### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00081
- CR

Manxfred Jose Gonzalez, Appellant

v. The State of Texas, Appellee

FROM COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY NO. 18
- 05107
- 1, THE HONORABLE BRANDY HALLFORD, JUDGE PR E SIDING

D I S S E N T I N G O P I N I O N

I believe t he evidence in th is case entitled Manxfred Jose Gonzalez to his requested instructions on necessity, confinement as justifiable force, and protection of life or health

. Because the Court conclu des o therwise, I dissent.

“A defendant is entitled to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless of how the trial court views the credibility of th e d ef ense.” Celis v. Stat e , 416 S.W.3d 419, 430 (Tex. Crim. App. 2013) (citing Allen v. State , 253 S.W.3d 260, 267 (Tex. Crim. App. 2008) ). “This rule is designed to ensure that the jury, not the judge, decides the credibility of the evidence.” Miller v . S ta te , 815 S.W.2d 582, 5 8 5 (Tex. Crim. App. 1991) (op. on reh ’ g) ; Kuhn v.
State , 393 S.W.3d 519 , 532 (Tex. App.

— Austin 2013, pet. ref ’ d)

. T h e d e f e n d a n t n e e d n o t t e s t i f

y
t o r a i s e a d e f

e n s ive issue , and a defense may be raised by evidence from any source , in cl uding2

witnesses called by the State

. See Smith v. State , 676 S.W.2d 584, 585, 587 (Tex. Crim. App. 1984) ; Davis v. State , 49 0 S.W.3d 268 , 275 (Tex. App.

— Fort Worth 2016, pet. ref ’ d) ; VanBrackle v. State , 179 S.W.3d 708 , 712 (Tex. App.

— Austin 2005, no pe t. )

. We view the eviden ce in the light most favorable to the defendant ’ s requested submission. Bufkin v. State , 207 S.W.3d 779 , 782 (Tex. Cri m. App. 2006)

. “ A trial court errs in denying a [defensive ] instruction if there is some evidence, from an y s our ce , when viewed in the l ight most favorable to the defendant, that will support the elements of [the defense]

. ” Gamino v. State , 537 S.W.3d
507 , 510 (Tex. Crim. App. 2017)

.

E ach of Gonzalez ’ s requested instructions require evidenc e of a reasonable b e l i ef by Gonzalez that his conduct was immediately necessary to avoid imminent harm

. See Tex.
P enal C ode §§ 9.03 , .22, .34 ; Kenny v. State , 292 S. W.3d 89, 101 (Tex. App.

— Houston [14th Dist. ] 2007, pet. ref’d ) ; see also Smith v. State , 352 S.W.3d 55 , 71 (T e x. App.

— Fort Worth 2011, n o pet.)

. The Penal Code defin e s “ reasonable belief ” as “ a belief that would be held by an ordinary and prudent man in the same circumstances as the actor. ” Tex. Penal Code § 1 .07(a)(42)

. The Penal Code de fines “ harm ” as “ anyth i ng reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested. ” Id . § 1.07(a)(25)

. The Penal Code does not define “ i mminent , ” but t he Co urt of Criminal Appeals has defined “ i m mi n ent ” as “ready to take place, near at hand, impending, hanging threateningly over one ’ s head, menacingly near.” Henley v. State , 493 S.W.3d 77 , 89 (Tex. Crim . App. 2016)

. “ Thus, imminent harm is harm that is ready to take place

—harm that is coming in th e very near future. ” Id

. “ Logically, then, if conduct is ‘ immediately necessary ’ to avoid harm that is imminent, that conduct is needed right now. ” Id

. “ In most cases, whether a defendant was prompted to act by a reasonable belief is a question for t he t rier of fact. ”3

Brazelton v. State , 947 S.W.2d 644, 646 (Tex. App.

— Fort Worth 1997, no pet.)

. “ A defendant ’ s belief that conduct was immediately necessary to avoid imminent harm may be deemed unreasonable as a matter of law, howeve r , if undisputed fa c ts d emonstrate a complete absence of evidence of immediate necessity or imminent harm. ” Id

.

In this case, the re is not a “ complete absence ” of such evidence. The evidence show ed th at o n the night of September 19, 2018 , Amber Estrell a had bee n drinking wi th
Gonza lez at their th ird

- floor apartment in Round Rock

. As the night went on, Estrella b ecame upset and “ wanted to get up and leave

. ” Estrella testified that when she becomes upset, she likes to “drive deep in A ustin.” Estrella estimat ed tha t she “ p r o bably drank at that point like ten, twelve shots ” of vodka and that she was “ definitely ” impa ired and was throwing up

. As Estrella got up to leave , Gonzalez appeared “ very concerned ” and told her “ to sit down, that I ’ m drunk. ” Estrella “ kept tr ying to l e ave while pushing hi m out of the way or trying to get him out of my way, but he would try to

— he took my keys, he took my phone. And he kept

— he grabbed me from my shoulder s and he pus hed me on the bed and he was telling me you ’ re drunk, you need to calm d o wn . ” When Gonzalez took the car keys from Estrella, this made her angrier

. Estrella tried to le ave the apartment , but Gonzalez positioned himself between her and the doorway and
pre vented her from leaving . Estrella and Gonzalez proceeded to fi ght as E s t rel la atte mpted repeatedly to leave the apartm ent and Gonzalez continued to prevent her from leaving

. Est rella testified that in her condition that night , she pose d a threat to herself and others by attempting to drive and that Gonzalez ’ s action s preven t e d her fr om do i ng so . Def e nse coun sel asked Estrella,

“ In your review of the actions that occurred, but for [Gonzalez ’ s] actions would you have gone out and driven a car i n what you have already said you were intoxicated ? ” Estrella responded,

“ I f he did n ’ t do what he did, I probably would have gotten myself hurt, put myself in jail or hurt4

a family, correct. ” Defense counsel then asked, “ And his restraining you was something
necessary to prevent that [from] happening? ” Estrella answered, “ Absol utely. ”

V i ewed in the light most favorable to Gonzalez ’ s requested instr uctions, I would conclude that this evidence raises a n issue as to whether Gonzalez reasonably believed that his conduct in r estr aining Estrell a was immediately necessary to prevent Es trella f r o m leaving the apartment and p resenting a risk of imminent harm to herself or others

. The jury could reasonably infer that Estrella ’ s level of impairment w as readily apparent to Gonzalez, who had been with her while she was drinking in their ap ar tment , a n d that he reasonably believed that if he allowed her to leave t he third

- floor apartment i n t hat condition , s he risked imm inent harm to herself or oth ers . Gonzalez took Estrella ’ s car k eys, position ed himself between Estrella and the doorway, and fought w i t h her to prevent her from lea vin g . Gonzalez could have reasonably believe d that these actions were necessary in the moment to prevent Estrella from harming herself or others

. Estrella acknowledged this when she testified that if Gonzalez had not
preve n t e d her from leaving the apartment , she “ probably would have gotten myself h urt , put
myse lf in jail or hur t a family

. ” Moreover, Estre lla testified that she attempted repeatedly to leave the apartment and fought violently with Gonzalez as he tried to prev e n t her from leaving

. The jury could infer from this evidence that Estrella was erratic and aggressive du e to her intoxication and that Gonzalez reasonably believed that if he did not restrain Estrella immediately , she w ould harm herself or others as a res u lt of her mental and physical state

.

In determining wh ether a defense is supported by the evidence , “ a court must rely on its own judgment, formed in the light of its own common sense and experience, as to the limits of rational inference from the facts p r oven. ” Shaw v. State , 243 S.W.3d 647 , 658 (Tex. Crim. App. 2007)

. It is a matter of c ommon sense that when a n intoxicated person goes out in5

public , she can harm herself or other s . 1 The evidence s ummarized above supports findings that Gonzalez k new tha t Estrella had b een dr inking excessively and was throwing up ; he knew that she was upset , agitated , and violent ; he knew that she intended to drive ; and he knew that she

was attempting to leave the apartment in an extremely intoxicated state

. Gonzalez cou l d have reasonab ly believed that these circumstances made it immediately necessary for him to prevent Estrella from leaving the apartment and causing immi nent harm to herself or others. S uch a belief would not be “ unreasonable as a matter of la w . ” See Br a zelton , 947 S.W

. 2 d at 649. Whether Gonzalez reasonably believed his actions were immediately necessary to avoid imminent harm was a question of fac t for the jury to decide

. See id

.

I conclude on this record that the district co urt erred in denying Gonza l ez his requested instructions on necessity, confinement as justifiable force, and pr otection of life or health

. See , e.g. , Pennington v. State , 54 S.W.3d 852 , 858 (Tex. App.

— Fort Worth 2001, pet. ref ’ d) (defendant entitled to ne cessity inst ruction whe n s h e took drugs from ex

- boy f r iend ’ s house to prevent ex - boyfr iend ’ s child from seeing his fa ther use drugs ) ; B r a z e l t o n , 9 4 7 S

. W

. 2 d a t 6 4 9 (defendant entitled to necessity instruction when she took po ssession of drugs that were plant ed in her ho me because she saw police car par ked near her home and did not want her children to see her arrested) ; Spakes v. State , 891 S.W.2d 7 , 8, 11 (Tex. App.

— Amarillo 1994) (defendant entitled to necess ity instruction when he escaped from prison with other inmate s after they t o ld

1 In fact, public intoxication is a crimin al offense because of the danger an intoxicated per son can present to herself or others

. See Tex. Penal Code § 49.02(a) (“A person co m mits an offense if the person appears in a public place whi le intoxicated to the degree that the person may endanger the person or another.”); see also id . § 1.07(a)(40) (d efining public place as “any place to which the public or a substanti al group of th e public has access,” including “common areas of . . . apart ment houses”); State v. Martinez , 569 S.W.3d 621, 628 (Tex. Crim. App. 2019) (“[F]or the element of danger, it is sufficient tha t the person merely rendered himself or others subject to potential d anger.”).6

him that they would cut his throat if he did not jo in them) , aff ’ d , 913 S.W.2d 597 (Tex. Crim. App. 1996) ; see also , 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., no t designated f o r publication) ( defendant entitled to necessity instruction when he drove while intoxicated after his wife , who had been driving car , passed out ) ; Juarez v. State , No. 12

- 08

- 00009

- CR , 2009 WL 768595 , at * 4 (Tex. App.

— T yler Ma r. 2 5, 2009) (me m. op., not de s ignated for publication) (defendant entitled to necessity instruction when he bit finger of person who was suff ocating him) , aff ’ d , 308 S.W.3d 398 (Tex. Crim. App. 2010)

. Accordin gly, I would reverse the district court ’ s judg men t of convict ion and remand for a new trial. Because the Court does not, I di s sent

.

__________________________________________ Gisela D. Triana , Justice
Be f ore Chief Just i ce Byrne , Ju stices Triana and Smith Filed: February 26, 2021 Do Not Publish