Summary
finding the trial court did not err in failing to submit a DWI necessity instruction because appellant could have: "and certainly should have asked for someone else to drive her"; "contacted the officers directly by telephone and discussed the matter"; "walk[ed] from her location"; and "contacted the police by telephone and allowed them to drive to her location"
Summary of this case from Maciel v. StateOpinion
No. 06-06-00014-CR
Submitted: June 13, 2006.
Decided: June 20, 2006. DO NOT PUBLISH.
On Appeal from the County Court at Law, Harrison County, Texas, Trial Court No. 2005-0763.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
A jury found Candy Sirmans guilty of misdemeanor driving while intoxicated (DWI) and assessed her punishment at sixty days in jail probated for a period of two years. See Tex. Pen. Code Ann. § 49.04 (Vernon 2003). On appeal, Sirmans contends the trial court erred by overruling her requested jury instruction on the defense of necessity. We overrule this issue and affirm the trial court's judgment. At trial, Sirmans admitted to driving after having consumed alcohol, but attempted to argue that her conduct was necessary because her sister-in-law had received a telephone call from someone asking Sirmans and her sister-in-law to come to a specific place to meet with law enforcement officials. Apparently, Sirmans believed these law enforcement officials needed to talk to Sirmans and her sister-in-law. Sirmans also testified she drove to the location "[b]ecause [she] was afraid if [she] didn't . . . that [she] would be in trouble." She specified she was afraid the officers might issue a warrant for her arrest if she did not go to their location. Sirmans requested the trial court instruct the jury on the defense of necessity. Section 9.22 of the Texas Penal Code outlines the defense of necessity and requires the actor to reasonably believe his or her conduct is "immediately necessary to avoid imminent harm. . . ." Tex. Pen. Code Ann. § 9.22 (Vernon 2003). That statute further requires the desirability and urgency of avoiding the harm to "clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct. . . ." Id. 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. When the evidence fails, however, to raise a defensive issue, the trial court commits no error in refusing a requested instruction. Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App. 1993). Sirmans' trial testimony neither remotely suggests, nor could a jury properly conclude, that she had a reasonable belief that violating Texas' law against driving while intoxicated was immediately necessary to avoid any imminent harm. The term "imminent" means "near at hand; impending; threatening." Webster's New Dictionary 274 (Concise ed. 1990). The potential harm — the issuance of an arrest warrant — cited by Sirmans to support her requested jury instruction would have required a significant amount of time for processing and approval by a neutral magistrate before coming to fruition. See Tex. Code Crim. Proc. Ann. arts. 1.06, 2.10, 7.01, 15.01, 15.02, 15.03 (Vernon 2005). Such harm, if a lawfully issued arrest warrant can properly be viewed as harmful within the context of societal norms, was clearly not "near at hand." Nor do we believe that the conduct of endangering others who might be simultaneously traversing the roadways with one who is driving after "splitting a six-pack" with her sister-in-law could ever be more desirable than possibly having a warrant issued for one's arrest in the remote future. See, e.g., Jagaroo v. State, 180 S.W.3d 793 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd) (deadly consequences of DWI; blood alcohol level registered .13 about an hour after accident that killed one and injured another). The evidence is not adequate to raise an issue that Sirmans could reasonably believe that driving while intoxicated was necessary. Sirmans could have — and certainly should have — asked for someone else to drive her and her sister-in-law to the location of the law enforcement officials. It is also possible Sirmans could have contacted the officers directly by telephone and discussed the matter over the telephone. She might also have been able to walk from her location to that of the officers, as the record suggests they were only a mile down the road. Or, equally as probable, Sirmans could have contacted the police by telephone and allowed them to drive to her location. Regardless, there were other, less dangerous options — ones that were certainly not illegal. Accordingly, under the facts of this case, we cannot say Sirmans' testimony supported instructing the jury on the defense of necessity. We believe no reasonable jury could conclude she faced an imminent danger, no reasonable jury could conclude her conduct was immediately necessary, and no reasonable jury could conclude her conduct was less dangerous than the perceived harm she hoped to prevent. As such, we cannot say the trial court erred by refusing to submit her requested jury instruction. We affirm the trial court's judgment.
We note that Sirmans' brief on appeal failed to cite to the location in the record of the requested jury charge. Rather than overrule Sirmans' sole point of error as inadequately briefed, see Tex.R.App.P. 38.1(h) (brief must contain citation to the record for issues raised); Almanza v. State, 724 S.W.2d 805 (Tex.Crim.App. 1986) (appellant must show instruction requested at trial and "some harm," or must otherwise show "egregious harm"), we have independently searched the record and located the requested jury instruction. In the interest of justice, we will not take this opportunity to overrule Sirmans' point of error on procedural grounds, but will instead address its merits.