Manxfred Jose Gonzalez v. State ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00081-CR
Manxfred Jose Gonzalez, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY,
NO. 18-05107-1, THE HONORABLE BRANDY HALLFORD, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Manxfred Jose Gonzalez of unlawful restraint, see
Tex. Penal Code § 20.02, and the trial court sentenced him to 275 days in the county jail. On
appeal, he complains that the trial court abused its discretion in denying his requested jury-
charge instructions on necessity, confinement as justifiable force, and protection of life or health.
We affirm the trial court’s judgment of conviction.
Standard of Review and Applicable Statutes
A defendant is “entitled to a jury instruction on a defensive issue if it is raised by
the evidence, regardless of the strength or credibility of that evidence.” Farmer v. State, 411
S.W.3d 901, 906 (Tex. Crim. App. 2013). In considering whether there was “some evidence
adduced at trial to warrant” a requested instruction, we view the evidence in the light most
favorable to the defendant. Id. The defendant need not testify, and a defense that calls for a jury
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instruction “may be raised by the testimony of witnesses other than the defendant.” State v.
Morales, 844 S.W.2d 885, 892 (Tex. App.—Austin 1992, no pet.). “In determining whether
evidence raises a defense, neither the credibility, source, or strength of the evidence is material.”
Stefanoff v. State, 78 S.W.3d 496, 499 (Tex. App.—Austin 2002, pet. ref’d). Instead, evidence
raises an element of a defense if a rational juror could accept the evidence as proving that
element. Id. If the evidence does not raise every element of an asserted defense, the trial court
may refuse to grant a requested instruction. Id. When, as here, the issue was preserved by a
timely request made during the charge conference, we must reverse if the charge error caused
“some harm.” Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020). “‘Some harm’
means actual harm and not merely a theoretical complaint,” and we will reverse “if the error was
calculated to injure the rights of the defendant.” Id. at 347. “To assess harm, we must evaluate
the whole record, including the jury charge, contested issues, weight of the probative evidence,
arguments of counsel, and other relevant information.” Id.
A person commits the offense of unlawful restraint if he intentionally or
knowingly restrains another person. Tex. Penal Code § 20.02(a). “Restrain” is defined as the
restriction of another person’s movements without her consent so as to interfere substantially
with her liberty, by moving the other person from one place to another or by confining her, and
restraint is “without consent” if it is accomplished by the use of force, intimidation, or deception.
Id. § 20.01(1)(A). “It is a defense to prosecution that the conduct in question is justified under
[chapter 9 of the penal code].” Id. § 9.02. Appellant argues that he was entitled to jury
instructions as to the justifications of necessity, confinement as justifiable force, and defense of
life or health. The defense of necessity provides that conduct is justified if the defendant
reasonably believes his conduct is immediately necessary to avoid imminent harm; “the
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desirability and urgency of avoiding the harm clearly outweighed, according to ordinary
standards of reasonableness, the harm sought to be prevented by the law proscribing the
conduct”; and a legislative purpose to exclude the claimed justification does not otherwise
plainly appear. Id. § 9.22. Confinement is justified when “force is justified by this chapter if the
actor takes reasonable measures to terminate the confinement as soon as he knows he safely can
unless the person confined has been arrested for an offense.” Id. § 9.03. Finally, a person is
justified in using force against another “when and to the degree he reasonably believes the force
is immediately necessary to prevent the other from committing suicide or inflicting serious
bodily injury to himself.” Id. § 9.34(a).
Summary of the Evidence
Amber Estrella testified that she and appellant were living together in September
2018. Estrella had been fired from her job because of harassment by appellant’s ex-wife and as a
result was “struggling” and “really stressed out” about money. On the evening in question,
Estrella and appellant were drinking together, and Estrella testified that she drank ten to twelve
shots of vodka to the point she “[d]efinitely would be impaired” and “was throwing up.” She
started asking appellant questions about his ex-wife, which “sort of triggered my emotions as
well as his emotions.” Estrella then decided she wanted to go for a drive, which she likes to do
when she is upset, so she picked up her keys and her cell phone, which she uses for directions
when she drives, and stood to leave. Appellant told her not to drive and to “sit down, that [she
was] drunk,” but Estrella said that she is “stubborn” and that she got angry when appellant told
her not to drive. She then “proceeded to get up and kept trying to leave while pushing him out of
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the way or trying to get him out of my way,” at which point appellant took away her keys and
phone, grabbed her shoulders, pushed her onto the bed, and told her to calm down.
Estrella said that when appellant took her keys, she grew angrier and “forcibly”
tried to leave the apartment, and appellant got between her and the door, grabbed her, and tried to
stop her from leaving. At one point, Estrella pushed appellant into their boa constrictor’s tank,
and “he pushed me on the bed and was trying to make me relax.” Estrella bit appellant’s hand
“really hard,” but when appellant bit her on her back “very hard,” Estrella stopped biting him.
Estrella testified that she would pause fighting or struggling, appellant would “relent” or “ease
up,” and she would try to leave again, including trying to sneak out through the bathroom.
Appellant kept stopping her from leaving, including putting her back into the bedroom, carrying
her over his shoulder into the bedroom, or holding her down on the floor, all while Estrella kept
screaming.
Someone at the apartment complex called the police, and Estrella said when they
arrived, “I remember running to the door. I remember opening the door. And I remember
crying. I remember telling them that I was bitten. And other than that I don’t remember
anything else.” Estrella testified that although appellant told the police that the couple’s cats had
scratched his neck, she admitted to them that she had done it. Estrella also testified that she told
an officer that she did not want to press charges but was told “you’re not going to be pressing
charges, we’re going to be pressing charges which upset me even more because that wasn’t the
situation that I wanted.” Estrella testified that appellant “was very concerned” about her and that
he was wrongfully charged. She agreed when she was asked whether in her condition that night
she “could pose a threat” to herself or others; said that if appellant had not acted as he did, “I
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probably would have gotten myself hurt, put myself in jail or hurt a family”; and answered,
“Absolutely,” when asked if his restraining her was “necessary to prevent that from happening.”
Discussion
For appellant to be entitled to an instruction on his defensive issues, the evidence,
viewed in the light most favorable to him, had to raise an issue as to each element of each of the
defenses. All of his asserted defenses have in common the element of immediacy, meaning that
appellant must have reasonably believed that his conduct was necessary in the moment to stop
some harm. See Tex. Penal Code §§ 9.03, .22, .34. The State argues that the evidence did not
raise an issue as to “imminent harm” or “immediate necessity” and that, therefore, appellant was
not entitled to his requested instructions. See Kenny v. State, 292 S.W.3d 89, 101 (Tex. App.—
Houston [14th Dist.] 2007, pet. ref’d ) (record revealed “complete absence of immediate
necessity or imminent harm” where defendant testified that he and victim had argued “for at least
five minutes before he tied her wrists together when she attempted to exit his vehicle for the
second time”; defendant failed to show that he decided to restrain victim “in a split-second
without time to consider any legal alternatives, such as requesting her car keys”); see also
Fuentes v. State, No. 11-05-00003-CR, 2006 WL 648343, at *2 (Tex. App.—Eastland Mar. 16,
2006, pet. ref’d) (not designated for publication) (no error to refuse necessity instruction when
defendant wrestled victim for keys for twenty minutes, vehicle was not moving, and keys were
not in ignition; evidence did not show defendant reasonably believed he had to “immediately
assault the victim to prevent imminent harm”); Jordan v. State, No. 03-02-00041-CR, 2002 WL
31083349, at *2 (Tex.—Austin Sept. 19, 2002, no pet.) (not designated for publication)
(defendant and victim struggled at residence, victim left and walked to convenience store,
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defendant waited five minutes then drove to get her, and defendant and victim struggled again at
store while defendant tried to force her into car; no error to refuse necessity instruction because
victim was not on verge of driving away during first struggle at house, defendant had time to
consider situation and take “less drastic steps” to stop victim from driving, no evidence showed
that victim was in imminent peril at store when appellant arrived, and defendant “was not forced
to make a split-second decision without time to consider the available options”). It further
argues that the evidence did not suggest that appellant could reasonably have believed his
conduct was necessary.
“‘Imminent’ means something that is immediate, something that is going to
happen now,” and “imminent harm contemplates a reaction to a circumstance that must be the
result of a ‘split-second decision [made] without time to consider the law.’” Stefanoff, 78
S.W.3d at 501 (quoting Smith v. State, 874 S.W.2d 269, 273 (Tex. App.—Houston [14th Dist.]
1994, pet. ref’d)); see also Pennington v. State, 54 S.W.3d 852, 857 (Tex. App.—Fort Worth
2001, pet. ref’d) (“‘Imminent’ means something that is impending, not pending; something that
is on the point of happening, not about to happen”; “Harm is imminent when there is an
emergency situation and it is ‘immediately necessary’ to avoid that harm”; and “a split-second
decision is required without time to consider the law.”). “[T]the unavailability of legal
alternatives is not a requirement of the defense of necessity,” Pennington, 54 S.W.3d at 859, but
“even a defendant’s sincere belief that his or her conduct is immediately necessary to avoid
imminent harm is unreasonable as a matter of law if the undisputed facts demonstrate a complete
absence of ‘immediate necessity’ or ‘imminent harm’ as those concepts are defined in the law,”
Dewalt v. State, 307 S.W.3d 437, 454 (Tex. App.—Austin 2010, pet. ref’d).
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Estrella testified that her intention was to get in her car and drive; that she was
definitely impaired, having drunk between ten and twelve shots; and answered, “Absolutely,”
when asked whether appellant’s actions were necessary to keep her from driving impaired and
probably hurting herself or someone else. However, although the record does not indicate the
length of the altercation, it seems to have lasted longer than one or two minutes, given that it was
still going on when the police arrived at the apartment in response to a neighbor’s phone call, and
Estrella testified that appellant took away her car keys early in the confrontation.1 The record,
viewed in the light most favorable to appellant, shows that after he took the keys, Estrella
continued to try leave the apartment while appellant kept her physically confined in the
apartment, but there was no evidence Estrella would have been at risk of “imminent” or
“immediate” harm had she left the apartment without her keys or phone. Further, even if we
could view Estrella’s testimony as indicating that the ongoing altercation involved Estrella trying
to regain her keys, an inference not supported by the testimony or other evidence, there is no
evidence that there would have been any “imminent” harm if she had recovered the keys while in
the apartment or that appellant could reasonably have believed it necessary to keep her in the
apartment because she had regained the keys or had some other means of driving. Finally,
appellant’s arguments, both in the trial court and on appeal, focus on the specter of Estrella’s
1 The only evidence related to the accessibility of Estrella’s car keys was her testimony
on direct examination by the State that when she decided to go for a drive, appellant told her she
was drunk and to sit down; that being “a stubborn person,” she stood up and tried to leave “while
pushing him out of the way”; that appellant “took my keys, he took my phone,” and he “grabbed
me from my shoulders and he pushed me on the bed and he was telling me you're drunk, you
need to calm down.” On cross-examination, Estrella again explained that she got angry when
appellant initially told her not to drive, that she tried to get her keys and leave the apartment to
drive, that he took her keys away, that she got angrier and “forcibly” tried to leave the apartment,
and that appellant grabbed her and positioned himself between Estrella and the door, keeping her
in the apartment and telling her to lie down because she was drunk.
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intention to drive while intoxicated, not on an imminent harm that might have been presented by
an intoxicated Estrella leaving the apartment on her own, such as falling down a flight of stairs.
Viewed in the light most favorable to appellant, the evidence does not raise an
issue as to whether appellant could reasonably have believed that his continuing to keep Estrella
in the apartment after he took away her keys—which the information stated he accomplished by
holding her down with his hand and with his own body—was immediately necessary to prevent
Estrella from driving while intoxicated or some other imminent harm. See Tex. Penal Code
§§ 9.22(1), 9.34(a); Dewalt, 307 S.W.3d at 454; see, e.g., Wright v. State, No. 05-09-00421-CR,
2010 WL 2560536, at *5 (Tex. App.—Dallas June 28, 2010, no pet.) (mem. op., not designated
for publication) (defendant entitled to necessity instruction when he testified that he drove while
intoxicated only because his wife had trouble breathing and passed out while she was driving,
making defendant fear she might die and feel he had no choice but to drive); Jordan, 2002 WL
31083349, at *2 (defendant assaulted victim at residence and then by trying to force her into his
truck several minutes after she walked alone to convenience store; defendant not entitled to
defensive instruction because victim was not on verge of driving away during initial struggle,
defendant had time to consider situation, and no evidence victim was in imminent peril at store).
The trial court therefore did not err in refusing appellant’s requested defensive instructions. We
overrule appellant’s issues on appeal.
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Conclusion
We have held that the trial court did not err in refusing appellant’s requested jury
instructions on necessity, confinement as justifiable force, and protection of life and health. We
therefore affirm the trial court’s judgment of conviction.
__________________________________________
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Triana and Smith
Dissenting Opinion by Justice Triana
Affirmed
Do Not Publish
Filed: February 26, 2021
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