                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00130-CR



           BENJAMIN WILLIAMS, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 202nd District Court
                 Bowie County, Texas
             Trial Court No. 16F0471-202




      Before Morriss, C.J., Burgess and Stevens, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                     MEMORANDUM OPINION
           At Benjamin Williams’ Bowie County jury trial for evading arrest or detention with a

vehicle, 1 Williams wanted jurors to hear evidence that the reason he did not immediately comply

with officers’ directions that Williams stop his vehicle was because, in the past, he had been

attacked and injured by other law enforcement officers and was, therefore, fearful of the officers

seeking to stop him on this occasion. The trial court excluded at least some of the explanatory

evidence Williams wanted aired.

           On the evening in question, five Texarkana, Texas, police officers responded to a report of

a disturbance in a residential neighborhood in Texarkana. The initial reports received by officers

and additional information collected at the scene caused them to focus on Williams and his white

sports utility vehicle (SUV). When officers first saw the Williams vehicle approaching them and

were told by bystanders that such vehicle was being driven by the individual who caused the

disturbance, officers began walking toward the vehicle and trying to get Williams to stop. As they

approached to approximately fifty feet from the vehicle, Williams backed the vehicle away, then

turned it around and drove away from the officers. Eventually, officers pursued Williams’ vehicle

for approximately three miles before Williams reached his residence and stopped. He was

handcuffed at that time and place.




1
    See TEX. PENAL CODE ANN. § 38.04 (West 2016).


                                                    2
        Williams appeals his conviction and life sentence 2 by asserting that it was preserved,

harmful error to exclude evidence that he was previously injured by police—information which,

Williams believes, could have given him a fair chance to establish his justification defense of

necessity. Erroneously excluding defense evidence is constitutional error if, but only if, the

excluded evidence is so vital that, without it, the defendant is effectively precluded from presenting

a viable defense. Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). That lies at the

heart of Williams’ argument on appeal.

        The State asserts that the trial court did not abuse its discretion in excluding the remote-in-

time evidence. Because we agree with the State that there was no abuse of discretion in excluding

any evidence for which error was preserved, we affirm the trial court’s judgment.

        We review for an abuse of discretion a trial court’s decision to admit or exclude evidence.

Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Gittens v. State, 560 S.W.3d 725,

731–32 (Tex. App.—San Antonio 2018, no pet.)); Dewalt v. State, 307 S.W.3d 437, 451 (Tex.

App.—Austin 2010, pet. ref’d). This standard applies even when the accused complains, as

Williams does here, that the exclusion of evidence impaired his constitutional right to a meaningful

opportunity to present a defense. See Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001).

There is no abuse of discretion unless the trial court’s ruling lies “outside the zone of reasonable

disagreement.” Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007); Prible v. State,

175 S.W.3d 724, 731 (Tex. Crim. App. 2005); Dewalt, 307 S.W.3d at 451. If the ruling on



2
Williams’ sentence was assessed after the jury heard evidence of numerous prior convictions and bad behavior by
Williams. The sentence is not made the subject of any point on appeal.
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evidence is correct on any applicable theory of law, it will not be overturned, regardless of the trial

court’s expressed reasoning. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).

       The defense of necessity may justify otherwise criminal behavior if the actor reasonably

believes the charged conduct is immediately necessary to avoid imminent harm, the desirability

and urgency of avoiding the harm clearly outweighs, according to ordinary standards of

reasonableness, the harm sought to be prevented, and no legislative purpose exists to exclude the

defense. TEX. PENAL CODE ANN. § 9.22 (West 2011).

       But a generalized fear is insufficient; a necessity defense requires there to be, among other

proof, evidence of a specific imminent harm on the occasion in question. Stefanoff v. State, 78

S.W.3d 496, 499–500 (Tex. App.—Austin 2002, pet. ref’d) (evidentiary sufficiency on necessity

defense). While the disputed items of evidence, admitted or otherwise, may very well explain why

Williams was generally fearful of police, Williams’ generalized fear of police, without more, does

not support the defense of necessity. See TEX. PENAL CODE ANN. § 9.22(1) (West 2011); Brazelton

v. State, 947 S.W.2d 644, 648 (Tex. App.—Fort Worth 1997, no pet.). Even if a fear of harm is

sincerely held, that fear is unreasonable as a matter of law if there is no evidence of immediacy or

imminence of the harm, that is, no proof of a contemporaneous threat. See Washington v. State,

152 S.W.3d 209, 212 (Tex. App.—Amarillo 2004, no pet.) (charge on necessity not warranted

without evidence of immediacy of danger); Arnwine v. State, 20 S.W.3d 155, 159 (Tex. App.—

Texarkana 2000, no pet.) (same). Neither the evidence in this record nor the excluded evidence

points to any immediate or direct threat to Williams’ safety.




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        Williams attempted to testify to a number of different prior altercations with police causing

him to fear other police officers on the occasion in question. Some of that testimony was admitted;

some was excluded.

        The trial court did not allow Williams to place before the jury either (1) any details about

his specific injuries at the hands of police as a result of one or more prior altercations between

Williams and police or (2) information that he had to go to a hospital as a result. The trial court

ruled that the desired added detail was not relevant and, thus, not admissible. While there was no

formal offer of proof, it is at least arguable that, from the context, it is apparent that Williams

wanted to testify, and would have testified, that police had attacked him on various prior occasions,

injuring him enough to require at least one hospital trip. Because error may have been preserved

with respect to the exclusion of this evidence, 3 we will discuss that evidence below.

        Williams was also not allowed to testify regarding a prior event that happened at a place of

business owned by a Bubba Green, but there was neither an offer of proof nor any discussion on

the record that would provide the essence of the desired evidence. So, as to that evidence, nothing

has been preserved for our review.




3
 Before any error in the exclusion of evidence is preserved for our review, Williams must have made an offer of proof
or a bill of exceptions or must demonstrate that the substance of the excluded evidence was apparent from the context
within which questions were asked. See TEX. R. EVID. 103; Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App.
1999). Here, though there was no offer of proof or bill of exceptions, from the context of the questions posed by
Williams and his argument to the trial court, the substance of the excluded evidence is apparent, that, on previous
occasions, Williams had had encounters with police in which police attacked him and caused him one or more injuries
requiring medical diagnosis or treatment.

                                                         5
         The parties and the trial court agreed at trial that at least some of what Williams wanted to

testify to was already in the record via his earlier testimony. 4 To the extent the evidence of prior

altercations was before the jury, there was obviously no exclusion error.

         From this record, it is apparent that, in Williams’ attempt to justify his refusal to stop for

police, his desired but excluded evidence was solely about prior altercations Williams had had

with police. The trial court ultimately ruled that any specific evidence regarding Williams’

previous encounters with police was irrelevant and would be excluded.

         As to the excluded Williams evidence that would have provided details about his past

injuries at the hands of police and medical treatment therefor, we assume, for the purpose of

argument, that any error in excluding that evidence was preserved.                          Williams’ problem in

connection with this evidence is that it was all remote in time from the night of his offense and did

not demonstrate any immediate threat that had been posed to Williams at, or shortly before, the

time he decided to drive away from officers. The trial court was, therefore, within its discretion

to exclude this proposed detail evidence. See Baines v. State, 418 S.W.3d 663, 669–71 (Tex.

App.—Texarkana 2010, pet. ref’d) (events in past insufficient to establish immediate necessity to

evade arrest); Dewalt, 307 S.W.3d at 453–56 (evidence of past events, without immediacy,

excludable); see also Brazelton, 947 S.W.2d at 648 (possible loss of custody not evidence of

imminent safety threat); Cyr v. State, 887 S.W.2d 203, 207 (Tex. App.—Dallas 1994, no pet.)

(prior unlawful abortions not evidence of imminent unlawful abortions).


4
 At one point, the trial court instructed the jury to disregard Williams’ testimony that he feared the police because the
police broke his nose on a prior occasion. At a different point, Williams was able to testify without objection that he
failed to stop at the location where the police began their efforts to stop him because he did not want to get pepper
sprayed or “tazed” or to have his nose broken by police, as he said happened on prior occasions.
                                                           6
        Also, the case for excluding the remote evidence was strengthened because, the remote

evidence’s minimal, or complete lack of, relevance was accompanied by a significant potential to

have misled the jury, inviting a decision on an improper basis, Williams’ general fear of law

enforcement. See TEX. R. EVID. 403; Distefano v. State, 532 S.W.3d 25, 31 (Tex. App.—Houston

[14th Dist.] 2016, pet. ref’d); Belcher v. State, 474 S.W.3d 840, 847–48 (Tex. App.—Tyler 2015,

no pet.).

        Because the trial court was within its discretion to exclude the evidence on which any error

was preserved, and because error was not preserved on the other excluded, but complained of,

evidence, we affirm the trial court’s judgment.




                                              Josh R. Morriss, III
                                              Chief Justice


Date Submitted:        February 26, 2019
Date Decided:          March 21, 2019

Do Not Publish




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