                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00103-CR

HOMER RAY HARRISON,
                                                                Appellant
v.

THE STATE OF TEXAS,
                                                                Appellee


                       From the County Court at Law No. 2
                              Brazos County, Texas
                       Trial Court No. 09-03178-CRM-CCL2


                                      OPINION


       Homer Ray Harrison was convicted of driving while his license was invalid, a

subsequent offense, and sentenced to 60 days in jail.           TEX. TRANSP. CODE ANN. §

521.457(a), (f) (West 2013). Because Harrison was not entitled to an instruction on the

defense of necessity, the trial court’s judgment is affirmed.

BACKGROUND

       In July of 2009, Harrison was stopped by a Bryan Police officer for an expired

vehicle registration. The registration had been expired for 11 months. The vehicle’s
inspection had also expired 10 months earlier. At the time the officer passed Harrison,

Harrison was in the left lane, signaling to turn left on a roadway. When the officer

made a u-turn to pull Harrison over, Harrison made a right turn from the left lane

instead. After the stop, when asked by the officer where he was going, Harrison

responded that he was going to the “boulevard.” When asked why he turned right

from the left lane, Harrison responded that the light took too long to change.

        Harrison did not have an ID card or a driver’s license with him in the vehicle.

He told the officer that his driver’s license was probably suspended but said he had not

been convicted previously of driving with a suspended license. The officer returned to

his patrol unit and checked Harrison’s name and date of birth. He discovered that

Harrison’s driver’s license was invalid and that Harrison had three prior convictions for

driving while his license was invalid. The State presented evidence that Harrison had

been convicted before for the same offense in 2004 and that the State of Texas initially

suspended Harrison’s license because it had been suspended in another state. There

were no records which indicated that Harrison ever obtained an occupational license.

        Harrison did not testify. His brother, Scott, did. Scott stated that he had a heart

condition and had called Harrison the day Harrison was arrested because Scott was not

well. Scott said his chest was fluttering and he thought he was about to go into cardiac

arrest. He thought his life was in danger and called Harrison because Harrison was the

closest to him. Harrison told Scott that Harrison would get there as soon as he could.


Harrison v. State                                                                    Page 2
At the time of trial, Scott knew Harrison’s license was suspended. Scott did not know if

Harrison knew his license was suspended at the time Scott called him.

        Scott did not go to the hospital that day. He did not call an ambulance because it

was something that he did not “care to be involved in.” He called a nurse’s assistance

number and was told by the nurse to take his medicine that he was supposed to be

taking and sit still. Scott could not remember if he ever received a call from Harrison

letting Scott know that Harrison would not be coming over because of the arrest. Scott

and Harrison’s attorney reviewed the video exhibit from the arresting officer’s patrol

car, and from that review, Scott could tell that Harrison was on his way over to the

Harrison family home where Scott lived.

NECESSITY DEFENSE

        Harrison requested a jury instruction on the defense of necessity but the trial

court refused the request. On appeal, he argues that the trial court erred in refusing to

instruct the jury on the defense of necessity.

        Necessity is a defense where 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.


Harrison v. State                                                                     Page 3
TEX. PENAL CODE ANN. § 9.22 (West 2011).             Thus, it is a defense to criminal

responsibility, under Section 9.02 of the Penal Code, if the criminal "conduct" is

"justified." TEX. PENAL CODE ANN. 9.02 (West 2011); Shaw v. State, 243 S.W.3d 647, 659

(Tex. Crim. App. 2007). Justification, by definition, does not negate any element of the

offense, including culpable intent; it only excuses what would otherwise constitute

criminal conduct. Shaw, 243 S.W.3d at 659.

        There are two obstacles Harrison must overcome before the trial court is required

to submit an instruction on the defense of necessity. The first obstacle is the confession

and avoidance doctrine. Juarez v. State, 308 S.W.3d 398, 399 (Tex. Crim. App. 2010). The

second obstacle is whether evidence was admitted which would support the defense.

TEX. PENAL CODE ANN. § 2.03(c) (West 2011). If Harrison cannot overcome the first

obstacle, we need not determine whether he overcame the second obstacle. See Ray v.

State, 10-12-00271-CR, 2013 Tex. App. LEXIS 4939 (Tex. App. —Waco Apr. 18, 2013, no

pet. h.)

        To be entitled to a necessity defense instruction, a defendant must first admit to

every element of the offense, including the culpable mental state. Shaw v. State, 243

S.W.3d 647, 659 (Tex. Crim. App. 2007); see also Juarez, 308 S.W.3d at 399. (“every

element” equated to the Penal Code definition of “conduct”). Harrison was charged

with driving while his license was invalid, a subsequent offense. TEX. TRANSP. CODE

ANN. § 521.457(a), (f) (West 2013). As charged in this case, a person commits an offense


Harrison v. State                                                                   Page 4
under this section of the Code if the person operates a motor vehicle on a highway after

the person's driver's license has been canceled if the person does not have a license that

was subsequently issued under Chapter 521 of the Code, and has been previously

convicted of an offense under section 521.457. Id. (a)(1), (f). There is no culpable mental

state for this type of offense. Clayton v. State, 652 S.W.2d 810, 812 (Tex. App.—Amarillo

1983, no pet.). Thus, Harrison was required to admit to operating a motor vehicle on a

highway after his license had been cancelled and to having been previously convicted

of an offense under section 521.457.

        Harrison did not testify. However, Harrison suggests, and the State does not

contest the suggestion, that defensive evidence is sufficient to meet the requirement that

Harrison admit to the conduct of the charged offense. The Court of Criminal Appeals’

opinion in Shaw v. State supports Harrison’s suggestion. Shaw v. State, 243 S.W.3d 647,

659 (Tex. Crim. App. 2007) (“a defensive instruction is only appropriate when the

defendant's defensive evidence essentially admits to every element of the offense

including the culpable mental state, but interposes the justification to excuse the

otherwise criminal conduct”). Regardless of whether defensive evidence is sufficient to

admit to the conduct, Harrison’s defensive evidence did not essentially admit to every

element of the offense charged. None of Harrison’s evidence admitted that Harrison

had been previously convicted of an offense under section 521.457. Rather, the evidence




Harrison v. State                                                                    Page 5
showed that Harrison specifically denied that he had been previously convicted of an

offense under that section.

        Because Harrison’s defensive evidence did not admit to all the elements of the

charged offense, Harrison was not entitled to an instruction on the defense of necessity.

Thus, the trial court did not err in refusing to submit the requested instruction.

        Harrison’s sole issue is overruled, and the trial court’s judgment is affirmed.




                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 12, 2013
Publish
[CR25]




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