                             NUMBER 13-07-00209-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


LEEVELL NEWSON, JR.,                                                          Appellant,

                                            v.

THE STATE OF TEXAS,                                                            Appellee.


                    On appeal from the 377th District Court
                          of Victoria County, Texas.


                          MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Chief Justice Valdez

       A jury convicted appellant, Leevell Newson, Jr., of evading arrest with a motor

vehicle and assessed punishment, enhanced by multiple prior felony convictions, at twenty

years in prison and a $10,000 fine. See TEX . PENAL CODE ANN . § 38.04(a)-(b)(1) (Vernon

2003). In a single issue, appellant contends the trial court erred in overruling his request

for an instruction on the defense of necessity. See id. § 9.22. We affirm.
                                     I. BACKGROUND

       On October 18, 2006, Victoria Police Officer Jett McFalls (“Officer McFalls”)

observed appellant’s green Oldsmobile emerge from an Economy Inn in a “high-drug area.”

Officer McFalls followed appellant for three or four blocks to see if he “could get some kind

of traffic violation.” Appellant then made a turn without signaling, and Officer McFalls

activated his emergency lights. Appellant continued driving and eventually accelerated,

running two stop signs, hitting a curb, sending his car airborne, bouncing off another

vehicle, and crashing into a storage building.

       On December 14, 2006, a Victoria County grand jury indicted appellant for evading

arrest or detention with a vehicle. See id. § 38.04(a)-(b)(1). The indictment also included

several enhancement paragraphs, including four burglary convictions in 1981, one burglary

conviction in 1984, another burglary conviction in 1988, and a conviction in 1998 of

Delivery of a Controlled Substance. See id. § 12.42(a)(2) (noting penalties for repeat and

habitual felony offenders).

       At trial, appellant pleaded “Not Guilty,” admitted to evading Officer McFalls, and

raised the necessity defense. See id. § 9.22. Appellant testified that he did not pull over

because he needed to get the car home, which was two blocks away, because his fiancee

and two children needed to get to work and school, which could not occur if he were

arrested and the car were towed. He claimed that his fiancee would not have been able

to afford the towing fee.

       The trial court’s proposed jury charge included no instruction on the necessity

defense, appellant objected to the charge, but was overruled. The jury found appellant

guilty of evading arrest, and appellant stipulated to the enhancement allegations in the

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indictment. He was sentenced to an enhanced prison term of twenty years and a $10,000

fine. This appeal followed.

                                        II. NECESSITY

       In a single issue, appellant argues that the trial court erred in excluding from the jury

charge instructions on necessity. We disagree.

                       A. Standard of Review and Applicable Law

       “It is well settled 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 evidence.” Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). This

rule is designed to ensure that the jury, not the judge, will decide the relative credibility of

the evidence. Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991) (opinion on

rehearing). When evidence from any source raises a defensive issue, and the defendant

properly requests a jury charge on that issue, the trial court must submit the issue to the

jury. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Cr. App. 1993). However, when the

evidence fails to raise a defensive issue, the trial court commits no error in refusing a

requested instruction. Id. (citing Kunkle v. State, 771 S.W.2d 435, 444 (Tex. Crim. App.

1986)).

          Necessity is a statutory defense that exonerates a person’s otherwise illegal

conduct. Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999). Conduct is

justified by necessity if:

               (1)    the actor reasonably believes the conduct is necessary to
                      avoid imminent harm;

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              (2)    the desirability and urgency of avoiding the harm clearly
                     outweigh, according to ordinary standards of reasonableness,
                     the harm sought to be avoided 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 (Vernon 2003); Young, 991 S.W.2d at 838.

                                        B. Analysis

       The threshold issue is whether appellant reasonably believed his conduct was

necessary to avoid imminent harm. Maldonado v. State, 902 S.W.2d 708, 712 (Tex.

App.–El Paso 1995, no pet.). Appellant testified that it was necessary for him to evade the

police because: (1) he had a warrant out for his arrest; (2) he knew that once he stopped

his vehicle he would be arrested; (3) his car would be likely be impounded; and (4) he felt

the need to get the car home to his fiancee so as to avoid any financial harm she may

endure as a result of the car being impounded. It is undisputed that in evading the police

appellant sped directly past his home on the wrong side of the road, ran two stop signs,

jumped a curb causing his vehicle to “go airborne,” and crashed his car into a storage unit.

       It is well established that one who unlawfully avoids police detention simply cannot

claim that his criminal conduct is a necessary response to the legitimate police action that

his illicit flight spawns. See Ford v. State, 112 S.W.3d 788, 794 (Tex. App.–Houston [14th

Dist] 2003, no pet.); Maldonado, 902 S.W.2d at 712. One who provokes the difficulty, or

is responsible for having placed himself in the position from which he attempts to extricate

himself by committing a criminal offense, is not entitled to a charge authorizing his acquittal

of that offense based upon necessity. Ford, 112 S.W.2d at 794.

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       Here, the record shows that appellant was responsible for placing himself in the

position of being stopped for a traffic violation and being arrested for an outstanding

warrant. Moreover, appellant points to no evidence, other than Officer McFall’s legitimate

attempt to make a traffic stop, that may have forced him to believe that his own actions

were immediately necessary to avoid harm. Also, the fact that appellant’s vehicle may

have been towed or that an impoundment fee may have been assessed is much too

speculative and remote to be considered imminent. See Stefanoff v. State, 78 S.W.3d

496, 501 (Tex. App.–Austin 2002, pet. ref’d) (stating that imminent harm component

necessitates an immediate, non-deliberative action made without hesitation or thought of

legal consequence; a “split second decision”) (internal citations omitted).

       Because appellant had not shown evidence of imminent harm, the trial court did not

err in refusing to submit the defense of necessity to the jury. See Ford, 112 S.W.2d at 794;

Maldonado, 902 S.W.2d at 712. Appellant’s sole issue on appeal is overruled.

                                     III. CONCLUSION

       We affirm the trial court’s judgment.



                                                   ROGELIO VALDEZ
                                                   Chief Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 10th day of July, 2008.




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