                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-156-CR


JOSIAH REED                                                           APPELLANT

                                              V.

THE STATE OF TEXAS                                                         STATE

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            FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

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                           MEMORANDUM OPINION 1

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      Appellant Josiah Reed appeals from his conviction for unauthorized use

of a motor vehicle. In two points, he argues that the evidence is legally and

factually insufficient to support the jury’s rejection of his defense of necessity.

We affirm.




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          … See T EX. R. A PP. P. 47.4.
                                 Background

      Appellant shared a house with his girlfriend, Shane Dewbre; Andrew

Walden; and Walden’s girlfriend, Shirley Hatcher.     On December 7, 2003,

Dewbre told Appellant that she wanted him to move out. Dewbre testified that

she had given the keys to her minivan to Walden so that Walden could drive

Appellant and his possessions to Appellant’s grandmother’s house. The original

plan was for Dewbre to drive Appellant to his grandmother’s, but Dewbre

agreed to let Walden drive Appellant when Walden insisted that she allow him

to do so. Dewbre testified that she did not give Appellant permission to drive

the van.

      Walden testified that he helped Appellant pack and load the van.

According to Walden, Appellant agreed to allow him, rather than Dewbre, to

drive Appellant to his grandmother’s house. Walden said that when he went

back into the house to tell Dewbre that Appellant agreed to the change in plan,

they heard the van’s engine start. Walden said that he thought he had left the

keys in the van’s ignition switch, but he was not sure. Walden ran out and

attempted to jump through the window behind the driver’s seat as Appellant

drove away. Walden testified that Appellant accelerated and swerved from

curb to curb and that he fell off of the van after a few blocks.




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      Walden went back to the house, then went looking for Appellant.

Eventually, Appellant called the house from his grandmother’s cell phone.

Appellant agreed    to   return   the   van.   Meanwhile, two    of Walden’s

friends—Jeremy Hinchman and John Vargas—arrived at the house.

      Walden testified that when Appellant returned to the house with the van,

Hinchman went out to get the keys from him. Hinchman testified that he and

Vargas went to talk to Appellant and convince him to go into the house but that

Appellant stayed in the van and yelled at them.       Hinchman testified that

Appellant attempted to run him and Vargas over with the van. He said that

Walden then came out of the house and that Appellant put the van in reverse,

backed up seventy-five feet, ran over Walden, pulled forward, then backed up

and ran over Walden a second time.

      Walden testified that he left the house’s porch when he saw Appellant

attempt to run over Hinchman and Vargas and that Appellant backed up, ran

over him, and dragged him down the street, causing him serious bodily injury.

He said that as Appellant ran over him, Hinchman climbed on the van’s hood

and smashed the windshield with his hand. Hinchman also testified that he

broke the windshield with his fist in an attempt to make Appellant stop.

      Appellant testified that he, Dewbre, and Walden were methamphetamine

users and that Walden had been growing increasingly aggressive. He said that

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in November 2003, Walden shot a gun at a man who refused to procure drugs

for Walden; Appellant said he was scared of Walden after that. He testified

that on the day of the incident, Dewbre handed her keys to him, told him to

load his belongings into the van, and said that she would drive him to his

grandmother’s house.

      According to Appellant, after he had loaded the van, Walden told him that

he and Walden had to go retrieve money from a friend of Appellant’s who had

taken the money as part of an attempt to purchase drugs. Appellant testified

that he was afraid that he and W alden were about to fight, so when Walden

went back into the house, Appellant started the van—he said he still had the

keys—and drove away.      He acknowledged that he did not have Dewbre’s

consent to drive the van. Appellant said that he became aware that Walden

was holding onto the van, so he drove up on a curb, and Walden let go.

Appellant testified that he then drove to his brother’s house five blocks away

and asked his brother to check on Walden.

      Appellant said that he drove to his grandmother’s home, unloaded the

van, and called Dewbre to see if she wanted him to return the van. He drove

back to Dewbre’s house and honked the horn to get Dewbre’s attention; he

testified that he did not want to go into the house because he was afraid that

Walden was inside. Appellant said that Hinchman and Vargas came out of the

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house and tried to open the van’s doors, that Vargas had a knife, and that

Hinchman climbed on the van’s front bumper and broke the windshield with a

baseball bat. Appellant said that he “freaked out” and drove the van forward

and then backward to dislodge Hinchman from the bumper. Appellant testified

that he did not see Walden and did not know he had run over him. Appellant

said that he drove to a friend’s house and called the police.

       The grand jury indicted Appellant for unauthorized use of a motor

vehicle.2     At trial, Appellant asserted the defense of necessity; that is, he

argued that it was necessary for him to drive off in Dewbre’s van to avoid an

altercation with Walden. The trial court charged the jury on necessity. The jury

convicted Appellant, and the trial court assessed punishment at one year in the

State jail.

                                Standard of Review

       When reviewing the legal sufficiency of the evidence to support a

conviction, we view all the evidence in the light most favorable to the

prosecution in order to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson




       2
      … The record suggests that the grand jury also indicted Appellant for
aggravated assault, but that alleged offense is not the subject of this appeal.

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v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      After the defendant has introduced some evidence of a defense, the State

bears the burden of persuasion to disprove it. Zuliani v. State, 97 S.W.3d 589,

594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 913–14 (Tex.

Crim. App. 1991).     This burden does not require the State to introduce

evidence disproving the defense; rather, it requires the State to prove its case

beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d

at 913. To determine sufficiency of the evidence to disprove a nonaffirmative

defense, the appellate court asks whether, after viewing all the evidence in the

light most favorable to the prosecution, any rational trier of fact would have

found the essential elements of the offense beyond a reasonable doubt and also

would have found against appellant on the defensive issue beyond a reasonable

doubt. Saxton, 804 S.W.2d at 914.

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the fact-finder’s determination is clearly wrong and

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manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). The reviewing court applies the same

standard of review when a defendant challenges the factual sufficiency of the

rejection of a defense. See Zuliani, 97 S.W.2d at 595. A guilty finding is an

implicit rejection of the defense. Zuliani, 97 S.W.3d at 594.

                                  Discussion

      Under the defense of necessity, a defendant’s actions are justified if the

actor reasonably believes the conduct is immediately necessary to avoid

imminent harm, the desirability or urgency of avoiding the harm clearly

outweighs the harm sought to be prevented by the laws proscribing the

conduct, and a legislative purpose to exclude the justification does not

otherwise plainly appear. See T EX . P ENAL C ODE A NN. § 9.22 (Vernon 2003).

“Imminent” means “ready to take place, near at hand, impending, hanging

threateningly over one’s head, menacingly near.” Devine v. State, 786 S.W.2d

268, 270 (Tex. Crim. App. 1989).           Harm is imminent when there is an

emergency situation and the actor’s conduct is immediately necessary to avoid

that harm. Jackson v. State, 50 S.W.3d 579, 595 (Tex. App.—Fort Worth

2001, pet. ref’d).     In other words, a split-second decision would be

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required—without time to consider the law—for a danger to be considered

imminent. Id. Furthermore, the defense of necessity requires substantially

admitting the committed offense or at a minimum admitting the conduct that

forms that offense. See Young v. State, 991 S.W .2d 835, 839 (Tex. Crim.

App. 1999); see also Hubbard v. State, 133 S.W.3d 797, 801 (Tex.

App.—Texarkana 2004, pet. ref’d).

      In this case, Appellant admitted that he committed the offense when he

acknowledged that he drove the van without Dewbre’s consent.           He also

offered testimony that he believed that he was in some danger from Walden.

However, a rational fact-finder could conclude that the danger did not create

an emergency that required a split-second decision.     The jury was free to

believe Walden and Dewbre; their testimony did not support Appellant’s claim

of imminent danger. Moreover, Appellant testified that he drove away in the

van when Walden went back into the house; he did not explain why he did not

take that opportunity to walk or run away to a safe location, such as his

brother’s house just five blocks away. The fact that he later voluntarily drove

back to Dewbre’s house, where he knew or suspected Walden was, further

undermines his assertion that he believed that Walden posed an imminent

danger to him or that driving away in the van was immediately necessary to

avoid the supposed danger.

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      Viewing the evidence in the light most favorable to the verdict, we hold

that it is legally sufficient to support the jury’s finding of guilt and its implicit

rejection of Appellant’s necessity defense. See Clayton, 235 S.W.3d at 778;

Zuliani, 97 S.W.3d at 594. Viewing the evidence in a neutral light, we hold

that it is also factually sufficient. See Watson, 204 S.W.3d at 414.

      We overrule both of Appellant’s points and affirm the trial court’s

judgment.

                                             PER CURIAM

PANEL F:     GARDNER, LIVINGSTON, and DAUPHINOT, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: May 1, 2008




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