
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-08-00441-CR


Anthony Jerome Scotts, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. D-1-DC-06-206246, HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		A jury convicted appellant Anthony Jerome Scotts of possession of a controlled
substance, see Tex. Health & Safety Code Ann. § 481.115 (West 2003), and the district court
sentenced him to eight years in prison.  Scotts argues that the evidence was factually insufficient to
support the judgment.  We affirm the judgment of conviction.
		On November 4, 2006, police responded to a report of a domestic disturbance at
the home of appellant Anthony Jerome Scotts.  When Detective Anthony Nelson arrived at Scotts's
apartment, Scotts's girlfriend, Angela Williams, who was pregnant at the time, was standing outside
and was obviously upset.  She told Nelson that Scotts had just assaulted her and that he was inside
the apartment.  Shortly thereafter, Scotts came out of the apartment.  Nelson frisked Scotts and
discovered a plastic bag containing crack cocaine in Scotts's clenched fist.  Nelson then arrested
and performed a full search of Scotts.  Nelson's search revealed a pill bottle containing more
crack cocaine.  Lab testing confirmed that the two substances found in the plastic bag and the
pill bottle were, indeed, crack cocaine and that the bag contained 2.58 grams while the pill bottle
contained .67 grams.
		At trial, Scotts stipulated to possessing the crack cocaine, but stated that he had taken
it from his pregnant girlfriend in order to prevent her from consuming it.  A jury found Scotts guilty,
and the district court sentenced him to eight years in prison.
		Scotts argues that the evidence was factually insufficient to support the judgment of
conviction.  Although Scotts stipulated to possessing the cocaine, he argues that he proved necessity
by showing that, if he had not taken the cocaine from Williams, Williams would have consumed it
and caused harm to her unborn child.
		In a factual-sufficiency review, the evidence is reviewed in a neutral light.  Roberts
v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007).  Evidence is factually insufficient (1) when
the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly
unjust; or (2) when the supporting evidence is outweighed by the great weight and preponderance
of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust.  Id.  An
appellate court must be appropriately deferential to the jury's verdict in order to avoid substituting
its own judgment for that of the fact-finder.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App.
2002).  We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. 
King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).
		To prevail on a defense of necessity, the contemplated harm must be imminent. 
"Imminent" means that something is impending, not pending; something that is on the point of
happening, not about to happen.  Schier v. State, 60 S.W.3d 340, 343 (Tex. App.--Houston
[14th Dist.] 2001, pet. ref'd).  Imminent harm contemplates an emergency situation, requiring
immediate action or a split-second decision without time to consider the law.  Id.  A general fear of
harm, alone, is insufficient to invoke the necessity defense; rather, the necessity defense requires
imminent harm such that an immediate, non-deliberative action must be made without hesitation or
thought of the legal consequence.  See Stefanoff v. State, 78 S.W.3d 496, 501 (Tex. App.--Austin
2002, pet. ref'd).
		Scotts contends that his possession of the crack cocaine was necessary to prevent his
pregnant girlfriend from consuming it.  However, even assuming that Scotts believed that Williams's
unborn child was in immediate danger when Williams "went to go get" the crack cocaine, there is
no evidence that the imminent harm still existed at the time that the offense actually occurred.  Scotts
was apprehended as he was leaving the apartment, at which point Williams was still talking
with Detective Nelson outside of the apartment building.  Thus, at the time of the offense, Williams
was making no attempt to consume the crack cocaine, even if she had intended to do so at some
point in the past.
		In addition, Scotts's contention that he was in possession of the crack cocaine in
order to prevent Williams from consuming it is inconsistent with the testimony of Williams and
Detective Nelson, who both indicated that Williams had called the police, not because she was angry
with Scotts for withholding the crack cocaine, but because Scotts had assaulted her. (1)  The jury was
free not to believe Scotts's version of events.  See King, 29 S.W.3d at 564 ("Given the discrepancies
between the evidence and appellant's statements, the jury reasonably could have found that appellant
was not credible.").
		Even viewing this evidence in a neutral light, a rational trier of fact could have found
beyond a reasonable doubt that there was no danger of imminent harm to justify Scotts's possession
of the crack cocaine.  See Roberts, 220 S.W.3d at 524; King, 29 S.W.3d at 562.  Accordingly, we
overrule Scotts's sole point of error.  Having overruled Scotts's point of error, we affirm the
judgment of conviction.


						__________________________________________
						G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed:   August 7, 2009
Do Not Publish
1.   Although Williams was a key witness for the defense, her testimony at trial was both
internally inconsistent and inconsistent with what she told Detective Nelson on the day of
the incident.
