Bowen, Lydia Hernandez ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-1873-03

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LYDIA H. BOWEN, Appellant

v.

THE STATE OF TEXAS

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ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND COURT OF APPEALS WISE COUNTY

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   Cochran, J., filed a dissenting opinion.

O P I N I O N

I agree with the majority that the statutory defenses of self-defense under Texas Penal Code, section 9.31, and necessity under section 9.22 are not mutually exclusive in the context of a resisting arrest prosecution. However, I do not think that the court of appeals said that they were. ⁽¹⁾ Rather, both the trial court and the court of appeals stated that given the specific evidence in this particular case, appellant's defense was wholly encompassed by the trial court's instructions on self-defense. I agree with that conclusion and therefore respectfully disagree with the majority's holding.

In this case, the evidence concerning precisely how Officer Hamilton arrested appellant was hotly contested. In deciding whether the trial court erred in submitting instructions on a statutory defense, courts look to whether there is any evidence that raises all of the elements of that defense. ⁽²⁾ Thus, we look only to the evidence that supports submission of instructions on self-defense and necessity.

Appellant testified that she knew Officer Hamilton was attempting to arrest her, but she also testified that

* Officer Hamilton, in doing so, "kicked out her legs" when he executed a "takedown"; then he pushed her face into the dirt ;

* She had not used any force against him before he kicked her legs out from under her;

* His kicking her legs and forcing her into the dirt caused her great pain;

* She struggled because she could not breathe with her face in the dirt;

* Officer Hamilton (and another officer) then lifted her up from the ground holding only the handcuffs and her forearms;

* The officers' use of force in lifting her up in this manner made her arm pop out of the socket;

* She kicked at Officer Hamilton to make him stop lifting her up and holding her in this painful manner.

The thrust of all of appellant's testimony was that she did not use any force against Officer Hamilton until he used unnecessary, excessive, and very painful force against her.

He started it by using unreasonable physical force to effect her arrest and she reacted only to protect herself. This testimony clearly raises an issue of self-defense under subsection 9.31(c). ⁽³⁾ Section 9.31(b), however, explicitly states that

The use of force against another is not justified ... to resist an arrest or search that the actor knows is being made by a police officer,... unless the resistance is justified under Subsection (c).

Thus, the legislature has, in no uncertain terms, stated that one is not justified in using force to resist an arrest unless the "resistance" is justified under subsection (c). Subsection (c) is the section appellant invoked with her testimony and that is the section under which the able trial judge instructed the jury.

Both the trial judge and the court of appeals were very careful to limit their denial of a necessity instruction because of appellant's specific testimony. The court of appeals noted that

the trial court stated that [it] did not feel that the facts of the case raised the defense of necessity and that self-defense was the appropriate defensive submission under the evidence involving force against a police officer. ⁽⁴⁾

The court of appeals upheld the trial court's assessment of the evidence and stated that it did "not believe that this admission [that she kicked the officer without intent to resist arrest] entitles her to submission of the necessity defense under the facts of this case." ⁽⁵⁾

Appellant's position-with which the majority agrees-is that "I used force against Officer Hamilton's use of excessive force not to resist arrest, but simply to stop the pain. Therefore, I am entitled to an instruction on necessity." This argument proves too much. "Stopping the pain" or "preventing the injury" from the officer's use of excessive force is the very purpose of the statutory justification of self-defense to resisting arrest. ⁽⁶⁾ As the court of appeals aptly noted,

Accepting Appellant's argument would allow any person to obtain submission of a necessity defense based upon a struggle involving use of force against a police officer when that person knows they are being placed under arrest, by later claiming he or she was only trying to avoid being hurt. ⁽⁷⁾

That is precisely the practical, though perhaps unintended, effect of the majority's holding in this case. And it is precisely for that reason that I cannot agree with the majority. The Legislature explicitly rejected this position by enacting subsection 9.31(b) which specifically precludes any justification for the use of force in resisting arrest except that justification set out in subsection 9.31(c).

Necessity, on the other hand, is a "choice of evils" defense. ⁽⁸⁾ The defendant intentionally or knowingly commits a criminal offense to avoid a greater evil or greater harm. To invoke such a defense, "the pressure must operate upon the mind of the defendant rather than upon his body." ⁽⁹⁾ The rationale behind this defense is that "the law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law." ⁽¹⁰⁾

That said, when might a necessity defense apply to a prosecution for resisting arrest? When the defendant intentionally and knowingly resists arrest because he has a higher public duty to perform which cannot be performed if he is arrested: the defendant must stop the passenger-laden train from crashing into the rock on the track; he must save the children from drowning on a raft that is floating down the swollen river; he must get his wife to the hospital before she has their first child in the backseat of the car; and so forth. ⁽¹¹⁾ In other words, the necessity is a harm that is separate and independent from the use of force to resist arrest and "the desirability and urgency of avoiding the harm [the train wreck, the drowning, the back-seat delivery] clearly outweigh ... the harm sought to be prevented by the law [resisting arrest] proscribing the conduct." ⁽¹²⁾

As Professor LaFave points out

The defenses of self-defense and defense of others are also related to the defense of necessity, justifying intentional homicide or the intentional infliction of bodily injury in cases where it is necessary to save the life of, or to prevent injury to, the defendant or another. It has been said that self-defense and defense of others constitute a part of the law of necessity which has attained relatively fixed rules. ⁽¹³⁾

That is, the statutory defense of self-defense is a codification of a subset of the necessity defense and permits the use of force against another under whatever specific circumstances are set out by the legislature. The Texas Legislature has specified the circumstances under which one may intentionally use force to resist arrest in subsection 9.31(c). And, in subsection 9.31(b), it has explicitly limited the intentional use of force to resist an arrest to only those circumstances set out in subsection (c).

Given these statutory provisions and the evidence in this case, I must agree with the trial court and court of appeals which both held that appellant was not entitled to a separate instruction on the defense of necessity. I, therefore, respectfully dissent.

Cochran, J.

Filed: May 4, 2005

Publish

1.

See Bowen v. State, 117 S.W.3d 291, 295 (Tex. App. - Fort Worth 2003).

2.

Thomas v. State, 678 S.W.2d 82, 85 (Tex. Crim. App. 1984) (trial court erred in failing to submit requested charge on defense of necessity). In Thomas, this Court set out the general statement of the law:

It is axiomatic that a defendant is entitled to an affirmative defensive instruction on every issue raised by the evidence regardless of whether it is strong, feeble, unimpeached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief.

Id. at 84.

3. Subsection 9.31(c) of the Texas Penal Code provides

The use of force to resist an arrest or search is justified:

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes that force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.

4. 117 S.W.3d at 295.

5.

Id. at 297.

6. Appellant also makes a compelling argument concerning the "eggshell" defendant who resists the use of perfectly reasonable, non-excessive force by the police officer because this reasonable force causes this particular defendant great pain although it would not cause a person of ordinary physical fitness pain. She claims that the defense of necessity exists for this situation. It does not. In that situation, the defendant is simply not guilty of a crime because she is not "intentionally" preventing a peace officer from effecting an arrest by using force against the officer. For example, appellant might have testified that Officer Hamilton was using perfectly reasonable force in pulling her arms behind her back to handcuff her. She, however, has horrible bursitis and the mere touching of her arm sent her into paroxysms of pain. She reacted

instinctively against this excruciating pain by pulling away, kicking out, thrashing about, spitting, or whatever. This is not conduct that is intended to prevent her arrest, it is "pain avoidance" conduct which denies an element of the offense: the intent to prevent or obstruct the officer from effecting an arrest. For this defense, one needs no special jury instruction because it is the denial of an element of the crime, not the "confession and avoidance" of an element of the crime. Appellant did not testify that she was an "eggshell" defendant or that Officer Hamilton used only reasonable force. But to the extent that her testimony indicated that her conduct was motivated only by "pain avoidance," not an intent to prevent her arrest, she is still simply denying one of the State's essential elements- using force with the intent to prevent or obstruct her arrest.

7.

Id. at 296-97.

8.

See generally, Wayne R. LaFave, Substantive Criminal Law §10.1 (2d ed. 2003).

9.

Id., § 10.1(a), at 117.

10.

Id. at 118.

11. Professor LaFave sets out numerous examples of the appropriate invocation of the "choice of evils" necessity defense. LaFave, § 10.1(c), at 121-24.

12. Tex. Pen. Code § 9.22(2).

13.

Id., § 10.1(c) at 121. Professor LaFave notes that "when the provision in the criminal code 'deals specifically and comprehensively with the use of force in defense of self, third persons, and premises,' a defendant 'who is unable to present an effective defense under these specific provisions is precluded from justifying his use of force under the general provision for competing harms.'" Id. n.24 (quoting State v. Crocker, 506 A.2d 209 (Me. 1986)).