IN THE

TENTH COURT OF APPEALS

No. 10-08-00179-CR

JANET LEE ELLIOTT,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 29698CR

O P I N I O N

Raising two issues, Janet Lee Elliott appeals her conviction and six-year prison 

sentence for the offense of intercepting a telephone conversation by recording it without 

the consent of either party to the conversation. See TEX. PEN. CODE ANN. § 16.02(b) 

(Vernon Supp. 2008)). We will affirm.

Background

Janet and David Elliott were going through an acrimonious and protracted 

divorce after about eighteen months of marriage. Janet had undergone numerous back 
Elliott v. State Page 2

surgeries because of a car accident and was unable to work. The trial judge in their 

divorce proceeding ordered that, while the divorce was pending, she could reside in 

David’s home and have exclusive use of a car he allegedly had bought for her before 

they were married. Janet feared that David would take her car and hide it, so she kept 

the keys hidden. After hearing an answering machine message (which Janet made a 

recording of) in which Eric Elliott (David’s son and a Plano police officer) alluded to 

taking Janet’s car, Janet obtained and connected a device to the phone to record 

telephone conversations. She recorded telephone conversations for about a month, 

edited them, and sent an edited tape to the Plano Police Department along with a 

complaint that Eric and David were conspiring to take away her car. An internal affairs 

investigation occurred (in which Eric was not internally disciplined), and an 

investigator spoke with Janet. Janet was subsequently indicted for committing the 

offense of interception of an oral communication.

At trial, Janet readily admitted to recording telephone conversations of David 

and Eric without their consent. The trial court refused her request for jury instructions 

on the defenses of self-defense and necessity. She alleges in her two issues that the trial 

court erred in refusing her two requested instructions respectively.

Standard of Review

In reviewing complaints of error in the trial court’s charge, we use a two-step 

review process. We first determine whether charge error exists and then determine

whether the error caused sufficient harm to warrant reversal. Abdnor v. State, 871 

S.W.2d 726, 731-32 (Tex. Crim. App. 1994); Porter v. State, 921 S.W.2d 553, 557 (Tex.
Elliott v. State Page 3

App.—Waco 1996, no pet.). The underlying rationale is that “a defendant is entitled to 

be convicted upon a correct statement of the law.” Hutch v. State, 922 S.W.2d 166, 174 

(Tex. Crim. App. 1996). If we find that an error exists and that it caused sufficient harm, 

we must reverse the trial court’s decision. See Porter, 921 S.W.2d at 557.

A defendant is generally entitled to a jury instruction on every 

claimed defensive issue so long as the evidence adduced at trial is 

sufficient to raise each element of the defense. See Granger v. State, 3 

S.W.3d 36, 38 (Tex. Crim. App. 1999); Hamel v. State, 916 S.W.2d 491, 493 

(Tex. Crim. App. 1996). In determining whether evidence raises a defense, 

neither the credibility, source, or strength of the evidence is material. 

Hamel, 916 S.W.2d at 493 (stating that “an accused has the right to an 

instruction on any defensive issue raised by the evidence, whether that 

evidence is weak or strong, unimpeached or contradicted, and regardless 

of what the trial court may or may not think about the credibility of the 

defense”); Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993) (“The 

evidence which raises the issue may be either strong, weak, contradicted, 

unimpeached, or unbelievable.”). If evidence is such that a rational juror 

could accept it as sufficient to prove a defensive element, then it is said to 

“raise” that element. See 43 George E. Dix & Robert O. Dawson, Texas 

Practice: Criminal Practice and Procedure § 36.47 (2d ed. 2001). The 

defendant’s testimony by itself is sufficient to raise a defensive issue 

requiring an instruction in the jury charge, particularly when the 

defendant makes a proper and timely request for such a charge. Hayes v. 

State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987). It is only when the 

evidence fails to raise every element of a defensive issue that a trial court 

may refuse to grant an instruction requested by the defendant. See Muniz,

851 S.W.2d at 254. On appeal, evidence in support of the defensive issue 

is reviewed in the light most favorable to the defense. Shafer v. State, 919 

S.W.2d 885, 886 (Tex. App.—Fort Worth 1996, pet. ref’d).

Stefanoff v. State, 78 S.W.3d 496, 499-500 (Tex. App.—Austin 2002, pet. ref’d).

Necessity

Justifications that exclude criminal responsibility are set out in Chapter 9 of the 

Penal Code. “It is a defense to prosecution that the conduct in question is justified 

under this chapter.” TEX. PEN. CODE ANN. § 9.02 (Vernon 2003).
Elliott v. State Page 4

One such statutory justification is necessity:

Conduct is justified if:

(1) the actor reasonably believes the conduct is 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 purpose to exclude the justification claimed for the 

conduct does not otherwise plainly appear. 

Id. § 9.22.

The rationale of the defense is not that the defendant, faced with 

the unnerving threat of harm unless he does an act which violates the 

literal language of the criminal law, somehow loses his mental capacity to 

commit the crime in question. Nor is it that the defendant has not 

engaged in a voluntary act. Rather, it is that even though he has done the 

act the crime requires and has the mental state which the crime requires, 

his conduct which violates the literal language of the criminal law is 

justified because he has thereby avoided a harm of greater magnitude.

Arnwine v. State, 20 S.W.3d 155, 159 (Tex. App.—Texarkana 2000, no pet.) (citations 

omitted).

Elliott’s first issue complains that the trial court erred by refusing to instruct the 

jury on necessity. To raise necessity, a defendant must admit that she committed the 

offense and then offer necessity as a justification. Young v. State, 991 S.W.2d 835, 839 

(Tex. Crim. App. 1999). Elliott testified at trial and admitted recording the phone calls. 

The threshold issue is thus whether the record contains evidence that Elliott reasonably 

believed her conduct was immediately necessary to avoid imminent harm. See Jackson

v. State, 50 S.W.3d 579, 595 (Tex. App.—Fort Worth 2001, pet. ref’d).
Elliott v. State Page 5

[A] defendant is required to present evidence that she reasonably believed 

a specific harm was imminent. See TEX. PENAL CODE ANN. § 9.22(1); 

Johnson v. State, 650 S.W.2d 414, 416 (Tex. Crim. App. 1983)[, overruled in 

part by Boget v. State, 74 S.W.3d 23, 31 (Tex. Crim. App. 2002)]; Brazelton,

947 S.W.2d at 648. “Imminent” means something that is impending, not 

pending; something that is on the point of happening, not about to 

happen. Jackson v. State, 50 S.W.3d 579, 594-95 (Tex. App.—Fort Worth 

2001, pet. filed); Smith v. State, 874 S.W.2d 269, 272-73 (Tex. App.—

Houston [14th Dist.] 1994, pet. ref’d). Harm is imminent when there is an

emergency situation and it is “immediately necessary” to avoid that harm. 

Jackson, 50 S.W.3d at 594-95; Smith, 874 S.W.2d at 273. In other words, a 

split-second decision is required without time to consider the law. Jackson,

50 S.W.3d at 594-95; Smith, 874 S.W.2d at 273.

Pennington v. State, 54 S.W.3d 852, 857 (Tex. App.—Fort Worth 2001, pet. ref’d).

Elliott testified that she decided to record the phone conversations after hearing 

an answering machine message relating to Eric trying to get her car. She said that she 

began to record phone conversations for about a month so that if David and Eric were 

planning to take her car, she would know about it and try to prevent it. Also, she said 

she recorded the phone conversations so that someone would believe her claim that 

they were planning to take the car because it would otherwise be her word against 

David’s. In several of the recorded conversations, David and Eric discussed possibly 

taking the car.

Elliott also testified that she was afraid they might harm her, as David had 

previously threatened her with violence and had poked her surgery incisions while she 

was sleeping. In one of the recorded conversations, Eric exclaimed that he wished 

Elliott were dead and that he would like to shoot her. Thereafter, Elliott edited the 

recorded conversations and sent them on one tape to the Plano Police Department with 

a letter explaining who was on the tape and what the conversations were about. 
Elliott v. State Page 6

However, she never reported her fears of the car being taken or her being physically 

harmed to law enforcement in Ellis County.

Elliott argues that the trial court erred in refusing a jury instruction on necessity 

because the recorded telephone conversations support her being fearful of David and 

Eric taking her car and of possible personal injury by David. The State counters that 

there is no evidence of imminent harm to Elliott or her car and that she learned of Eric’s 

alleged threat while she was already committing the offense of intercepting a telephone 

conversation.

We find no Texas case where a defendant urged a necessity defense to the 

offense of intercepting a telephone conversation. In a similar California case, the 

appellate court ruled that the trial court properly refused a jury instruction on necessity 

in a prosecution of a husband’s illegal recordings of his wife and her paramour’s 

telephone conversations. People v. Strother, 2004 WL 882100, at *2-3 (Cal. Dist. Ct. App. 

Apr. 26, 2004, rev. denied) (not designated for publication). In Strother, the marriage 

was troubled yet they shared the house, with the husband moving into the basement 

and the wife eventually filing for divorce. The husband testified that he recorded 

telephone conversations because he wanted to know what was going on between his 

wife and her paramour fearing for his daughter’s safety and her subsequent 

upbringing, should he lose custody. Id. at *1-3. He also learned from the recorded 

conversations of a threat involving a gun, and he had previously become aware from 

his wife that the paramour had a gun. Id. Confirming the trial court’s rationale that the 
Elliott v. State Page 7

evidence did not establish an imminent threat of harm, the California appeals court 

stated:

[D]efendant’s concern “for the safety of [his] daughter,” which prompted 

him to continue automatically recording every telephone conversation 

after he began the practice, arose from his fear that, if he ultimately lost 

custody of his daughter in the pending divorce action, her subsequent 

“upbringing” would ultimately suffer, not from a fear for her immediate 

physical safety. Even had the jury accepted that defendant's daughter 

would be imperiled by remaining in her mother's care, that evidence did 

not establish that defendant considered it to pose an “emergency” 

situation (cf. In re Eichorn, supra, 69 Cal.App.4th at p. 389).

Finally, the evidence failed to establish that defendant recorded 

Christine’s conversations to “protect[ ][him]self from being murdered” by 

Christine’s friend Ron, as he now argues. Even had defendant’s testimony 

shown that the conversation contained an imminent threat of bodily harm, 

which it did not, defendant testified he first heard about “a threat ... 

involving a gun” while listening to a conversation he had unlawfully recorded. 

This testimony effectively undermined any argument that he engaged in 

the illegal eavesdropping because he feared bodily harm at Ron’s hands; 

at the most, defendant feared Ron because of what he heard while 

engaged in illegal eavesdropping.

Because the evidence offered by defendant was insufficient to 

permit a reasonable jury to find that his unlawful eavesdropping “was 

done to prevent a significant and imminent evil” (CALJIC No. 4.43), the 

trial court properly refused to instruct the jury on the necessity defense.

Id. at *3-4.

We agree with the California court’s analysis and find it, along with Texas 

necessity law in general, applicable to this case. Elliott, while understandably 

concerned about having her car taken, presented no evidence of imminent harm relating 

to the car. See Pennington, 54 S.W.3d at 857 (“Harm is imminent when there is an

emergency situation and it is ‘immediately necessary’ to avoid that harm. ... In other 

words, a split-second decision is required without time to consider the law.”). Her 
Elliott v. State Page 8

general fear of being physically harmed is no evidence of imminent harm, and like the 

defendant in Strother, she learned of the alleged shooting threat while listening to an 

unlawfully recorded conversation, which undermines her argument that she 

intercepted the phone conversations out of fear of being shot. See Strother, 2004 WL 

882100, at *4.

In conclusion, because there is no evidence that Elliott engaged in the conduct of 

intercepting the phone conversations to prevent imminent harm, the trial court did not 

err in refusing to submit a jury instruction on necessity. We overrule her first issue.

Self-Defense

Elliott’s second issue contends that she was entitled to a jury instruction on selfdefense because of the apparent danger that she apprehended; it attempts to fit her 

recording of the telephone calls into the statutory justification of self-defense. 

Section 9.31(a) of the Penal Code provides that a person is justified in using force

against another when and to the degree she reasonably believes the force is immediately 

necessary to protect herself against the other’s use or attempted use of unlawful force. 

See TEX. PEN. CODE ANN. § 9.31(a) (Vernon Supp. 2008). By its express terms, this 

statute’s application is for a defendant accused of using force against another. Citing 

Boget v. State, Elliott argues that self-defense can be asserted when the defendant is 

accused of an offense not involving the use of force. See Boget v. State, 74 S.W.3d 23 

(Tex. Crim. App. 2002). There the court held that self-defense could apply to the offense 

of criminal mischief when the “mischief arises out of the accused’s use of force against 

another.” Id. at 24, 31. 
Elliott v. State Page 9

In Boget, the defendant was charged with criminal mischief for breaking a truck’s 

windshield with a flashlight, and he offered evidence that the truck had been driving at 

him and almost hit him. While the court held that self-defense was available to the

defendant in a prosecution for criminal mischief, the mischief must have arisen out of 

the defendant’s use of force. See id. at 27 (“in Boget’s case, the criminal mischief was 

part and parcel of his ‘use of force against another.’ In other words, without Boget’s use 

of force there would have been no criminal mischief.”); id. at 31 (“The relevant inquiry 

is whether he directed his force against another.”).

In this case there is no evidence that Elliott directed force against another in 

recording the telephone conversations. Therefore, the trial court did not err in refusing 

to submit a jury instruction on self-defense. Elliott’s second issue is overruled.

Having overruled both issues, we affirm the trial court’s judgment.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed June 24, 2009

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