Anson Vernon Moore, II v. State of Texas ( 2008 )

Opinion filed February 14, 2008

Opinion filed February 14, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-05-00393-CR

                                                    __________

                              ANSON VERNON MOORE, II, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                          On Appeal from the 35th District Court

                                                          Brown County, Texas

                                                 Trial Court Cause No. CR17910

                                                                   O P I N I O N

Anson Vernon Moore, II was convicted by a jury of the felony offense of driving while intoxicated.  The trial court, after finding enhancement paragraphs to be true, assessed his punishment at fifty years in the Texas Department of Criminal Justice, Institutional Division.  Moore contends in two issues that the trial court committed harmful error in not considering, at the punishment phase of the trial, evidence that he presented in the guilt/innocence phase of the trial in connection with his justification defense of necessity.  We affirm.          

Moore had previously been convicted many times of the offense of driving while intoxicated.  Evidence was presented showing that he was driving while intoxicated on the occasion in question.  At the guilt/innocence phase of the trial, Moore relied on the justification defense of necessity set forth in Tex. Penal Code Ann. ' 9.22 (Vernon 2003).  The trial court instructed the jury with respect to that defense.  Subsequently, the jury returned its verdict of guilty.

During the guilt/innocence phase of the trial, both Moore and Terisa Smith Willborn testified that they were together when he was arrested for driving while intoxicated.  They said that Terisa drove them both to a Chevron station where they were confronted by Ernest Willborn, Terisa=s ex-husband.  They each testified that Ernest pulled in front of them at the station, held out his hand holding what Moore thought to be a pistol, and said, AI told you I was going to get you, boy.@ Moore, noting that Ernest had physically injured him in the past, said that he was afraid and drove his vehicle away from the Chevron station to find an officer.

At the punishment hearing, Moore sought to have the trial court consider these facts in mitigation of his punishment.  Prior to announcing Moore=s sentence, the trial court said:

And, accordingly, in this case, I have to take into consideration all of the evidence that is presented, the totality of the evidence submitted at both the guilt-innocence and the punishment phases of the case.  And I=m doing that.  I=m not going to second guess what the jury has done.  The jury has determined and has already ruled on this issue of necessity and found that it is lacking of any merit based on their verdict.  So, I cannot give that any weight whatsoever. If there had been a finding of necessity, then you would have been found not guilty by the instructions that I gave the jury.  So, that cannot be something I can consider to mitigate punishment.

Moore argues that the trial court erred because the evidence was not offered to establish his innocence but to establish the circumstances of the crime, specifically his state of mind.

Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon Supp. 2007)^[1] allows trial courts to consider any matter they consider relevant to sentencing:

[I]ncluding but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

This statute has been interpreted broadly.  Evidence is relevant to sentencing if it is helpful in determining the defendant=s appropriate sentence.  McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007).  However, evidence that tends to exonerate the defendant or support an affirmative defense is not relevant.  Nixon v. State, 572 S.W.2d 699, 701 (Tex. Crim. App. 1978).

Moore relies upon Marrero v. State, 500 S.W.2d 818 (Tex. Crim. App. 1973), for the proposition that his necessity evidence was relevant.  There, the court held that evidence of verbal provocation was relevant at a punishment hearing in an assault trial because, even though verbal provocation would not justify the defendant=s assault, it would mitigate his punishment.  Marrero differs from this case in one important respect B necessity is a justification defense and, if proven, would have resulted in an acquittal.  Section 9.22. 

Moore=s argument that necessity evidence is admissible in a punishment hearing to establish his state of mind assumes that in some cases necessity can be a mitigating factor even if that evidence is insufficient to establish a defense.  The problem with Moore=s assumption is that it does not allow for Article 38.04.^[2]  This statute makes the jury the exclusive judge of the facts proved.  Asking the trial court to consider evidence of necessity when the jury has already rejected that defense necessarily asks the trial court to reconsider the jury=s factfinding.

Moore=s defense was fully presented to the jury.  Why it did not agree with him we do not know, but it is possible that the jury simply did not believe his story.  For example, the jury may not have believed that Ernest threatened Moore or that Moore was driving to escape Ernest.  We recognize that the jury may have also believed that Moore felt threatened, but determined that he overreacted.  So long as the jury=s verdict is supported by sufficient evidence, we may not second-guess how it reached its decision. Accepting Moore=s underlying assumption that necessity can still be a mitigating factor even if rejected by the jury as a defense would require that we do so because we would be required to decide what the jury believed.  Because we lack this authority, we cannot find that the trial court erred when it refused to consider Moore=s necessity evidence. Moore=s issues are overruled. 

The judgment of the trial court is affirmed. 

RICK STRANGE

February 14, 2008                                                                   JUSTICE

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of:  McCall, J.,

Strange, J., and Hill, J.^[3]

Opinion filed February 14, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                    __________

                                                          No. 11-05-00393-CR

                                                       ________

                              ANSON VERNON MOORE, II, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                             On Appeal from the 35th District Court

                                                            Brown County, Texas

                                                    Trial Court Cause No. CR17910

                                                  C O N C U R R I N G   O P I N I O N

I concur in the result because, as I interpret the judge=s statement, the trial court considered all of the evidence at trial with respect to the decision on punishment but made clear that the jury=s determination of the issue of necessity was not being reconsidered.  Inasmuch as Moore was requesting that the trial court consider the evidence presented at the punishment hearing and inasmuch as there is no indication that he was asking the trial court to reconsider the jury=s decision on the issue of necessity, the record does not reflect any adverse ruling by the trial court to which Moore could have complained.  Consequently, I would hold that nothing has been preserved for review.  Tex. R. App. P. 33.1(a).

JOHN G. HILL

JUSTICE

February 14, 2008

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of: McCall, J.,

Strange, J., and Hill, J.

---

     ^[1]Article 37.07, section 3(a).

     ^[2]Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979).

     ^[3]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.