                         NUMBER 13-17-00456-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JAMES WILBUR HIGGINS,                                                     Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                    On appeal from the 36th District Court
                         of Aransas County, Texas.


                         MEMORANDUM OPINION

          Before Justices Rodriguez, Contreras, and Benavides
              Memorandum Opinion by Justice Rodriguez

      By three issues, appellant James Wilbur Higgins challenges his conviction for

failure to stop and render aid following a traffic collision. See TEX. TRANSP. CODE ANN.

§ 550.021 (West, Westlaw through 2017 1st C.S.). Higgins argues that the trial court
erred when it prevented him from introducing evidence concerning his lawsuit against the

complainant and in denying him a necessity instruction. We affirm.

                                   I.     BACKGROUND

       In 2016, Higgins was involved in a traffic collision with Julius Hjulian. Several

witnesses testified that even before the collision, Hjulian and Higgins had a long history

of acrimony.

A.     Julius Hjulian

       Hjulian, an 81-year-old retiree, testified that on December 9, 2015, he was riding

his tricycle in the left-hand lane of the street, against traffic, when Higgins approached in

a blue SUV, also in the left-hand lane. According to Hjulian, the SUV bumped into him

as it stopped near the edge of the road, nudging his tricycle back a few inches. Hjulian

explained that the two men had an exchange:

       He, well, gave me the finger and said something. I couldn’t make it out.
       He then told me to go around him, and I couldn’t figure that out. I was on
       the edge of the road. He had plenty of room to go around me.

       And I said, “No, go around me.”

       And I don’t remember the time table, but it didn’t take very long, and all of a
       sudden he sped off . . . .

       Hjulian testified that when Higgins sped away, he momentarily blacked out. He

believed that this was due to the SUV colliding with him, because when he came to, he

was sitting on the gravel a few feet from his tricycle. Hjulian sat up and saw Higgins’s

SUV turning onto another street at the end of the block. To his knowledge, Higgins did

not stop and render aid or provide his insurance information. Hjulian found that the

collision had damaged his tricycle and left a scrape of blue paint along its side. Later

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that night, he felt pain from the collision, which led him to go to the hospital. Hjulian

explained that at the time of the collision, he was carrying a firearm in a leather pouch

holstered at his waist, but he did not brandish the weapon at Higgins.

       Hjulian explained that this was not the first time Higgins made a rude gesture to

him; “he has done it a number of times over his fence and so forth and in a couple other

cases.”

       Defense counsel asked Hjulian, “Now, you’re aware that Mr. Higgins had sued you

for conspiracy?” The State lodged an objection, which was sustained. Outside the

presence of the jury, defense counsel expressed a desire to cross-examine Hjulian further

regarding the details of Higgins’s civil suit. The trial court denied the request.

B.     Officer Armando Chapa

       Officer Armando Chapa testified that he responded to a hit and run collision. He

found Hjulian at the scene. He took pictures of the damage to Hjulian’s tricycle, which

had a bent axle and scrapes of blue paint.

       Immediately after the collision, Higgins voluntarily went to the sheriff’s office and

spoke with Officer Chapa.      According to Officer Chapa, Higgins did not mention a

collision with Hjulian. Instead, he reported that Hjulian had kicked his vehicle as he drove

by. Officer Chapa took pictures of Higgins’s SUV, which bore a long, fresh gouge down

the passenger side that Officer Chapa believed to be consistent with recently hitting a

tricycle.

       Officer Chapa testified that Higgins repeatedly attempted to tell him about his

ongoing civil suit with Hjulian, but Officer Chapa steered Higgins away from that subject.

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C.     Arthur Tuttlebee

       Arthur G. Tuttlebee testified that he was a friend of Higgins, and he discussed the

hostilities between Higgins and Hjulian. Tuttlebee testified that some time before the

collision, he tried to talk with Hjulian in an effort to de-escalate the “animosity” between

Hjulian and Higgins, but Hjulian had no interest in talking.

       Tuttlebee explained that two days after the collision, he also nearly collided with

Hjulian as he was riding down the wrong side of the street. Tuttlebee saw the butt of a

gun protruding from Hjulian’s fanny pack, which concerned him.

D.     Joseph C. Allgood

       Joseph C. Allgood testified that he had seen Hjulian riding through the area on a

number of occasions, always with a gun and a can of chemical mace mounted on his

tricycle, and always on the wrong side of the road. Allgood explained that Hjulian usually

stopped near Higgins’s house and recorded activity at the house with his video camera.

       Allgood testified that on the date of the collision, he was riding in Higgins’s back

seat. He saw Hjulian approach, and Hjulian and Higgins both came to a stop, “head to

head,” a few feet apart. According to Allgood, Higgins and Hjulian began gesturing at

one another; Higgins would gesture “you go around, and Hjulian motioned you go

around. . . .   After a series of waving you go around, no, you go around,” Hjulian

appeared to stand up. Defense counsel asked whether Hjulian made a move for the

pouch where he kept his gun:

       Defense Counsel:     Was there any movement toward the pack? Did you
                            observe any movement toward the little fanny pack?



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       Allgood:               Well, when he stood up he kind of put his hands down
                              like this. He might have been on the handle bar, but I
                              believe they looked kind of down when he stood up on
                              his bike. He very well could have been going for a
                              gun. We know he was going back and forth carrying
                              a gun for months prior to this incident.

                ...

       Defense Counsel:       After that what did Mr. Higgins do?

       Allgood:               He turned. I watched. I looked straight at Mr.
                              Higgins; was thinking in my mind this is turning into a
                              pissing contest no one wants to get involved in. Mr.
                              Higgins turned his wheel all the way to the left and took
                              off.

Allgood testified that he did not see any collision, but based on their positions, the tricycle

“should have been able to clear” the SUV. However, according to Allgood, everyone in

the vehicle felt a thud against the side of the vehicle; he thought he saw Hjulian’s leg

raised, as if to kick the vehicle.

       Allgood testified that since the accident, Higgins no longer drives due to “problems

in the neighborhood.” Allgood agreed that he testified in Higgins’s defense during a prior

prosecution for an incident involving Hjulian. He explained that during that incident,

Higgins “didn’t fly off the handle initially until Hjulian started, you know, flinging

obscenities.”

E.     Joshua Hunter

       Allgood’s son Joshua Hunter was also in the SUV on the date of the collision. He

testified that as Hjulian approached, the SUV stopped three to five feet away from the

tricycle. He explained that Hjulian and Higgins began waving at one another to get out



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of the way, until the SUV finally went around Hjulian’s tricycle. As it did so, Hunter heard

a “thump on the side of the vehicle.”

F.     James Wilbur Higgins

       Finally, Higgins testified on the day of the collision, he saw Hjulian approaching on

his tricycle. He stopped with “plenty of clearance” between his vehicle and the tricycle,

which he estimated to be six to eight feet. He explained that he and Hjulian began

waving at one another to pass, but as neither moved, he grew afraid because Hjulian’s

hand was hovering over the leather pouch holstered at his waist. Higgins stated, “I knew

he was carrying a gun for ten months menacing me two times a day every day of the

week. This was an ongoing situation.” Higgins said, “I became fearful because I was

suspecting for quite some time that he was going to get violent with me. I just got the

heck out of there.”

       Higgins further testified that as he drove past, he heard a thump against the side

of his vehicle. He explained, “[A]s we went around him I thought he kicked the side of

my car. I heard that, and I said, ‘Joe, call [defense counsel]. I want this man arrested

for assault.’” He testified that he believed the scratch on his vehicle had occurred when

a truck had backed into his vehicle the day before the collision, though he agreed that it

was possible the tricycle had caused the scratch.

       After the incident he went to the sheriff’s office and spoke to Officer Chapa.

Higgins testified that he told Officer Chapa, “I was concerned because I knew I had just

served Mr. Hjulian with a lawsuit the day before.” The State objected to this testimony

as non-responsive, and the objection was sustained.

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G.     Conclusion of Trial

       After his testimony before the jury, Higgins made an offer of proof in which he

testified to the details of his civil suit against Hjulian, which we discuss later. The parties

closed. At the charge conference, Higgins requested a jury instruction on the necessity

defense, arguing that because he reasonably believed that Hjulian was drawing a

weapon, he was justified in leaving the scene of the collision. The trial court denied the

instruction and submitted only the charged offense for the jury’s resolution.

       The jury determined that Higgins was guilty of failure to stop and render aid after

an accident involving personal injury. See id. The trial court assessed punishment at

one year in county jail. The sentence was suspended, and Higgins was placed on

community supervision for a period of two years, along with various fines and costs.

Higgins appeals.

             II.    EXCLUSION OF EVIDENCE REGARDING HIGGINS’S CIVIL SUIT

       By his first issue, Higgins argues that the trial court erred when it prevented him

from offering evidence of his civil suit against Hjulian to show that Hjulian was a biased

witness.

A.     Offer of Proof

       In Higgins’s offer of proof, he testified about his history of animosity with Hjulian.

He explained that, since 2013, he had been harassed by his neighbor, “Mr. Sarver,” who

once owned Higgins’s property, and who had been stealing his water and encroaching

on his property. After Higgins complained, Sarver’s friend Hjulian began riding up and

down his street on a tricycle with a gun, a can of mace, and a Doberman. He testified


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that Hjulian began recording events at Higgins’s property and that Sarver had Higgins

arrested and convicted of disorderly conduct with the help of Hjulian. He claimed that

someone had “doctored a video tape to make it sound like I was saying, ‘Go get my gun’”

during a confrontation between the men.

       Higgins further testified that Hjulian and Sarver had been attempting to provoke

another confrontation for years, and they succeeded when the collision occurred. He

testified that since the collision, he no longer leaves his property except to buy groceries.

       Higgins stated that he is a disabled veteran with post-traumatic stress disorder and

a minister who frequently spoke to people on his property about alcohol and drug abuse.

He explained that Sarver had installed microphones in order to listen to Higgins’s

conversations with congregants and to use these conversations to Higgins’s detriment.

Higgins also claimed that Sarver installed several cameras facing Higgins’s house.

Higgins testified that he erected tarps twelve feet high to block Sarver’s view, but that

Sarver raised his cameras higher to see over the tarps into Higgins’s bedroom window.

       Higgins elaborated that in December of 2015, he retained a retired Drug

Enforcement Agency agent as a private detective to conduct an investigation of his

property. Higgins testified that the private investigator dug up his yard and discovered

an underground room that he claimed was used by Sarver to manufacture illegal drugs

between 1988 and 2013. He believed that Sarver intended to frame him for constructing

the hidden room. Higgins also testified concerning satanic symbols and a large steel

cage he found in his barn, which he believed that Sarver possibly used to torture people.




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He testified that he had sued both Sarver and Hjulian for their roles in harassing him,

spying on him, and conspiring to frame him.

       At the conclusion of the offer of proof, the trial court reiterated its previous ruling

that this testimony would not be admitted.

B.     Standard of Review and Applicable Law

       We review a trial judge’s decision on the admissibility of evidence under an abuse

of discretion standard. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).

A trial judge abuses his discretion when his decision falls outside the zone of reasonable

disagreement. Id. If the trial court’s evidentiary ruling is correct under any applicable

theory of law, it will not be disturbed even if the trial court gave a wrong or insufficient

reason for the ruling. Id.

       Relevant evidence is generally admissible, and irrelevant evidence is not.

Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). Relevant evidence is

evidence which has any tendency to make the existence of any fact of consequence more

or less probable than it would be without the evidence. Id. The rules of evidence permit

a witness to be cross-examined on specific instances of conduct when they are used to

establish his specific bias, self-interest, or motive for testifying. Hammer v. State, 296

S.W.3d 555, 563 (Tex. Crim. App. 2009). The possible animus, motive, or ill will of a

prosecution witness who testifies against the defendant is never an irrelevant inquiry, and

the defendant is entitled, subject to reasonable restrictions, to show any relevant fact that

might tend to establish ill feeling, bias, motive, interest, or animus on the part of any




                                              9
witness testifying against him. Billodeau v. State, 277 S.W.3d 34, 42–43 (Tex. Crim.

App. 2009).

       However, trial judges retain “wide latitude” to impose restrictions on the scope of

such examination based on such criteria as harassment, prejudice, confusion of the

issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant.

Johnson, 490 S.W.3d at 910; see TEX. R. EVID. 403. Relevant evidence may be excluded

under rule 403 if its probative value is substantially outweighed by the danger of unfair

prejudice. Hammer, 296 S.W.3d at 568.

C.     Discussion

       Higgins argues that the trial court erred when it denied him the opportunity to draw

out the facts underlying his civil suit against Hjulian. He contends that he should have

been able to introduce this evidence—both through cross-examination of Hjulian and his

own testimony—in order to elucidate Hjulian’s bias.

       However, Higgins was able to bring this history of bitterness before the jury in

multiple ways, including discussion of the civil suit itself. Officer Chapa testified that

Higgins repeatedly attempted to tell him about his ongoing civil case with Hjulian.

Higgins’s friends spoke of the “animosity” between the two men and incidents in which

“Hjulian started . . . flinging obscenities” at Higgins. Hjulian testified that Higgins had

given him the middle finger multiple times. Higgins went further, testifying that Hjulian

had “menac[ed]” him with a gun “two times a day every day of the week.” Higgins

explained that due to their hostilities, “I was suspecting for quite some time that he was

going to get violent with me. This was an ongoing situation.” When Higgins heard a

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thumping sound as he passed Hjulian, the acrimony was such that he found it most likely

that Hjulian had kicked his vehicle. Still other testimony acknowledged the existence of

the civil suit, though these questions were the subject of sustained objections.

         Based on all of this evidence, the jury was well aware of Higgins’s position that

Hjulian was not an innocent stranger, but an aggressor who was the subject of an ongoing

civil dispute. Evidence concerning their history of antagonism would have given the jury

“adequate information with which to evaluate” Hjulian for possible “bias, credibility, and

vindictive proclivities.” See United States v. Coleman, 997 F.2d 1101, 1105 (5th Cir.

1993).

         Beyond this, the trial judge did not abuse his discretion by limiting Higgins from

delving further into the complicated civil suit between the two. See United States v.

Brown, 217 F.3d 247, 257–58 (5th Cir. 2000) (finding no error in limiting cross-

examination concerning the defendant’s civil suit against the police because the

defendant otherwise apprised the jury of “his longstanding, mutual antagonism with”

police), vacated on other grounds sub nom. Randle v. United States, 531 U.S. 1136

(2001); see also Hoyos v. State, 982 S.W.2d 419, 421–22 (Tex. Crim. App. 1998) (holding

there was no error in excluding evidence concerning the complainant’s related civil suit).

         In a criminal prosecution, “it is not an abuse of discretion for a trial court to prohibit

questions that delve into the intricate details of a civil suit.” Wappler v. State, 104 S.W.3d

661, 669 (Tex. App.—Houston [1st Dist.] 2003) (op. on reh’g), rev’d on other grounds,

138 S.W.3d 331 (Tex. Crim. App. 2004).               In limiting Higgins from disclosing the

particulars of his civil suit, the trial court could have reasonably determined that the

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probative value of this cumulative evidence was far outweighed by its potential to confuse

the issues in the case. See Hammer, 296 S.W.3d at 568. We therefore conclude that

the trial court did not abuse its wide discretion by limiting this evidence. See Johnson,

490 S.W.3d at 910.

          We overrule Higgins’s first issue.

                                     III.   DEFENSE OF NECESSITY

          By his second issue, Higgins argues that the trial court erred when it refused to

charge the jury on the defense of necessity. He contends that this instruction was raised

by the evidence, and its absence materially harmed his case.

A.        Applicable Law

          The defense of necessity is defined in penal code section 9.22, which

states:

          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, Westlaw through 2017 1st C.S.). Conduct, in turn,

is defined as “an act or omission and its accompanying mental state.” Id. § 1.07(a)(10)




                                                 12
(West, Westlaw through 2017 1st C.S.); Juarez v. State, 308 S.W.3d 398, 403–04 (Tex.

Crim. App. 2010).1

        The confession and avoidance doctrine applies to the necessity defense. Juarez,

308 S.W.3d at 399. Under this doctrine, a defendant must admit to the conduct—the act

and the culpable mental state—of the offense to be entitled to a necessity instruction. Id.

A defendant can admit the offense and satisfy this doctrine in one of two ways: (1) to

admit to all elements of a charged offense or (2) to put on defensive evidence which

essentially admits to every element of the offense, including the culpable mental state.

Id. at 401.

B.      Discussion

        Higgins was required to admit to the charged conduct in order to be entitled to a

necessity instruction. See id. Higgins did not admit to the offense in either fashion

available to him. He did not formally “admit to all elements of the charged offense.” See

id. Instead, he pleaded not guilty and fully pursued his defense at trial. Furthermore,

Higgins’s defensive evidence did not “essentially admit[] to every element of the offense,

including the culpable mental state.” See id. Just the opposite, he denied knowing that

any injurious collision had occurred, believing instead that Hjulian had kicked the side of

his vehicle.




        1  In the trial court, the parties questioned whether the necessity defense applies to the offense of
failure to stop and render aid. We conclude that it does. The necessity defense applies to all offenses
unless the Legislature has specifically provided otherwise in the statute. Bowen v. State, 162 S.W.3d 226,
229 (Tex. Crim. App. 2005). We find nothing in the relevant portion of the transportation code which shows
an intention to exclude this defense. See T EX . T RANSP . C ODE A NN . § 550.021 (West, Westlaw through
2017 1st C.S.); e.g. Sheridan v. State, 950 S.W.2d 755, 758 (Tex. App.—Fort Worth 1997, no pet.) (per
curiam) (considering the necessity defense in the context of prosecution for failure to stop and render aid).
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         Because Higgins did not admit to the charged offense, he was not entitled to an

instruction on the necessity defense. See id. at 399. We overrule Higgins’s second

issue.

                                  IV.        DIRECTED VERDICT

         By his third issue, Higgins asserts that the trial court erred in denying his motion

for directed verdict. However, Higgins’s brief offers no argument in support of this issue.

         Under the rules of appellate procedure, a party’s brief must contain a clear and

concise argument, with appropriate citations to authorities and to the record. TEX. R.

APP. P. 38.1(i). When a party provides no argument or legal authority to support his

appellate position, the issue is inadequately briefed, and the court may decline to address

it. See Bohannan v. State, 546 S.W.3d 166, 180 (Tex. Crim. App. 2017). We decline

to address Higgins’s third issue.

                                        V.     CONCLUSION

         We affirm the judgment of the trial court.


                                                                 NELDA V. RODRIGUEZ
                                                                 Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 15th
day of November, 2018.




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