Eugene Hartis v. State ( 2012 )

Affirmed and Memorandum Opinion filed February 2, 2012.
In The
Fourteenth Court of Appeals
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NO. 14-11-00882-CR
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EUGENE M. HARTIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 8
Harris County, Texas
Trial Court Cause No. 5598
MEMORANDUM OPINION
Appellant Eugene M. Hartis entered a plea of not guilty in a Houston municipal
court to passing an authorized emergency vehicle. A jury convicted Hartis and assessed
punishment at a fine of $200.00. Hartis appealed his conviction to the county court at law,
which affirmed the conviction. On further appeal to this court, Hartis contends the trial
court erred by conducting a jury trial without a court reporter present, and failing to charge
the jury on the defense of necessity. We affirm.
I
Because the proceedings were not recorded, the following facts are taken from an
agreed statement of facts and the clerk’s record. On May 20, 2010, Hartis was driving
westbound on Interstate 10. Officer Yvonne Wood was stopped on the shoulder of the
highway monitoring westbound traffic. Another officer was making a traffic stop on the
left shoulder; the vehicle’s emergency overhead lights were flashing. Officer Wood
observed Hartis drive past the stationary officer at approximately 60 mph in the far left
lane. Wood stopped Hartis and cited him for passing an authorized emergency vehicle.
Texas Transportation Code section 545.157 provides that on approaching a stationary
authorized emergency vehicle using visual signals, an operator of a motor vehicle shall
either vacate the lane closest to the emergency vehicle or slow to a speed 20 mph less than
the posted speed limit when the posted speed limit is 25 mph or more. Tex. Transp. Code §
545.157.
Hartis, representing himself, entered a plea of ―not guilty‖ and proceeded to trial
without a court reporter. The citation was admitted into evidence and contained several
statements by Hartis. The statements included ―Heavy Traffic‖ and ―What am I supposed
to do there are cars all around me am I supposed to get hit from behind.‖ Hartis attempted
to argue several legal points on his behalf. The state objected on relevance, and the trial
court sustained the objection. The jury found Hartis guilty and assessed a fine of $200.00
against him.
Represented by counsel, Hartis filed a motion for new trial. In the motion, Hartis
cited case law about the defense of necessity, but the trial court denied the motion.
II
In his first issue, Hartis contends that ―[t]he trial court erred in proceeding to jury
trial in appellants [sic] case without a court reporter present, in violation of Texas
Government Code Section 30.00010 and Texas Rules of Appellate Procedure Rule
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13.1(a).‖ Hartis argues that the trial court erred by failing to inform him of his right to have
the trial recorded, failing to secure a waiver of his right to have the trial recorded, and
failing to request a court reporter on his behalf.
To perfect an appeal from a municipal court, an appellant must file a written motion
for new trial with the municipal clerk setting forth the points of error of which the appellant
complains. Tex. Gov’t Code § 30.00014. An issue not presented in the motion for new trial
is not preserved for review. See Brooks v. State, 226 S.W.3d 607, 609 (Tex.
App.—Houston [1st Dist.] 2007, no pet.); Lambert v. State, 908 S.W.2d 53, 54 (Tex.
App.—Houston [1st Dist.] 1995, no pet.). Here, Hartis raised only his second issue in his
motion for new trial, and he does not contend that he objected to the lack of a court reporter
below. Therefore, he did not preserve his complaint. See Valle v. State, 109 S.W.3d 500,
508–09 (Tex. Crim. App. 2003) (appellant failed to preserve complaint that court reporter
did not record bench conferences when record did not reflect that appellant objected on this
basis below and he did not allege that he objected); see also Davis v. State, 345 S.W.3d 71,
77–78 (Tex. Crim. App. 2011) (noting that appealing party has an obligation to make a
record demonstrating that error occurred in the trial court, including an obligation to object
that the court reporter was not present, to preserve any error for appeal). We overrule
Hartis’s first issue.
III
In his second issue, Hartis contends that the trial court erred by denying him an
opportunity to argue the necessity defense to justify his unlawful conduct as provided in
Texas Penal Code Section 9.02. Texas Penal Code section 9.02 provides that it is a defense
to prosecution ―that the conduct in question is justified under this chapter.‖ Conduct is
justified under the defense of necessity if (1) the actor reasonably believed the conduct was
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
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purpose to exclude the justification claimed for the conduct does not otherwise plainly
appear. Tex. Penal Code § 9.22.
An accused is entitled to an instruction on every defensive issue raised by the
evidence. Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987). This is true
regardless of whether such evidence is strong or weak, unimpeached or contradicted, and
regardless of what the trial court may or may not think about the credibility of this
evidence. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). A defendant’s
testimony alone is sufficient to raise a defensive issue requiring an instruction in the jury
charge. Hayes, 728 S.W.2d at 807. The Court of Criminal Appeals has stated that section
9.22’s plain language ―indicates that the defense of necessity may be applicable in every
case unless specifically excluded by the legislature.‖ Bowen v. State, 162 S.W.3d 226, 229
(Tex. Crim. App. 2005).
Hartis argues that the trial court erred in overruling his request for an instruction on
the necessity defense to be included in the jury charge. But to preserve error on a defensive
charge, an appellant must object or make a specific request for the instruction. Posey v.
State, 966 S.W.2d 57, 61 (Tex. Crim. App. 1998). A trial court has no duty to sua sponte
instruct the jury on an unrequested defensive issue. Id.; see also Gandy v. State, 222
S.W.3d 525, 530 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (holding egregious
harm standard usually applied when charge error is urged for first time on appeal does not
apply to defensive issues not properly preserved by defendant’s request or objection).
Hartis did not provide a reporter’s record of the proceedings below, so we do not
know what evidence or objections Hartis may have offered in the jury trial. Hartis asserts in
his brief that he requested an instruction on the necessity defense, but the statement of facts
provided reflects only that Hartis ―attempted to argue several legal points on his behalf.‖
This record contains no indication that Hartis objected or requested a jury instruction on
the necessity defense. Therefore, Hartis has failed to preserve this issue for appeal.
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Even assuming for purposes of argument that Hartis properly requested a jury
instruction on the necessity defense at trial, he has failed to provide a record sufficient to
show error. Generally, it is the appellant’s duty to present a record demonstrating that the
trial court’s decision should be overturned. See, e.g., Newman v. State, 331 S.W.3d 447,
450 (Tex. Crim. App. 2011); Amador v. State, 221 S.W.3d 666, 675 (Tex. Crim. App.
2007); see also Green v. State, 912 S.W.2d 189, 192 (Tex. Crim. App. 1995) (―This Court
does not decide cases based on speculation about matters not shown in the record.‖). Mere
assertions in a brief not supported by the record will not be considered on appeal. Freeman
v. State, 828 S.W.2d 179, 181 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d).
Hartis maintains that the clerk’s record contains ―ample proof‖ that he sufficiently
raised the issue below, pointing to (1) the citation containing his statements about traffic
conditions, (2) the lack of language regarding the necessity defense in the jury charge, and
(3) the statement of facts indicating that the trial judge believed that the defense of
necessity did not apply to a Transportation Code violation. We disagree that the record in
this case is sufficient to enable us review the issue.
First, we cannot infer from the citation issued to Hartis what evidence, if any, he
presented or sought to present to demonstrate that he was entitled to an instruction on the
necessity defense. Even if we assume Hartis testified or would have testified that traffic
was heavy at the time he committed the offense, that fact alone does not satisfy the
elements of the defense. See Tex. Penal Code § 9.22. And we may not infer that the trial
court denied a requested jury instruction on necessity merely because the charge submitted
to the jury does not include the defense. It is just as likely that the charge does not include
the defense because Hartis did not properly request it. Finally, even though the statement of
facts reflects the trial judge’s position that the necessity defense does not apply to a
transportation-code offense, that statement was made in response to Hartis’s motion for
new trial. It is not evidence that Hartis requested an instruction on the necessity defense at
trial or that he presented evidence sufficient to support all of the elements of that defense.
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We therefore overrule Hartis’s second issue.
***
We affirm the trial court’s judgment.
/s/ Jeffrey V. Brown
Justice
Panel consists of Justices Brown, Boyce, and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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