Brannon, Michael v. State ( 1997 )

Affirmed and Opinion Filed May 28, 1997
In The
(£aurt of Appeals
T\fi\\ Itstrtrt of ©*xas at Dallas
No. 05-95-01663-CR
MICHAEL BRANNON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 6
Dallas County, Texas
Trial Court Cause No. MB95-43767-G
OPINION
Before Justices Lagarde, Hankinson, and Bridges
Opinion By Justice Hankinson
A jury convicted appellant Michael Brannon of evading arrest or detention.
Punishment was assessed at ninety days confinement in the Dallas County Jail, probated for
twelve months, and a $300 fine. In one point of error, appellant contends that the trial
court erred in failing to charge the jury on the defense of necessity. Because appellant
denied committing the offense, we conclude that the trial court properly refused appellant's
requested charge. We accordingly affirm the trial court's judgment.
Background
Officer Mike Pendleton testified that at 3:10 a.m. on January 9, 1995, he was driving
south in a marked patrol car on Greenville Avenue when he saw a northbound car speeding.
As the two cars passed each other, Pendleton said that the driver ofthe other vehicle looked
at him. Pendleton made a U-turn, activated his lights, and, when the other car accelerated,
engaged in a high-speed chase from the 8100 to the 9600 block of Greenville Avenue. The
fleeing vehicle then turned onto Windy Crest, where in addition to speeding, it extinguished
its lights. Once the chase went onto Windy Crest, which Pendleton described as a heavily
residential area, Pendleton activated his siren. From Windy Crest, the other carturned onto
Dove Meadow and pulled into a driveway. Pendleton said that the total distance of the
chase was about twenty-one blocks. During the chase, Pendleton saw no other car pursuing
the fleeing car. Pendleton arrested appellant, the driver. After determining appellant's
identity, Pendleton discovered that appellant had an outstanding arrest warrant for atraffic
violation.
Charles Dicks, a passenger in the car appellant was driving, said that he thought they
were fleeing an irate motorist with a gun. Dicks denied seeing any police until they were
on Dove Meadow. He maintained that once they saw the police, appellant slowed down
immediately and stopped.
Appellant, like Dicks, thought that they were being pursued by a car with three or
four men in it, one of whom had a gun. Appellant said that he was on Dove Meadow
before he first realized a police car was behind him. After seeing the police, he pulled over
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promptly. Appellant denied knowing there was a warrant out for his arrest.
Discussion
In his only point of error, appellant argues that the trial court erred by not charging
the jury on the defense of necessity. Appellant maintains that (1) he reasonably believed
that his conduct was immediately necessary to avoid imminent harm and (2) according to
ordinary standards of reasonableness, the harm he sought to avoid (being shot) outweighed
the harm the law sought to prevent by his evading arrest or detention. See Tex. Penal Code
Ann. § 9.22(1), (2) (Vernon 1994). Appellant also argues that the legislature has not
excluded his justification. See id. § 9.22(3).
The State responds that before appellant was entitled to an issue on the necessity
defense, he had to admit committing the offense and argue that other circumstances justified
his conduct. See Maldonado v. State, 902 S.W.2d 708, 712 (Tex. App.-El Paso 1995, no
pet.). Aperson commits the offense of evading arrest or detention "if he intentionally flees
from aperson he knows is apeace officer attempting lawfully to arrest or detain him." Tex.
Penal Code Ann. § 38.04(a) (Vernon 1994). Because appellant denied knowing that he
was fleeing a police car, the State maintains that appellant denied the existence of an
essential element of the State's case. The State concludes that appellant's testimony, far
from compelling, actually precluded submission of the necessity defense. See Bamette v.
State, 709 S.W.2d 650, 652 (Tex. Crim. App. 1986) (defendant who relies on defense under
chapter 9of the Texas Penal Code does not deny any element of the offense; instead,
defendant admits committing the offense but argues that his conduct was justified).
Appellant responds that he had alternative defenses. He maintains that he denied
committing the offense or, in the alternative, to the extent he committed the offense, his
conduct was justified. Appellant maintains that even where adefendant asserts the necessity
defense in the alternative, he is nevertheless entitled to its submission. See Thomas v. State,
678 S.W.2d 82, 84-85 (Tex. Crim. App. 1984).
We agree with appellant that adefendant who produces evidence from which he can
assert alternative defenses, one of which is necessity, is entitled to an issue thereon. Id.
Where we disagree with appellant is on his assertion that he produced evidence supporting
alternative defenses. In Thomas, the defendant's testimony was susceptible to different
interpretations, one of which may have constituted an admission of guilt. See id. at 85. In
contrast, appellant's testimony was straightforward: He was not aware that he was fleeing
apolice car. We therefore conclude that appellant misplaces his reliance on Thomas.
Appellant also emphasizes that he admitted speeding and driving at night without
lights. But these admissions are immaterial. He was not charged with those offenses. He
was charged with evading arrest or detention. Before appellant was entitled to an issue on
necessity, he had to admit evading arrest or detention and produce evidence that his flight
from the police was necessary and justified. See Barnette, 709 S.W.2d at 652; Maldonado,
902 S.W.2d at 712. Appellant admitted fleeing athreatening motorist; he did not admit
fleeing the police because he was afraid an unknown motorist might shoot him before the
police could intervene. We accordingly overrule his point of error.
We affirm the trial court's judgment.
^AdsiaX^
DEBORAH G. HANKINSON
JUSTICE
Do Not Publish
Tex. R. App. P. 90
951663F.U05
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ft
Glnurt of Appeals
T\itlj Itstrtrt nf ©exas at Ballas
JUDGMENT
MICHAEL BRANNON, Appellant Appeal from the County Criminal Court
No. 6 of Dallas County, Texas. (Tr.Ct.No.
No. 05-95-01663-CR V. MB95-43767-G).
Opinion delivered by Justice Hankinson,
THE STATE OF TEXAS, Appellee Justices Lagarde and Bridges participating.
Based on the Court's opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered May 28, 1997.
/sA*ia~4L<£.
DEBORAH G. HANKINSON
JUSTICE