Opinion
05-22-00184-CR 05-22-00185-CR
03-30-2023
GABRIEL COBARRUBIAS, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 363rd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F-2100479-W & F-2100393-W
Before Justices Reichek, Nowell, and Garcia
MEMORANDUM OPINION
ERIN A. NOWELL JUSTICE.
A jury convicted Gabriel Cobarrubias of aggravated assault of a public servant (appellate cause number 05-22-00184-CR) and evading arrest or detention with a vehicle (appellate cause number 05-22-00185-CR) and sentenced him to terms of incarceration for the offenses. On appeal, appellant argues the trial court improperly admitted telephone calls made from the jail after his arrest, committed fundamental error by permitting a police officer to testify concerning his guilt, and made several jury charge errors. In a single cross-issue, the State requests we modify the judgments. We modify the trial court's judgments and affirm as modified.
Factual Background
At approximately 9:40 p.m. on June 28, 2020, the police received multiple reports that a man was holding a gun in each hand and shooting the guns into the air in the parking lot of a convenience store. The callers reported he drove a red Infinity. Several officers were dispatched to the location.
When Lieutenant William Green of the Garland Police Department arrived at the convenience store, he saw Officer Hanks pointing a rifle at the store's front door and using his vehicle as a cover. Hanks told Green he saw a man matching the suspect's description inside the store; a red Infinity was in the parking lot. The officers were wearing police uniforms, and their vehicles were clearly marked.
Officer Hanks's first name does not appear in the record.
Appellant, looking agitated, walked from the convenience store to his car, which was turned on. Police told appellant to show his hands and then to place his hands on the Infinity. Appellant did not comply. Instead, appellant got into his vehicle, and Green attempted to pull him back out. Green stood in the space behind the open car door and testified "we were in a hug" as Green leaned into the car to try to remove appellant from the vehicle. In response, appellant braced himself in the car, shifted the car into reverse, and accelerated quickly. Although Green released his hold on appellant when appellant began driving, he testified "the door took me with the vehicle. So we're going - - I'm sliding down with the open door as he's accelerating." Green attempted to drop to the ground and roll away from the car, but appellant turned the wheel. The vehicle ran over Green's right leg, which caused pain and extensive injuries. Green was transported to the hospital by ambulance. Green testified about the resulting injuries. The jury saw videos from Green's encounter with appellant at the convenience store, including footage from Green's body camera.
Appellant drove the Infinity away from the convenience store, and a police helicopter followed him. Officer Michael Plaia, a Tactical Flight Officer with the Garland Police Department, was in the helicopter. To evade the police, appellant drove through residential neighborhoods at "excessive speeds," and sometimes turned off the vehicle's lights. Plaia explained that turning off the vehicle's lights is an escape tactic: "We see that all the time when - - when suspects are evading from the police. It's a tactic they use so obviously they're not very visible and that the police can't see them and they can, you know, hopefully get away." Eventually appellant exited his vehicle and began running. He threw a pistol into the backyard of a residence as he ran. Appellant then hid under a tree before crawling into a culvert. Officers brought a canine unit to the scene and extracted appellant from the culvert. The jury saw video from the helicopter.
After he was arrested and while he was held in the Garland jail, appellant spoke on the phone with his girlfriend; those phone calls were recorded and portions of them were played for the jury. During one call, they had the following exchange:
Portions of the conversation were in Spanish. The jury was provided with a transcript of relevant portions of the call, which included translations as necessary; the transcript was admitted as State's Exhibit 101.
Appellant: If it wasn't for the fuckin' helicopter, I would've gotten away. I didn't have no cops behind me. Because of the fuckin' helicopter, it wouldn't let me leave. I was gone. I - I had already taken off from the cops, but you know, but just the fuckin' helicopter. Then I got in the bushes and I laid down in the bushes and the fucker found me there in the bushes. Man, shit you should've seen what I - what I went through. That shit's fucking crazy man. And then once I got out of the ditch, 'cause I was real deep inside, I got in the ditch with water
. . .
Girlfriend: Damn, you're - - you're, uh, you're Facebook famous.
Appellant: Huh?
Girlfriend: You're famous
Appellant: Why?
Girlfriend: 'Cause, uh, they posted a video on you. 'Cause you ran over the cop. And you had, uh, 152,000
. . .
Girlfriend: 152,000 views, likes
. . .
Appellant: What do you mean?
Girlfriend: Like, you have a lot of, like, likes. Like, your video is popular.
Appellant: [laughs]
Girlfriend: [laughs]
. . .
Girlfriend: [laughs] Your mom said you should've just killed the mother fucker
Appellant: That nig- that nigga had went to the hospital too
Girlfriend: The what?
Appellant: The officer -
Girlfriend: Yeah, and, like, you can see the video clearly, when you run him over.
The following conversation occurred during a different phone call:
A transcript was admitted as State's Exhibit 102.
Appellant: And that's why when I reversed, I got down right away, you know. 'Cause I thought he was gonna start shooting. And I reversed.
. . .
Appellant: . . . If it weren't - if it wasn't for the fuckin' helicopter I would have taken off. . .
. . .
Appellant: Hell yeah. I took off, I reversed, . . .
. . .
Appellant: Hell yeah. These fuckin' niggas fucked me up bad. All over. Fuckin' assholes [unintelligible] I should've run over all them niggas.
Girlfriend: [laughs] That's what everybody was saying, you should've killed the mother fucker
Appellant: Shit
Girlfriend: Mm-hmm. And then you hit the - the dog, Diesel. His name is Diesel. [laughs]
Law & Analysis
A. Admission of Jail Calls
In his first issue in both appellate cause numbers, appellant argues the trial court erred by admitting State's Exhibits 89 and 101 over his objections. State's Exhibit 89 is a recording from phone calls between appellant and his girlfriend while he was in jail, and Exhibit 101 provides a written transcript of portions of the conversation. On appeal, appellant specifically objects to his girlfriend's statement that "[y]our mom said you should've just killed the mother fucker [sic]," meaning Officer Green.
Although appellant does not specifically argue the trial court erred by admitting the substantially similar statement made by appellant's girlfriend as reflected in State's Exhibit 102, in the interest of justice, we will consider appellant's arguments as applied to State's Exhibit 102 as well.
Appellant contends the statement is hearsay and was prejudicial and admission of the statement violated his rights under the Confrontation Clause. In response, the State argues the statement is not hearsay because it was not offered for the truth of the matter asserted, the statement was not substantially more prejudicial than probative, and admission of the statement did not violate appellant's rights under the Confrontation Clause because the contents of the call was not testimonial. Alternatively, the State asserts, any error was not harmful.
1. Harmless Error
As to appellant's arguments that the trial court erred by admitting the statement because it was hearsay and was more prejudicial than probative, we review a trial court's decision to admit or exclude evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). A trial judge abuses his discretion when his decision falls outside the zone of reasonable disagreement. Id. at 83.
The erroneous admission of evidence generally constitutes non-constitutional error, subject to a harm analysis that requires reversal only if the error affected the substantial rights of the accused. Tex.R.App.P. 44.2(b); Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018). An error is reversible only when it has a substantial and injurious effect or influence in determining the jury's verdict. Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008). We should not overturn the conviction if we have fair assurance from an examination of the record as a whole that the error did not influence the jury or had but slight effect. Id. When making this determination, we consider: (1) the character of the alleged error and how it might be considered in connection with other evidence; (2) the nature of the evidence supporting the verdict; (3) the existence and degree of additional evidence indicating guilt; and (4) whether the State emphasized the complained-of error. Gonzalez, 544 S.W.3d at 373.
If we assume for purposes of this discussion that the complained-of statement was hearsay and it was more prejudicial than probative and, accordingly, the trial court erred by admitting it, we conclude the errors were not harmful. The evidence in the record clearly supports appellant's guilt. Officer Green testified he was wearing his police uniform and trying to physically remove appellant from a vehicle when appellant placed his vehicle in reverse and drove over Green's leg; appellant then fled from the convenience store. Green testified about his extensive injuries resulting from the incident. The jury saw video from Green's body camera and other sources that corroborated Green's testimony. Officer Plaia testified about the police helicopter following appellant and what he saw from the helicopter. The jury also saw footage from the helicopter, which was consistent with Plaia's testimony. Appellant then admitted running over Green and fleeing from the scene in his phone call with his girlfriend.
Having reviewed the entire record, we have fair assurances that any error in admitting the portion of the phone call about which appellant complains on appeal either did not influence the jury or had only a slight effect. See Gonzalez, 544 S.W.3d at 373. Therefore, we disregard any error. See Tex. R. App. P. 44.2(b).
2. Confrontation Clause
The Confrontation Clause of the Sixth Amendment of the United States Constitution provides that "'[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" U.S. Const. Amend. VI. In accordance with this right, "testimonial" out-of-court statements offered against the accused are inadmissible unless the prosecution can show that the out-of-court declarant is presently unavailable to testify and the accused had a prior opportunity to cross-examine him. See Langham v. State, 305 S.W.3d 568, 575-76 (Tex. Crim. App. 2010). Although we defer to a trial court's determination of historical facts and credibility, we review de novo whether a statement is testimonial. Id.
"While the exact contours of what is testimonial continue to be defined by the courts, such statements are formal and similar to trial testimony." Barnum v. State, No. 05-21-00275-CR, 2022 WL 2763353, at *6 (Tex. App.-Dallas July 15, 2022, pet. ref'd) (mem. op., not designated for publication) (quoting Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim. App. 2013)). Generally, a hearsay statement is testimonial when the surrounding circumstances objectively indicate that the statement was procured with the primary purpose of establishing or proving past events potentially relevant to later criminal prosecution. Id. (citing De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008)). At a minimum, testimonial statements include (1) ex parte in-court testimony or its functional equivalent, such as affidavit testimony, custodial examinations, prior testimony that the accused was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; (2) extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; and (3) statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Id. (citing Langham, 305 S.W.3d at 576). "[T]he most important instances in which the Clause restricts the introduction of out-of-court statements are those in which state actors are involved in a formal, out-of-court interrogation of a witness to obtain evidence for trial." Id. (quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011)). When assessing a statement's primary purpose, we consider "all of the relevant circumstances," often including the timing and setting of the challenged statement. Id. (internal citations omitted).
When a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony, the admissibility of the statement is the concern of state and federal rules of evidence and not the Confrontation Clause. Id. at *7 (citing Bryant, 562 U.S. at 358-59). Thus, a person's informal statements to his friends are nontestimonial: "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id. (quoting Crawford v. Washington, 541 U.S. 36, 51 (2004)).
Appellant's girlfriend's statement "fall[s] into the category of casual remarks to acquaintances." See id. The challenged statement was made during a conversation between two people in a dating relationship, not during a conversation between appellant and a state agent. See id. (citing Ohio v. Clark, 576 U.S. 237, 249 (2015) ("Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers.")). The conversation took place over the phone while appellant was incarcerated, but it was not conducted "in a stationhouse, a courtroom, or any other sort of 'formal and structured setting that would lend itself to being considered testimonial.'" Id. (quoting Crawford v. State, 595 S.W.3d 792, 803 (Tex. App.-San Antonio 2019, pet. ref'd)). The nature of the conversation between appellant and his girlfriend suggested familiarity, and they did not display "the sort of formality that is the hallmark of a testimonial exchange." Id. There was also no evidence appellant's girlfriend was acting on behalf of the State when appellant's mother disclosed to her the fact that she thought appellant should have killed the officer. See id. Based on our thorough review of the record, we conclude the complained-of statement was not testimonial and, therefore, admission of the statement did not offend the Constitution.
We overrule appellant's first issue raised in each cause number.
B. Officer's Testimony
In his second issue in appellate cause number 05-22-00184-CR, appellant argues the trial court committed fundamental error by permitting Robert Duncan to testify appellant was guilty of aggravated assault.
Robert Duncan, a detective with the Garland Police Department, reviewed appellant's phone calls from the Garland jail. He testified at trial:
Q. And based on that [review of phone calls], is there any question in your mind that the Defendant intended or knew or he was reckless in his behavior in driving that vehicle and striking Lieutenant Green and driving over his leg?
A. No. I believe he knew exactly what he was doing, according to those phone calls. He actually laughed about it several times in the phone calls.
Q. And based on all of that review, including the jail calls, you believe that the charges that you filed were appropriate?
A. Yes, ma'am, I do.
Appellant did not object to this testimony to preserve error. See Tex.R.App.P. 33.1. Appellant contends he was not required to object to preserve his complaint for appellant review because he suffered a "fundamental error." We disagree.
"All but the most fundamental rights are thought to be forfeited if not insisted upon by the party to whom they belong." Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). In Marin, the Court of Criminal Appeals set out three types of rules for error preservation: (1) absolute systemic requirements and prohibitions (structural error), (2) rights that must be implemented unless expressly waived (waivable-only rights), and (3) rights that are implemented upon request. 851 S.W.2d at 279-80; see also Herrera v. State, 599 S.W.3d 64, 67 (Tex. App.-Dallas 2020, no pet.) (listing same). Systemic or absolute requirements include personal jurisdiction, subject-matter jurisdiction, a penal statute's compliance with the separation of powers section of the state constitution, a constitutional requirement that a district court conduct its proceedings at the county seat, a constitutional prohibition against ex post facto laws, and certain constitutional restraints on the comments of a trial judge. Herrera, 599 S.W.3d at 67 (citing Saldano v. State, 70 S.W.3d 873, 888-89 (Tex. Crim. App. 2002)). Waivable-only rights include such rights as the right to assistance of counsel at trial, the right to trial by jury, and the right for appointed counsel to have ten days of trial preparation. Id. (citing Saldano, 70 S.W.3d at 888; Aldrich v. State, 104 S.W.3d 890, 895-96 (Tex. Crim. App. 2003)).
Neither of the two fundamental error categories includes the admission or exclusion of evidence. As stated by the Texas Court of Criminal Appeals in Saldano: "We have consistently held that the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence. This is true even though the error may concern a constitutional right of the defendant." Id. (footnotes omitted). Appellant was required to object to Duncan's testimony to preserve any error. Because he did not do so, he has not preserved his complaint for review. We overrule appellant's second issue in appellate cause number 05-22-0184-CR.
C. Jury Charge
Appellant raises several jury charge complaints. A jury-charge-claim analysis involves two steps. First, we determine whether the charge is erroneous. If it is, then we must decide whether the appellant was harmed by the erroneous charge. Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013); see Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). Where, as here, the defendant timely objected to the alleged errors, the record need only show "some harm" to obtain relief. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g).
1. Lesser-Included Offense
In his second issue in appellate cause number 05-22-00185-CR, appellant argues the trial court erred by denying his request at the charge conference for a jury instruction on the "lesser-included offense of fleeing." On appeal, appellant argues "[f]leeing is clearly a lesser included offense of evading by vehicle. Both are defined in § 38.04 of the Penal Code." In response, the State argues appellant's complaint in the trial court does not comport with his complaint on appeal and is not preserved for our review.
Texas Penal Code section 38.04 sets forth the offense of evading arrest or detention; appellant was convicted of violating this statute. See Tex. Penal Code Ann. § 38.04. For the offense of evading arrest, the State must prove the defendant "intentionally [fled] from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him." Id. § 38.04(a). In contrast, the offense of fleeing is set forth in Texas Transportation Code section 545.421, which states "[a] person commits an offense if the person operates a motor vehicle and willfully fails or refuses to bring the vehicle to a stop or flees, or attempts to elude, a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop." Tex. Transp. Code Ann. § 545.421.
We agree with the State that appellant's complaint on appeal does not comport with his argument at trial. At trial, appellant asked for an instruction on "fleeing," which is an offense in the Texas Transportation Code. On appeal, he argues he was entitled to a lesser-included offense instruction on misdemeanor evading arrest or detention by foot pursuant to section 38.04 of the penal code. "[I]f an appellant's argument on appeal regarding a defensive issue or a lesser-included offense does not comport with his objection or request at trial, his complaint is not preserved for review." Settles v. State, No. 05-14-00382-CR, 2015 WL 3522838, at *5 (Tex. App.-Dallas June 3, 2015, pet. ref'd) (mem. op., not designated for publication) (citing Penry v. State, 903 S.W.2d 715, 753 (Tex.Crim.App.1995); Alcoser v. State, 256 S.W.3d 398, 400 (Tex. App.-San Antonio 2008, no pet.)). As a result, appellant's argument is not preserved for appellate review.
2. Self-Defense Instruction in Evading Arrest Case
In his third issue in appellate cause number 05-22-00185-CR, appellant argues the trial court erred by denying his request for a self-defense instruction in the evading arrest case; the trial court did charge the jury on self-defense in the aggravated assault case. Appellant argues there is some evidence to support his request for a self-defense instruction in the evading arrest case because the officers approached him with weapons pointed at him when he exited the convenience store even though he contends he had not fired a weapon before the police arrived. In response, the State argues appellant was not entitled to a self-defense instruction because the evidence in the case failed to raise self-defense.
The trial court must instruct the jury on statutory defenses, affirmative defenses, and justifications whenever they are raised by the evidence in the case. Maciel v. State, 631 S.W.3d 720, 722 (Tex. Crim. App. 2021). "A defendant is entitled to an instruction on every defensive issue raised by the evidence, regardless of whether the evidence is strong, feeble, unimpeached, or contradicted, and even when the trial court thinks the testimony is not worthy of belief." Id. When reviewing a trial court's ruling denying a requested defensive instruction, we view the evidence in the light most favorable to the defendant's requested instruction. See id.
A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect against the other's use or attempted use of unlawful force. Id. § 9.31(a). "A defendant is entitled to an instruction on the law of self-defense if there is some evidence that he intended to use force against another and he did use force, but he did so only because he reasonably believed it was necessary to prevent the other's use of unlawful force." Ex parte Nailor, 149 S.W.3d 125, 132 (Tex. Crim. App. 2004).
In a claim of self-defense that would justify a defendant's use of force, the defendant bears the burden to produce evidence supporting the defense, while the State bears the burden of persuasion to disprove the raised issues. Taylor v. State, No. 05-20-00017-CR, 2022 WL 17335689, at *6 (Tex. App.-Dallas Nov. 30, 2022, no pet.) (mem. op., not designated for publication) (citing Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018); Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991)). The defendant's burden of production requires him to adduce some evidence that would support a rational finding in his favor on the defensive issues. Id. (citing Braughton, 569 S.W.3d at 608; Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013)).
Self-defense is a confession-and-avoidance defense that requires the defendant to admit to his otherwise illegal conduct. Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020). However, "evidence of self-defense need not come from the defendant. It can be raised by other witnesses' testimony about the defendant's acts and words at the time of the offense." Lozano v. State, 636 S.W.3d 25, 33 (Tex. Crim. App. 2021).
We agree with the State that self-defense was not raised by the evidence in the evading arrest case. The use of force against another is not justified to resist an arrest or search that the actor knows is being made by a peace officer even though the arrest or search is unlawful unless the resistance is justified under section 9.31(c). Id. § 9.31(b)(2). Subsection (c) states:
The use of force to resist an arrest or search is justified:
(1) if, before the actor offers any resistance, the peace officer . . . uses or attempts to use greater force than necessary to make the arrest or search; and
(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's . . . use or attempted use of greater force than necessary.Id. § 9.31(c). The record in this case does not show that either officer was using or attempting to use greater force than necessary to make the arrest or search. Rather, the evidence shows several 911 calls were made about a man shooting two guns into the air outside of the convenience store; the callers provided a physical description of the man and his car. The police responded and identified a man and his car that matched the descriptions provided by the 911 callers. Viewing this evidence in the light most favorable to appellant, the trial court could have determined there is no evidence showing the officers used greater force than necessary to make the arrest or execute a search, and we conclude the trial court did not abuse its discretion by refusing appellant's request for a self-defense instruction in the evading arrest case. We overrule appellant's third issue in appellate cause number 05-22-00185-CR.
3. Self-Defense Instruction in Aggravated Assault Case
In his fourth issue in cause number 05-22-00184-CR, appellant argues the trial court erred by failing to grant his request to include Officer Hanks in the self-defense jury instruction; Officer Green was included in the self-defense instruction. In response, the State argues appellant was not entitled to a self-defense instruction as to Officer Hanks in the aggravated assault case because the defense was not raised by the evidence.
After a thorough review of the record, we do not find any evidence showing appellant used force against Hanks, and appellant does not cite to any in his brief. Rather, the evidence shows appellant used force against Green. Because there is no evidence appellant intended to use force against Hanks and then actually "did use force," we conclude the defense was not raised by the evidence and appellant was not entitled to a self-defense instruction as to Officer Hanks. Accordingly, the trial court did not abuse its discretion by denying his requested instruction. We overrule appellant's fourth issue in appellate cause number 05-22-00184-CR.
4. Defense of Necessity
In his third issue in appellate cause number 05-22-00184-CR and in his fourth issue in appellate cause number 05-22-00185-CR, appellant argues the trial court erred by denying his requests to include the defense of necessity. In response, the State argues the trial court did not err because the evidence did not raise the defense.
Texas Penal Code section 9.22 provides in relevant part that conduct that is otherwise criminal "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." Tex. Penal Code Ann. § 9.22. Like self defense, necessity is a confession-and-avoidance defense requiring the defendant to admit to his otherwise illegal conduct. Maciel v. State, 631 S.W.3d 720, 723 (Tex. Crim. App. 2021).
Appellant argues he was entitled to the defense of necessity because his defense at trial "was not a denial of the acts but an attempt to justify the acts because he was afraid he was going to be shot." In support, appellant relies on statements he made to his girlfriend while he was in jail:
I took a fuckin' big ass risk, man. They could've shot me, man.
. . .
I know. And that's why when I reversed, I got down right away, you know. 'Cause I thought he was gonna start shooting. And I reversed.
Appellant's conversation with his girlfriend does not show he reasonably believed either assaulting Green or evading arrest was immediately necessary to avoid imminent harm. Rather, viewing the evidence in the light most favorable to him, his statements indicate he believed it was immediately necessary to "[get] down right away." His statements do not indicate that he had a sincere belief that his conduct of assaulting an officer or evading arrest was imminently necessary to avoid immediate harm. Appellant does not point us to other evidence in the record that would support his request for the defense.
Viewing the evidence in the appropriate light, we cannot say that the trial court abused its discretion by refusing to instruct the jury on necessity. We overrule appellant's third issue in appellate cause number 05-22-00184-CR and fourth issue in appellate cause number 05-22-00185-CR.
D. Modification of Judgments
The State requests the Court modify the judgments to correctly reflect appellant's pleas to, and the trial court's findings on, the enhancement paragraphs. Both indictments alleged two prior convictions as enhancements. Appellant pleaded true to the enhancement paragraphs as alleged in the indictments, and the trial court instructed the jury to find them true. However, the judgments reflect "N/A" for the pleas and findings on the enhancement paragraphs.
The State also requests the Court modify the judgments to correctly reflect the jury's findings of a deadly weapon. The State argues the jury made a deadly weapon finding in the evading arrest case and returned a verdict of guilty "as charged in the indictment" in the aggravated assault case. However, the judgments list "N/A" as the finding for deadly weapon.
We are authorized to reform a judgment to make the record speak the truth when we have the necessary information to do so. Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Estrada v. State, 334 S.W.3d 57, 63 (Tex. App.-Dallas 2009, no pet.) ("This Court has the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information to do so."); Tex.R.App.P. 43.2(b).
The record supports the State's requested modifications. Accordingly, in appellate cause number 05-22-00184-CR (aggravated assault case), we modify the judgment to delete "N/A" under the headings "1st Enhancement Paragraph," "Finding on 1st Enhancement Paragraph," "2nd Enhancement Paragraph," and "Finding on 2nd Enhancement Paragraph" and replace each "N/A" with "True." We also modify the judgment in appellate cause number 05-22-00184-CR to delete "N/A" under the heading "Findings on Deadly Weapon" and replace with "YES, A MOTOR VEHICLE."
Accordingly, in appellate cause number 05-22-00185-CR (evading arrest case), we modify the judgment to delete "N/A" under the headings "1st Enhancement Paragraph," "Finding on 1st Enhancement Paragraph," "2nd Enhancement Paragraph," and "Finding on 2nd Enhancement Paragraph" and replace each "N/A" with "True." We also modify the judgment in appellate cause number 05-22-00185-CR to delete "N/A" under the heading "Findings on Deadly Weapon" and replace with "YES, A MOTOR VEHICLE."
Conclusion
We modify the trial court's judgments to show appellant pleaded true to two enhancement paragraphs in each case, the jury found those enhancement paragraphs to be true in each case, and the jury made a deadly weapon finding in each case. As modified, we affirm the trial court's judgments.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows: Under the heading "1st Enhancement Paragraph," we DELETE the letters N/A and ADD the word "True."
Under the heading "Finding on 1st Enhancement Paragraph," we DELETE the letters N/A and ADD the word "True."
Under the heading "2nd Enhancement Paragraph," we DELETE the letters N/A and ADD the word "True."
Under the heading "Finding on 2nd Enhancement Paragraph," we DELETE the letters N/A and ADD the word "True."
Under the heading "Findings on Deadly Weapon," we DELETE the letters N/A and ADD the words "YES, A MOTOR VEHICLE."
As REFORMED, the judgment is AFFIRMED.
Judgment entered.