Opinion
No. 05-09-00966-CR
Opinion Filed January 12, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F09-54763-LN.
Before Justices FITZGERALD, MURPHY, and FILLMORE.
MEMORANDUM OPINION
Leon Nigel Barrett appeals his conviction of unlawful possession of a firearm by a felon. See Tex. Penal Code Ann. § 46.04(a) (West 2003). Barrett argues the evidence is insufficient to support the jury's implied rejection of his defense of necessity. We affirm the trial court's judgment.
Background
This case involves a shootout at the J.J. Box store, during which a bystander received a fatal head wound from a stray bullet. Surveillance footage of the shooting, capturing various angles, showed Barrett entering the store with two other males. "High-fiving" the owner and talking with store employees, Barrett proceeded to the back of the store where he browsed and tried on items of clothing. While Barrett browsed, one of the men who entered with him walked toward the front of the store and approached another individual who had just arrived: Lonnie Johnson. Johnson addressed the man, drew a firearm, and chased him out of the store. As Johnson pursued the man, Barrett remained in the back of the store and retrieved a firearm from his waistband. When Johnson returned to J.J. Box without his weapon raised or in the "ready" position, Barrett approached him, pointing his firearm at Johnson. Johnson raised his weapon in response and shot at Barrett. Barrett faltered, attempted to retrieve something on the floor, and ran to another position while continuing to point his weapon at Johnson. Johnson chased him and continued to fire. Other patrons of J.J. Box scattered during the chase, one of whom sought cover under a rack of clothing. Johnson continued shooting as Barrett ran to the storage area in the rear of J.J. Box; Johnson ultimately abandoned the chase and ran from the store. The young man who sought cover under the clothing rack was shot during this confrontation. Barrett later left the store, walking past the wounded young man. Barrett was shot twice during his confrontation with Johnson: once in the hand and once in the leg. Barrett went to the hospital seeking medical treatment and told the hospital staff he was shot on Ewing Street. As Barrett was discharged from the hospital, the police asked Barrett to go to police headquarters to discuss the circumstances of his injuries. Barrett told the police they had his contact information and could reach him later. A detective later tried to convince Barrett to surrender, but to no avail. Instead, Barrett remained out of police custody and was arrested months later after a vehicle and foot chase with police. Johnson surrendered to the Dallas police and gave a television interview while detained, admitting he was involved in the altercation with Barrett and justifying his conduct by stating that Barrett stole a large sum of money from him. Testimony conflicted over whether Barrett allegedly stole $80,000 or $150,000 from Johnson. Barrett presented Johnson's television interview at trial, and other witnesses repeated rumors the money Barrett allegedly stole was related to a drug deal between Barrett and Johnson. Other testimony at trial described Johnson as a "serious drug dealer" who carried guns and would kill another person for money "in a heartbeat." Barrett's ex-girlfriend testified she was afraid of Johnson and did not want to testify because he "had a lot of resources." The same ex-girlfriend testified she may have said Barrett "might have been carrying if he felt threatened for his life" but later clarified she may have made an assumption Barrett could have been "carrying [a firearm] for his protection." Another witness testified Johnson told Barrett when he saw him, "you are going to die tonight." The State also presented evidence from lead detective Dewayne Thompson that, in his opinion, Barrett was an "active participant" in the "two-way battle" with Johnson because Barrett was "engaging" Johnson during their confrontation and was not in a defensive posture:But as long as I've been a police officer-and I was a captain in the Army and military police. I've been around guns most of my adult life. And when you look at this from a detective's standpoint, and it's clear that Mr. Johnson is firing a weapon at [Barrett], and it's clear that [Barrett] is engaging, you would be an idiot not to be able to see that. He's out and he has his hand out. He's aiming. He's concentrating. It's pretty clear. I don't think you have to be an expert to arrive at this conclusion. . . . . You can look at his eyes. You can look at his face. You can look at his hand. He's not down ducking like all the other people who were in the store. He's up and he is engaging.Thompson emphasized portions of the surveillance footage where Barrett advanced on Johnson and attempted to get a better position in relation to Johnson before Barrett retreated to the rear of the store. A store employee who interacted with Barrett before Johnson arrived testified Barrett did not appear to be shaking, sweating, or acting as though Barrett was "under the imminent fear of being attacked" before the confrontation began.
Standard
In two points of error, Barrett challenges the legal and factual sufficiency of the evidence. As a result of the Texas Court of Criminal Appeals decision in Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.), which overruled Clewis v. State and approved Jackson v. Virginia as the only standard for reviewing a sufficiency challenge, Barrett provided a supplemental brief arguing a single point of error. Under the Jackson v. Virginia standard, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks, 323 S.W.3d at 894-95. We are required to defer to the jury's credibility and weight determinations, because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326. Barrett does not challenge the sufficiency of the evidence to support his conviction for unlawful possession of a firearm by a felon; rather, he claims the State failed to disprove his necessity defense justifying the conduct in question. See Tex. Penal Code Ann. § 9.02 (West 2003) ("It is a defense to prosecution that the conduct in question is justified under this chapter."). Under the defense of necessity, conduct is justified if (1) the actor reasonably believed the conduct was 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. See Tex. Penal Code Ann. § 9.22. Because Barrett raised a defensive issue, we will conclude the evidence was sufficient only if we determine, based on a review of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime and against the defensive issue beyond a reasonable doubt. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). This does not require the State to introduce evidence disproving the defense; instead, it requires the State to prove its case beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991).Discussion
To determine whether the evidence was sufficient for the jury to reject Barrett's defense of necessity, we must resolve whether Barrett reasonably believed the conduct was immediately necessary to avoid imminent harm. See Tex. Penal Code Ann. § 9.22. Whether the accused's belief is reasonable is a question of fact and should be viewed from the accused's standpoint at the time he acted. See Fitzgerald v. State, 782 S.W.2d 876, 885 (Tex. Crim. App. 1990). "'Reasonable belief' means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor." Tex. Penal Code Ann. § 1.07(a)(42) (West Supp. 2010); Pennington v. State, 54 S.W.3d 852, 857 (Tex. App.-Fort Worth 2001, pet. ref'd). A defendant's sincere belief his conduct is immediately necessary to avoid imminent harm is unreasonable as a matter of law if the undisputed facts demonstrate a complete absence of "immediate necessity" or "imminent harm" as legally defined. Dewalt v. State, 307 S.W.3d 437, 454 (Tex. App.-Austin 2010, pet. ref'd). Specifically, the defense of necessity is statutorily defined to exempt conduct from conviction when harm is more than merely possible sometime in the future:"Imminent" means something that is impending, not pending; something that is on the point of happening, not about to happen. An "imminent harm" occurs when there is an emergency situation and it is "immediately necessary" to avoid that harm, when a split-second decision is required without time to consider the law.Schier v. State, 60 S.W.3d 340, 343 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd) (internal citations omitted). "Imminent" requires more than a generalized fear of harm, Brazelton v. State, 947 S.W.2d 644, 648 (Tex. App.-Fort Worth 1997, no pet.), as well as a present, rather than future, threat. See Garcia v. State, 972 S.W.2d 848, 849 (Tex. App.-Beaumont 1998, no pet.) (citing Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989)). Thus, "imminent harm" contemplates "an immediate, non-deliberative action made without hesitation or thought of the legal consequence." Dewalt, 307 S.W.3d at 454 (quoting Stefanoff v. State, 78 S.W.3d 496, 501 (Tex. App.-Austin 2002, pet. ref'd) (sub. op.)). Barrett was carrying a firearm before Johnson ever arrived at J.J. Box, and the surveillance footage showed Barrett drew his firearm when Johnson chased someone else from the store. The footage also showed Barrett pointing his gun at Johnson when he returned to J.J. Box, to which Johnson responded by raising his gun and firing. Barrett asserts testimony supports his argument he was afraid of Johnson and feared for his life should they ever meet; this kind of generalized fear, however, is insufficient. See Garcia, 972 S.W.2d at 849 (citing Johnson v. State, 650 S.W.2d 414, 416 (Tex. Crim. App. 1983)) (fear induced by one's presence in high-crime area not sufficient evidence of immediate necessity to justify unlawfully carrying handgun). There is no evidence Johnson initiated aggression towards Barrett and that Barrett made an emergency decision to grab a nearby firearm to defend himself. Instead, the evidence viewed in the light favorable to the verdict shows Barrett was armed prior to Johnson's arrival and remained at the store and pursued Johnson once Johnson returned. Without evidence of a "split-second decision," such conduct does not contemplate the kind of imminency required for the defense of necessity. See Washington v. State, 152 S.W.3d 209, 212 (Tex. App.-Amarillo 2004, no pet.). Moreover, Barrett's behavior prior to the shootout, such as "high-fiving" the store owner, chatting with store employees, and browsing clothing, supports the jury's rejection of his claim of necessity. See Martinico v. State, No. 05-98-00300-CR, 1999 WL 410361, at *4 (Tex. App.-Dallas June 22, 1999, pet. ref'd) (not designated for publication) (concluding trial court could have reasonably concluded appellant was not carrying gun out of necessity but as choice to arm herself during fight). As part of his defense, Barrett suggested the existence of a possible second shooter standing just outside the entrance to J.J. Box, who may have pointed a firearm toward the interior of the store and prevented Barrett from exiting during his confrontation with Johnson. Barrett also asserted the lack of cartridge cases from his gun at the scene refuted any testimony he was "engaging" Johnson. Yet, reviewing all the evidence in the light most favorable to the verdict, the surveillance footage in combination with Thompson's testimony indicate Barrett aimed his weapon at Johnson before Johnson responded, and Barrett continued to advance on Johnson before he realized he was not winning the confrontation. The failure to recover any casings from Barrett's gun does not necessarily refute Barrett's aggression displayed in the video. The presence of a possible second shooter also does not overcome the undisputed evidence Barrett was in possession of a gun before Johnson ever arrived at J.J. Box. Giving due deference to the jury's assessment of witness credibility and the evidence presented, we conclude sufficient evidence supports the jury's verdict. See Jackson, 443 U.S. at 319.