No. 05-04-01524-CR
Opinion issued June 22, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-58217-KU. Affirmed.
Before Justices MORRIS, LANG, and MAZZANT.
Opinion By Justice MORRIS.
In this case, Harvey Earl Yancy appeals his conviction for burglary of a habitation. He raises five points of error, complaining the evidence against him is legally and factually insufficient and the trial court erred by instructing the jury on the law of voluntary intoxication. Concluding appellant's complaints are without merit, we affirm the trial court's judgment.
Factual Background
Claude Person was sixty-seven years old the night appellant broke into his house and assaulted him. Person and his wife were having an evening snack in their night clothes when appellant dove through the plate glass window of their living room, breaking their coffee table. Person put his hand on appellant's chest and asked him what was wrong and what he was doing in their home. Appellant yelled, "They're after me." Person asked appellant who was after him, then he heard voices outside the house. He told his wife to call 911 and get his pistol. At that point, appellant kicked Person in the chest and said, "I have a gun, too." Person hit appellant in the face and head. Appellant swung back at him. When Person's wife returned to the room, he started hitting appellant with Person's walking cane while Person continued to hit appellant with his fist. The struggle continued for three to four minutes before police arrived. At that point, appellant and Person were on the ground violently struggling with each other. Appellant would not comply with the police officers' requests and had to be subdued with pepper spray. He continued to resist the officers as they moved him to a squad car. In the opinion of the arresting officer, appellant was severely intoxicated. Before he jumped through the Persons' window, appellant kicked out other windows in the neighborhood as well. He climbed on one neighbor's roof. Neighbors saw him screaming for help, begging to be let inside and saying that someone was trying to kill him. But the neighbors did not see anyone pursuing appellant or hear anyone threatening him. Nevertheless, concerned about appellant's distress, one neighbor called 911. Another neighbor fired a gunshot out her back window because she was frightened appellant was going to enter her home. An employee of a nearby funeral home testified for appellant. He stated that on the night in question, appellant walked up to him outside the funeral home and said, "I need some help. Somebody trying [sic] to kill me." He pointed to a car down the street and said that the men inside were going to kill him. The funeral home employee said to appellant, "I don't know," and then went back inside. He did not perceive that appellant was in any danger at that point. Afterward, he watched appellant run around the neighborhood hollering for help. The people who heard him ignored him. The funeral home employee testified that appellant appeared to be scared for his life. He wondered "what was wrong with him." Appellant also testified in his defense. He admitted that he had drunk alcohol and used approximately twenty dollars' worth of crack cocaine on the night of the offense. He claimed that while he was at an apartment near the funeral home, one of his female companions left and returned with three men. The woman knew appellant had a pocket full of cash. One of the men who returned to the apartment with her had a gun, and another had a knife. When they walked through the door, they cut off the light near appellant. Appellant was scared the men wanted to rob and kill him. He claimed he then ran out the door of the apartment and through the neighborhood, asking people to call police because someone was trying to rob and kill him. He admitted breaking a few windows along the way, stating, "And they had a right to be scared but my life was in danger." Appellant claimed someone shot at him once near the funeral home. According to appellant, he dove through the Persons' front window because he thought it was the home of someone he had grown up with, who lived two doors down. He claimed he had no intention of harming anyone when he broke through the window but was just trying to save his life. Appellant claimed that, after he dove through the window, he did not remember anything else "but waking up in the hospital four days later." He said that he did not think Person lied about the struggle between them. He refused to admit, however, that he had caused bodily injury to Person during the struggle. He specifically testified, "I didn't assault anyone." Discussion
In his first four points of error, appellant complains of the legal and factual sufficiency of the evidence against him. He first claims that the evidence is legally and factually insufficient to defeat his defense of necessity. He next claims the evidence is legally and factually insufficient to prove he "possessed the requisite mental state at the time he entered Mr. Person's house." In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any 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). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). Appellant complains in his first two points of error that the evidence in his case is legally and factually insufficient to defeat his defense of necessity. Under the defense of necessity, a defendant's conduct is justified if he reasonably believes the conduct is immediately necessary to avoid imminent harm, the desirability and urgency of avoiding the harm clearly outweigh the harm sought to be prevented by the law proscribing the conduct, and a legislative purpose to exclude the justification for the conduct does not otherwise plainly appear. Tex. Pen. Code Ann. § 9.22 (Vernon 2003). The defendant has the initial burden of producing evidence raising the necessity defense. If the defendant adduces evidence, regardless of source and strength, raising every element of the necessity defense, then the burden shifts to the State to disprove the defense beyond a reasonable doubt. Stefanoff v. State, 78 S.W.3d 496, 500 (Tex.App.-Austin 2002, pet. ref'd). To raise the defense of necessity, appellant had to "admit violating the statute under which he [was] charged." Aldrich v. State, 53 S.W.3d 460, 468 (Tex.App.-Dallas 2001), aff'd, 104 S.W.3d 890 (Tex.Crim.App. 2003). A defendant may offer necessity as a justification for his offense only if he admits committing the offense. Id. Here, the State alleged appellant either entered Person's home without Person's consent with the intent to commit the felony of injury to an elderly person or entered Person's home without Person's consent and committed or attempted to commit the felony of injury to an elderly person. See Tex. Pen. Code Ann. § 30.02(a)(3) (Vernon 2003). At trial, although appellant did admit to entering Person's home without his consent, he refused to admit he had assaulted Person or entered his home with the intent to assault him. Accordingly, appellant was not entitled to the defense, and the State had no burden to disprove it. See Stefanoff, 78 S.W.3d at 501. Moreover, even if appellant reasonably believed armed men were out to get him, once he smashed his way into Person's home, "any possible justification for his conduct evaporated." Gibbons v. State, 874 S.W.2d 164, 165 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd), cert. denied, 513 U.S. 1081 (1995). The evidence against appellant is legally and factually sufficient to overcome any claimed defense of necessity. We overrule appellant's first two points of error. In his third and fourth points of error, appellant complains the evidence against him is legally and factually insufficient to prove he "possessed the requisite mental state at the time he entered Mr. Person's house." Appellant attempts to argue that the State had to prove he had the intent to assault an elderly person at the time he kicked in the window of Person's home. But the jury in this case was authorized to convict appellant of burglary of a habitation if it found either that appellant entered Person's home with the intent to commit injury to an elderly individual or that appellant entered Person's home and committed or attempted to commit injury to an elderly individual. See Tex. Pen. Code Ann. § 30.02(a)(3) (Vernon 2003). The evidence clearly showed appellant not only kicked his way into Person's home but also assaulted Person, an elderly individual. See id. § 22.04(c)(2). The evidence against appellant is legally and factually sufficient. We overrule his third and fourth points of error. In his final point of error, appellant complains the trial court erred by instructing the jury on the law of voluntary intoxication. The instruction given to the jury explained that voluntary intoxication does not constitute a defense to the commission of a crime. See id. § 8.04(a). If evidence from any source might lead a jury to conclude that the defendant's intoxication somehow excused his actions, an instruction on voluntary intoxication is appropriate. Taylor v. State, 885 S.W.2d 154, 158 (Tex.Crim.App. 1994). Here, testimony from many of the witnesses at trial, including appellant, showed his apparent intoxication seemed to persuade him of an imminent danger that did not exist. Under the facts of this case, the trial court did not err in submitting the voluntary intoxication instruction. We overrule appellant's fifth point of error. We affirm the trial court's judgment.