means to intentionally or

knowingly present to view. THE AMERICAN HERITAGE DICTIONARY OF THE
                                       7
ENGLISH LANGUAGE       (5th ed. 2014). Nothing shows that Penning's

tightening his shirt to possibly reveal the shape of the gun and holding his

hand near his hip presented his weapon to view or caused it to be seen. See

6 RR 134-36. Viewed in the context of this record, Penning's testimony

speculating that "less than half an inch of barrel and maybe a piece of

holster" might have been seen was not an admission to presenting a

firearm to view. Certainly his testimony did not admit to doing so

intentionally or knowingly. 6 RR 141.

         Rather than affirmatively admit the conduct and the required mental

state, as the confession and avoidance doctrine requires, Penning offered

only speculative testimony about what a "normal person" "most likely"

would have thought. 6 RR 136-37. Evidence to support a defense "cannot

be based on speculation or hypothetical'what if' scenarios." Krajcovic v.

State, 393 S.W.3d 282, 287 (Tex. Crim. App. 2013).

         Penning's testimony denied that he engaged in the alleged

misconduct. And he unequivocally denied having the requisite mental

state.
                                       8
       DEFENSE COUNSEL: Did you intend to display your weapon
       when you put your hand on your hip?

       PENNING:            No. My intention was not to display my
       weapon. In fact, I didn't even display it. My weapon is still in
       the holster. About all you could-- if you want to call it display
       -- it's less than half inch of barrel and maybe a piece of holster,
       so that would be display. It don't even meet the criteria of
       display in the law.

6 RR 140-41. And, unlike Juarez, the requisite mental state cannot

reasonably be inferred here.

       Penning has failed to view the facts of this case through the lens of

common sense. He has also misread Cornet v. State, 359 S.W.3d 217 (Tex.

Crim. App. 2012) when he asserts that "where a defendant denies

committing an element of the charged crime, but testifies to conduct that

could be construed as commission of the element in the legal sense, he has

'essentially admitted' to it under the doctrine of confession and

avoidance." Penning's Brief, p. 7. Cornet specifically did not reach that

issue. Id. at 227.

      Viewing the record in a defense-favorable light does not mean

leaving common sense out of the picture, as appellate counsel would have
                                        9
the Court believe. Common sense shows that Penning did not admit to

displaying his gun with the required mental state. See Shaw, 243 S.W.3d at

658. Penning was trying to have it both ways; he denied committing the

offense to avoid conviction, and at the same time he tried to admit just

enough to be entitled to defensive instructions. The limited inference made

in Juarez was commonsensical. Here, however, Penning's testimony was

not only highly contradictory but also highly speculative. Inferring an

admission of intentional display from that testimony would exceed the

bounds of common sense. To reward Penning now with a reversal for new

trial would encourage dodgy trial testimony, undermine the policy behind

the confession and avoidance doctrine, and leave trial courts without any

true guidance.

                                  PRAYER

      For these reasons, the Travis County Attorney, on behalf of the State

of Texas, asks this Court to overrule Penning's points of error and affirm

the judgment of conviction for disorderly conduct.



                                     10
                                  Respectfully submitted,

                                  DAVID A. ESCAMILLA
                                  TRAVIS COUNTY ATTORNEY




                                              I
                                  Assist t7ravis County Attorney
                                  Stat , /arNumber 10018000
                                  P Office Box 1748
                                  Austin, Texas 78767
                                  Telephone: (512)854-9415
                                  TCAppellate@traviscountytx.gov

                                  ATTORNEYS FOR THE STATE OF TEXAS


                   CERTIFICATE OF COMPLIANCE

      Relying on Corel WordPerfect's word-count function, I certify that
this document complies with the word-count limitations of TEX. R. APP. P.
9.4. The document (counting all relevant parts under TRAP 9.4(i)(1))
contains 2338 words.




                                    11
                        CERTIFICATE OF SERVICE

      I certify that I have sent a complete and legible copy of this State's
Brief via electronic transmission, to Ms. Connie Kelley, at
warrentucker@grandecom.net on or before March 2, 2015.




                                                 ravis County Attorney




                                       12
