                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00179-CR

JANET LEE ELLIOTT,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 40th District Court
                               Ellis County, Texas
                             Trial Court No. 29698CR


                                    OPINION


      Raising two issues, Janet Lee Elliott appeals her conviction and six-year prison

sentence for the offense of intercepting a telephone conversation by recording it without

the consent of either party to the conversation. See TEX. PEN. CODE ANN. § 16.02(b)

(Vernon Supp. 2008)). We will affirm.

                                     Background

      Janet and David Elliott were going through an acrimonious and protracted

divorce after about eighteen months of marriage. Janet had undergone numerous back
surgeries because of a car accident and was unable to work. The trial judge in their

divorce proceeding ordered that, while the divorce was pending, she could reside in

David’s home and have exclusive use of a car he allegedly had bought for her before

they were married. Janet feared that David would take her car and hide it, so she kept

the keys hidden. After hearing an answering machine message (which Janet made a

recording of) in which Eric Elliott (David’s son and a Plano police officer) alluded to

taking Janet’s car, Janet obtained and connected a device to the phone to record

telephone conversations. She recorded telephone conversations for about a month,

edited them, and sent an edited tape to the Plano Police Department along with a

complaint that Eric and David were conspiring to take away her car. An internal affairs

investigation occurred (in which Eric was not internally disciplined), and an

investigator spoke with Janet. Janet was subsequently indicted for committing the

offense of interception of an oral communication.

          At trial, Janet readily admitted to recording telephone conversations of David

and Eric without their consent. The trial court refused her request for jury instructions

on the defenses of self-defense and necessity. She alleges in her two issues that the trial

court erred in refusing her two requested instructions respectively.

                                    Standard of Review

          In reviewing complaints of error in the trial court’s charge, we use a two-step

review process. We first determine whether charge error exists and then determine

whether the error caused sufficient harm to warrant reversal.          Abdnor v. State, 871

S.W.2d 726, 731-32 (Tex. Crim. App. 1994); Porter v. State, 921 S.W.2d 553, 557 (Tex.

Elliott v. State                                                                     Page 2
App.—Waco 1996, no pet.). The underlying rationale is that “a defendant is entitled to

be convicted upon a correct statement of the law.” Hutch v. State, 922 S.W.2d 166, 174

(Tex. Crim. App. 1996). If we find that an error exists and that it caused sufficient harm,

we must reverse the trial court’s decision. See Porter, 921 S.W.2d at 557.

                  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).

Stefanoff v. State, 78 S.W.3d 496, 499-500 (Tex. App.—Austin 2002, pet. ref’d).

                                           Necessity

          Justifications that exclude criminal responsibility are set out in Chapter 9 of the

Penal Code. “It is a defense to prosecution that the conduct in question is justified

under this chapter.” TEX. PEN. CODE ANN. § 9.02 (Vernon 2003).

Elliott v. State                                                                           Page 3
          One such statutory justification is 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.

Id. § 9.22.

                  The rationale of the defense is not that the defendant, faced with
          the unnerving threat of harm unless he does an act which violates the
          literal language of the criminal law, somehow loses his mental capacity to
          commit the crime in question. Nor is it that the defendant has not
          engaged in a voluntary act. Rather, it is that even though he has done the
          act the crime requires and has the mental state which the crime requires,
          his conduct which violates the literal language of the criminal law is
          justified because he has thereby avoided a harm of greater magnitude.

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

omitted).

          Elliott’s first issue complains that the trial court erred by refusing to instruct the

jury on necessity. To raise necessity, a defendant must admit that she committed the

offense and then offer necessity as a justification. Young v. State, 991 S.W.2d 835, 839

(Tex. Crim. App. 1999). Elliott testified at trial and admitted recording the phone calls.

The threshold issue is thus whether the record contains evidence that Elliott reasonably

believed her conduct was immediately necessary to avoid imminent harm. See Jackson

v. State, 50 S.W.3d 579, 595 (Tex. App.—Fort Worth 2001, pet. ref’d).


Elliott v. State                                                                          Page 4
          [A] defendant is required to present evidence that she reasonably believed
          a specific harm was imminent. See TEX. PENAL CODE ANN. § 9.22(1);
          Johnson v. State, 650 S.W.2d 414, 416 (Tex. Crim. App. 1983)[, overruled in
          part by Boget v. State, 74 S.W.3d 23, 31 (Tex. Crim. App. 2002)]; Brazelton,
          947 S.W.2d at 648. “Imminent” means something that is impending, not
          pending; something that is on the point of happening, not about to
          happen. Jackson v. State, 50 S.W.3d 579, 594-95 (Tex. App.—Fort Worth
          2001, pet. filed); Smith v. State, 874 S.W.2d 269, 272-73 (Tex. App.—
          Houston [14th Dist.] 1994, pet. ref’d). Harm is imminent when there is an
          emergency situation and it is “immediately necessary” to avoid that harm.
          Jackson, 50 S.W.3d at 594-95; Smith, 874 S.W.2d at 273. In other words, a
          split-second decision is required without time to consider the law. Jackson,
          50 S.W.3d at 594-95; Smith, 874 S.W.2d at 273.

Pennington v. State, 54 S.W.3d 852, 857 (Tex. App.—Fort Worth 2001, pet. ref’d).

          Elliott testified that she decided to record the phone conversations after hearing

an answering machine message relating to Eric trying to get her car. She said that she

began to record phone conversations for about a month so that if David and Eric were

planning to take her car, she would know about it and try to prevent it. Also, she said

she recorded the phone conversations so that someone would believe her claim that

they were planning to take the car because it would otherwise be her word against

David’s. In several of the recorded conversations, David and Eric discussed possibly

taking the car.

          Elliott also testified that she was afraid they might harm her, as David had

previously threatened her with violence and had poked her surgery incisions while she

was sleeping. In one of the recorded conversations, Eric exclaimed that he wished

Elliott were dead and that he would like to shoot her. Thereafter, Elliott edited the

recorded conversations and sent them on one tape to the Plano Police Department with

a letter explaining who was on the tape and what the conversations were about.

Elliott v. State                                                                         Page 5
However, she never reported her fears of the car being taken or her being physically

harmed to law enforcement in Ellis County.

          Elliott argues that the trial court erred in refusing a jury instruction on necessity

because the recorded telephone conversations support her being fearful of David and

Eric taking her car and of possible personal injury by David. The State counters that

there is no evidence of imminent harm to Elliott or her car and that she learned of Eric’s

alleged threat while she was already committing the offense of intercepting a telephone

conversation.

          We find no Texas case where a defendant urged a necessity defense to the

offense of intercepting a telephone conversation.          In a similar California case, the

appellate court ruled that the trial court properly refused a jury instruction on necessity

in a prosecution of a husband’s illegal recordings of his wife and her paramour’s

telephone conversations. People v. Strother, 2004 WL 882100, at *2-3 (Cal. Dist. Ct. App.

Apr. 26, 2004, rev. denied) (not designated for publication). In Strother, the marriage

was troubled yet they shared the house, with the husband moving into the basement

and the wife eventually filing for divorce. The husband testified that he recorded

telephone conversations because he wanted to know what was going on between his

wife and her paramour fearing for his daughter’s safety and her subsequent

upbringing, should he lose custody. Id. at *1-3. He also learned from the recorded

conversations of a threat involving a gun, and he had previously become aware from

his wife that the paramour had a gun. Id. Confirming the trial court’s rationale that the




Elliott v. State                                                                         Page 6
evidence did not establish an imminent threat of harm, the California appeals court

stated:

          [D]efendant’s concern “for the safety of [his] daughter,” which prompted
          him to continue automatically recording every telephone conversation
          after he began the practice, arose from his fear that, if he ultimately lost
          custody of his daughter in the pending divorce action, her subsequent
          “upbringing” would ultimately suffer, not from a fear for her immediate
          physical safety. Even had the jury accepted that defendant's daughter
          would be imperiled by remaining in her mother's care, that evidence did
          not establish that defendant considered it to pose an “emergency”
          situation (cf. In re Eichorn, supra, 69 Cal.App.4th at p. 389).

                  Finally, the evidence failed to establish that defendant recorded
          Christine’s conversations to “protect[ ][him]self from being murdered” by
          Christine’s friend Ron, as he now argues. Even had defendant’s testimony
          shown that the conversation contained an imminent threat of bodily harm,
          which it did not, defendant testified he first heard about “a threat ...
          involving a gun” while listening to a conversation he had unlawfully recorded.
          This testimony effectively undermined any argument that he engaged in
          the illegal eavesdropping because he feared bodily harm at Ron’s hands;
          at the most, defendant feared Ron because of what he heard while
          engaged in illegal eavesdropping.

                  Because the evidence offered by defendant was insufficient to
          permit a reasonable jury to find that his unlawful eavesdropping “was
          done to prevent a significant and imminent evil” (CALJIC No. 4.43), the
          trial court properly refused to instruct the jury on the necessity defense.

Id. at *3-4.

          We agree with the California court’s analysis and find it, along with Texas

necessity law in general, applicable to this case.            Elliott, while understandably

concerned about having her car taken, presented no evidence of imminent harm relating

to the car. See Pennington, 54 S.W.3d at 857 (“Harm is imminent when there is an

emergency situation and it is ‘immediately necessary’ to avoid that harm. … In other

words, a split-second decision is required without time to consider the law.”). Her

Elliott v. State                                                                           Page 7
general fear of being physically harmed is no evidence of imminent harm, and like the

defendant in Strother, she learned of the alleged shooting threat while listening to an

unlawfully recorded conversation, which undermines her argument that she

intercepted the phone conversations out of fear of being shot. See Strother, 2004 WL

882100, at *4.

          In conclusion, because there is no evidence that Elliott engaged in the conduct of

intercepting the phone conversations to prevent imminent harm, the trial court did not

err in refusing to submit a jury instruction on necessity. We overrule her first issue.

                                         Self-Defense

          Elliott’s second issue contends that she was entitled to a jury instruction on self-

defense because of the apparent danger that she apprehended; it attempts to fit her

recording of the telephone calls into the statutory justification of self-defense.

          Section 9.31(a) of the Penal Code provides that a person is justified in using force

against another when and to the degree she reasonably believes the force is immediately

necessary to protect herself against the other’s use or attempted use of unlawful force.

See TEX. PEN. CODE ANN. § 9.31(a) (Vernon Supp. 2008). By its express terms, this

statute’s application is for a defendant accused of using force against another. Citing

Boget v. State, Elliott argues that self-defense can be asserted when the defendant is

accused of an offense not involving the use of force. See Boget v. State, 74 S.W.3d 23

(Tex. Crim. App. 2002). There the court held that self-defense could apply to the offense

of criminal mischief when the “mischief arises out of the accused’s use of force against

another.” Id. at 24, 31.

Elliott v. State                                                                        Page 8
          In Boget, the defendant was charged with criminal mischief for breaking a truck’s

windshield with a flashlight, and he offered evidence that the truck had been driving at

him and almost hit him. While the court held that self-defense was available to the

defendant in a prosecution for criminal mischief, the mischief must have arisen out of

the defendant’s use of force. See id. at 27 (“in Boget’s case, the criminal mischief was

part and parcel of his ‘use of force against another.’ In other words, without Boget’s use

of force there would have been no criminal mischief.”); id. at 31 (“The relevant inquiry

is whether he directed his force against another.”).

          In this case there is no evidence that Elliott directed force against another in

recording the telephone conversations. Therefore, the trial court did not err in refusing

to submit a jury instruction on self-defense. Elliott’s second issue is overruled.

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



                                                  REX D. DAVIS
                                                  Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed June 24, 2009
Publish
[CR25]




Elliott v. State                                                                     Page 9
