IN THE COURT OF CRIMINAL APPEALS 

OF AUSTIN, TEXAS 

THOMAS LESTER HARPER, § 

Appellant § 

§ NO. 

VS. § 

§ 

THE STATE OF TEXAS, § 

Appellee § 

ON PETITION FOR DISCRETIONARY REVIEW FROM THE DECISION 

OF THE COURT OF APPEALS FOR 

THE SECOND DISTRICT OF TEXAS, AT FORT WORTH, TEXAS 

IN CAUSE NO. 02-14-00189-CR 

AFFIRMING APPELLANT'S CONVICTION AND SENTENCE 

IN CAUSE NO. 1318353R 

HONORABLE WAYNE SALVANT, PRESIDING 

FROM THE CRIMINAL DISTRICT COURT NUMBER TWO OF 

TARRANT COUNTY, TEXAS 

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW 

Richard A. Henderson 

State Bar No. 09427100 

RICHARD A. HENDERSON, P.C. 

100 Throckmorton Street, Suite 540 

Fort Worth, Texas 76102 

817-332-9602 - Telephone 

817-335-3940 - Facsimile 

richard(iirahenderson. corn 

ATTORNEY FOR APPELLANT, THOMAs LESTER HARPER 

PD-1120-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 8/26/2015 2:21:24 PM

Accepted 8/28/2015 11:43:45 AM

ABEL ACOSTA

CLERK
SUBJECT INDEX 

IDENTITY OF PARTIES AND COUNSEL .......................................................ii,iii 

TABLE OF AUTHORITIES....................................................................................iv 

STATEMENT REGARDING ORAL ARGUMENT...............................................1 

STATEMENT OF THE CASE ................................................................................. 1 

STATEMENT OF PROCEDURAL HISTORY.......................................................3 

GROUND FOR REVIEW.........................................................................................3 

REASONS FOR REVIEW .......................................................................................3 

CONCLUSIONAND PRAYER...............................................................................7 

CERTIFICATE OF COMPLIANCE ........................................................................8 

CERTIFICATE OF SERVICE..................................................................................8 

APPENDICES...........................................................................................................9 

Appendix "A" 

(Opinion of the Court of Appeals Second District of Texas, 

Fort Worth, Texas) 

Appendix "B" 

(Motion for Rehearing) 

Appendix "C" 

(Order denying appellant's motion for rehearing) 
IDENTITY OF PARTIES AND COUNSEL 

The following is a complete list of all parties pursuant to Texas Rules of 

Appellate Procedure 68.4(a): 

1. Mr. Thomas Lester Harper 

TDCJ #01931894 

O.B. Ellis Unit 

1697 FM 980 

Huntsville, Texas 77343 

Defendant/Appellant 

2. Mr.Leo Haley, Jr. 

1319 Ballinger Street 

Fort Worth, Texas 76102 

Ms. Elizabeth Anne Miller 

Law Offices of Roderick C. White 

2201 Main Street, Ste 800 

Dallas, Texas 75201 

Mr. Ezekiel Tyson, Jr. 

Tyson Law Firm PLLC 

342 W. Montana Avenue 

Dallas, Texas 75224 

Trial Attorneys for Defendant 

3. THE STATE OF TEXAS 

Ms. Amy Collum 

Assistant Criminal District Attorney, Tarrant County 

Mr. Jack V. Strickland 

Assistant Criminal District Attorney, Tarrant County 

401 W. Belknap Street 

Fort Worth, Texas 76196 

Trial Attorneys 

11 
Mr. Charles Mallin 

Former Chief of Appellate 

Tarrant County District Attorney's Office 

Mr. Joe Shannon, Jr. 

Former Criminal District Attorney 

Tarrant County, Texas 

401 W. Belknap Street 

Fort Worth, Texas 76196 

Ms. Debra Windsor, Chief, Post -Conviction 

Assistant Criminal District Attorney 

Tarrant County, Texas 

401W. Belknap Street 

Fort Worth, Texas 76196 

Ms. Sharen Wilson 

Criminal District Attorney 

Tarrant County, Texas 

401 W. Belknap Street 

Fort Worth, Texas 76196 

Plaintiff/Appellee 

4. Honorable Wayne Salvant 

Judge, Criminal District Court No. Two 

401 W. Belknap Street 

Fort Worth, Texas 76196 

Trial Judge 

5. Richard A. Henderson 

Richard A. Henderson, P.C. 

100 Throckmorton Street 

Suite 540 

Fort Worth, Texas 76102 

Attorney for Appellant 

111 
TABLE OF AUTHORITIES 

CASES 

Armstrong v. State, 179 S.W.3d 84 (Tex. App.— Fort Worth 2005) .4 

Juarez v.State, 308 S.W.3d 398,399 (Tex. Crim. App. 2010) ............................ 4,5,6 

CODES: 

Tex. Penal Code Ann. § 9.22..................................................................................4,6 

Tex. Penal Code Ann. § 2.03(c)............................................................................. 5,6 

iv 
STATEMENT REGARDING ORAL ARGUMENT 

Petitioner believes that oral argument would aid the court in deciding the 

critical issues presented. 

STATEMENT OF THE CASE 

This is an appeal from Cause Number 1318353R from Criminal District 

Court Number Two, Tarrant County, Texas, the Honorable Wayne Salvant, judge 

presiding. The two count indictment alleged murder with a deadly weapon, a 

firearm. The plea was not guilty. The jury found Appellant guilty of murder. 

The jury assessed punishment at life in the Institutional Division of the Texas 

Department of Criminal Justice. The trial court denied a requested jury charge by 

Appellant of necessity after Appellant had testified that he shot the decedent, 

Clarence Robinson, but did so to protect his children. 

December 14, 2011 was a tragic and violent day in the City of Arlington, 

Texas, specifically, at the intersection of Brown and Collins Streets, where a 

deadly collision occurred. 

Appellant, while driving a Tahoe truck, with his twin children in the rear 

seat, had a relatively minor collision at Collins and Washington Streets with a 

vehicle in which Zachry Treible and Kay Lynn Head were riding. It was about 1:40 

1 
in the afternoon. Appellant continued on Collins, accelerating at a high rate of 

speed. As he approached the intersection of Brown and Collins, he struck a Dodge 

Dakota, being driven by Najee Nazir. Appellant's speed was calculated at 93 

miles per hour. Appellant never applied his brakes. A chain reaction collision 

occurred, as other vehicles were struck. Najee Nazir was killed and pronounced 

dead at the scene. 

The collision was captured on video from cameras at a nearby Valero gas 

station. The impact is clearly visible on the video as is the sound, which witnesses 

described as sounding like a bomb went off. The axle and wheel were knocked off 

Nazee Nazir's Dakota and the wheel was found down a nearby hill in an apartment 

parking lot. The Dakota, driven by Najee Nazir, is clearly visible in the Valero 

video prior to the collision, as is the impact. 

After the collision, many people rushed up to help the injured. One of these 

was Clarence Robinson who had been eating food at a nearby McDonald's. Zach 

Treible approached Appellant's vehicle and saw Appellant incoherent and two 

young children screaming in the back seat. Robinson was able to get one of the 

children out of the vehicle while the child was still in a car seat. Appellant then 

first pointed a gun at Treible, then at Robinson, and fired a shot at Robinson who 

2 
immediately fell to the ground. He was dead at the scene. He had a soda straw 

from McDonald's still in his mouth. 

Appellant testified in his defense. He admitted the conduct of killing 

Robinson but that he did so because he felt it was necessary to protect his children. 

STATEMENT OF PROCEDURAL HISTORY 

The Court of Appeals issued its Opinion affirming the conviction on July 2, 

2015. A Motion for Rehearing was e-filed by Appellant on July 15, 2015. The 

Motion for Rehearing was overruled by the Second Court of Appeals on July 30, 

2015. This Petition for Discretionary Review is timely if filed on or before 

August 29, 2015. 

GROUND FOR REVIEW 

GROUND FOR REVIEW: Is it reversible charge error to deny a requested 

necessity instruction as a matter of law when an accused admits the underlying 

conduct of murder but testifies he did so to protect his children? 

REASONS FOR REVIEW 

REASONS FOR REVIEW: 

The Court of Appeals in its opinion ruled that Appellant's assertion of 

necessity was insufficient as a matter of law. 

3 
This court stated in Juarez v. State, 308 S.W.3d 398,399 (Tex. Crim. App. 

2010), that when an accused admits the underlying conduct but states that it was 

necessary, a jury instruction is mandatory no matter how weak the evidence may 

seem. See also Armstrong v. State, 179 S.W.3d 84 (Tex. App.— Fort Worth 

2005). 

In this case, the Appellant took the stand and specifically admitted to the 

conduct. Appellant then stated he believed it was necessary to protect his children. 

In Juarez this court stated that necessity invokes the long-standing legal 

doctrine of confession and avoidance. Two things must occur. First, a defendant 

must admit to all elements of a charged offense before the defendant will be 

entitled to a defensive instruction. Alternatively, a defensive instruction is 

required when the defendant's defensive evidence essentially admits to every 

element of the offense, including the culpable mental state. 

The defense of necessity is defined in Tex. Penal Code Ann. § 9.22 and states: 

Conduct is justified if: 

(1) the actor reasonably believes the conduct is immediately 

necessary to avoid imminent harm; 

4 
(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. 

In Juarez, the court also stated that the confession and avoidance doctrine 

applies to the necessity defense, and acknowledged that the doctrine conflicts with 

Tex. Penal Code Ann. § 2.03(c)'s general rule governing when a defensive 

instruction is required. Section 2.03(c) states: "The issue of the existence of a 

defense is not submitted to the jury unless evidence is admitted supporting the 

defense." The defendant bears the burden of showing that each element of the 

defense has been satisfied. 

This court also stated that a trial judge must, upon a defendant's proper 

request, instruct the jury on every defensive issue raised by the evidence without 

regard to its source or strength. Under this doctrine, it is of no consequence 

"whether such evidence or testimony was produced by the prosecution or the 

accused, or whether such defensive evidence or testimony might be strong, weak, 

unimpeached, or contradicted." 
In Juarez, the court also stated that confession and avoidance doctrine's 

requirement that a defendant admit to the conduct conflicts with Tex.Penal Code 

Ann. § 2.03(c)'s general rule that a defense is supported by the evidence if there is 

evidence from any source on each element of the defense. 

The court further ruled: 

"However, this conflict does not disturb our determination that § 9.22 

embraces the confession and avoidance doctrine. When interpreting statutes that 

are in pari matenia and construed together, both are given effect with the special 

governing over the general in the event of a conflict. In this instance, Tex.Penal 

Code Ann. § 9.22's admission requirement governs the specific defensive issue of 

necessity and therefore trumps Tex.Penal Code Ann. § 2.03(c)'s general rule." 

In the instant case, the Appellant admitted he shot and killed Clarence 

Robinson but Appellant stated that he did so to protect his child, not knowing that 

Clarence was actually trying to help. 

The issue was raised and the jury should have been instructed. 
CONCLUSION AND PRAYER 

WHEREFORE, Appellant respectfully requests that the case be reversed 

and rendered in his favor or at least for a new trial. 

Respectfully Submitted, 

RICHARD A. HENDERSON, P.C. 

Two City Place 

100 Throckmorton Street 

Suite 540 

Fort Worth, Texas 76102 

(Telephone) 817-332-9602 

(Telecopier) 817-335-3940 

E-mail: 

Richard A. Henderson 

State Bar No. 09427100 

ATTORNEY FOR APPELLANT 

THOMAS LESTER HARPER 

7 
CERTIFICATE OF COMPLIANCE 

This document complies with the typeface requirements of TEx.R.APP. P. 

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the 

word-count limitations of TEx.R.APP. P. 9.4(i) because it contains 1,830 words, 

excluding any parts exempted by TEx.R.APP.P. 9.4(i)(1), as computed by the 

word-count feature of Microsoft Office Word 2010, the computer software used to 

prepare the document. (_ LZ:O-al 

ichard A. Henderson 

CERTIFICATE OF SERVICE 

A true copy of the Appellant's Petition For Discretionary Review has been 

electronically served on opposing counsel, Ms. Debra Windsor, Assistant Criminal 

District Attorney, Chief, Post-Conviction, Tarrant County District Attorney's 

Office, 401 W. Belknap Street, Fort Worth, Texas 76196 and mailed U.S. Regular 

Mail to Appellant, Mr. Thomas Lester Harper, TDCJ #01931894, Ellis Unit, 1697 

FM 980, Hunstville, Texas 77343 onthl is!2 t301 f August 

R1iard A. Henderson 

8 
APPENDICES 
APPENDIX "A" 

OPINION OF 

COURT OF APPEALS 

SECOND DISTRICT OF TEXAS 

Fort Worth 
COURT OF APPEALS 

SECOND DISTRICT OF TEXAS 

FORT WORTH 

NO. 02-14-00189-CR 

THOMAS LESTER HARPER APPELLANT 

AA 

THE STATE OF TEXAS STATE 

FROM CRIMINAL DISTRICT COURT NO.2 OF TARRANT COUNTY 

TRIAL COURT NO. 1318353R 

[.i; i ir. 

I. Introduction 

In four issues, appellant Thomas Lester Harper appeals his murder 

conviction. We affirm. 

II. Factual and Procedural Background 

On December 14, 2011, at around 1:40 p.m., while under the influence of 

marijuana, Harper was driving his Tahoe SUV on Collins Street in Arlington, 
Texas. His two-year-old twins were in the back seat.' As Harper's vehicle 

approached the intersection of Collins and Washington, the Tahoe sideswiped 

the back of another vehicle that had stopped for the red light. Rather than stop 

after the collision occurred, Harper continued through the intersection against the 

red light. The driver and passenger of the rear-ended vehicle called 911 and 

attempted to follow Harper's vehicle, but they could not keep up with Harper, who 

was travelling over 80 miles per hour in a 35-mile-per-hour zone. The next time 

they saw Harper's vehicle, it was "flying to the side of the road," having collided 

with several other vehicles in the roadway. That second collision caused the 

afternoon's first fatality, Najee Nasir, the driver of a gray pickup truck. 

911 callers at the scene of the second collision described it as a "massive 

wreck" caused by "some guy [who] plowed through what look[ed] like half a 

dozen cars" as he was speeding through the intersection .2 The Tahoe's frontend was destroyed, its engine compartment and windshield were smashed, 

some of the doors on the front side of the vehicle were bent, and the SUV was 

smoking and leaking fluids. Harper's children could be heard crying inside. 

Several bystanders, including the driver of the vehicle that had been 

sideswiped in the first collision, rushed to Harper's vehicle to render aid. One of 

"The children were secured in dangerous "booster seats," instead of the 

more protective and age-appropriate safety seats. Booster seats are designed 

for older children. 

2The engine diagnostic recorder from Harper's vehicle did not indicate that 

Harper applied his brakes. 

FA 
the first good Samaritans to arrive, eighteen-year-old Clarence Robinson, 

attempted to rescue Harper's children from the back seat of his smoking SUV. 

After Robinson managed to release the first child from the mangled, smoking 

vehicle, Harper pulled out a handgun and shot him, causing both Robinson and 

the child to fall to the ground. See Tex. Penal Code Ann. § 19.02(b) (West 

2011). The child's empty car seat remained on top of Robinson's body until 

police were able to arrest Harper, and the child crawled in the street until 

someone was able to pick her up. 

In the meantime, John Derichweiler, a peace officer employed by the 

Department of Homeland Security's Federal Protective Service, who had just left 

a nearby restaurant, arrived at the scene of the collision. As he pulled his 

marked vehicle behind one of the cars, a man approached him, yelling "he's still 

got a gun,"3pointing toward Harper's vehicle. Realizing that he was witnessing 

more than just a traffic accident, Inspector Derichweiler grabbed his shotgun, 

directed onlookers to get away from the SUV, and ordered the driver to "show 

[his] hands." Harper did not comply,4but after issuing his command, Inspector 

Derichweiler did see two little hands appear out of the back seat window. At that 

3Several of the 911 callers were still on the phone reporting the collisions 

when they heard Harper's gunshot and saw it scatter the people who were trying 

to help. One of the callers reported that while people were trying to rescue the 

injured, Harper "just shot the man who was trying to take his baby out [of] the 

car." 

4Harper never complied with the order to show his hands. 

3 
point, realizing that there was a child in the back seat, Inspector Derichweiler 

kept his gun aimed at Harper and waited for other emergency units to arrive 

before attempts were made to handcuff Harper and remove him from the 

vehicle.5 

The fire department had to use the "jaws of life" to extract Harper from the 

vehicle after he was placed in handcuffs. Inspector Derichweiler then secured 

his shotgun, cut the seatbelt off the remaining child, and helped pull the child out 

of the window and away from the SUV.6 

Three hours later, after Harper had been released from the hospital he had 

been transported to for medical treatment, he was escorted to jail. That day, 

Harper left behind two dead in his wake—Nasir, the driver of the gray pickup 

truck whose medical needs could not be attended to while the officers were 

required to focus on Harper, and Robinson, the good Samaritan who Harper shot 

with his handgun. 

At the close of evidence in the trial for Robinson's murder, Harper 

requested a jury instruction on necessity, and the trial court denied the request. 

The jury found Harper guilty of murder as charged in the indictment. 

5lnspector Derichweiler testified that during this time, another citizen 

sought his help with Nasir, the man in the gray pickup, who had been seriously 

injured in the collision. He recalled, "[H]e's like, [t]hat dude is dying in there, he's 

dying in there," but Inspector Derichweiler explained that he was unable to attend 

to the injured man's needs at that time. Instead, he responded, "Let me deal with 

the guy with the gun first." 

6Harper and his children were uninjured. 

4 
During the punishment phase of the trial, Harper requested a jury 

instruction on sudden passion, and the trial court denied the request. The jury 

assessed Harper's punishment at confinement for life and a $10,000 fine. 

III. Jury Charge 

In his first two issues, Harper argues that the trial court erred by denying 

jury instructions on necessity and sudden passion, contending that these 

instructions were required based on his testimony that he shot Robinson but 

believed the shooting was necessary to protect his children. 

A. Standard of Review 

In our jury charge review, we first determine whether error occurred; if 

error did not occur, our analysis ends. Kirsch v. State, 357 S.W.3d 645, 649 

(Tex. Grim. App. 2012). A trial court may refuse an instruction on a defensive 

theory if the issue was not raised by the evidence. Murkiedove v. State, 437 

S.W.3d 17, 21 (Tex. App.—Fort Worth 2014, pet. dism'd, untimely filed) (citing 

Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Grim. App. 2007), cert. denied, 

553 U.S. 1059 (2008)). When reviewing a trial court's decision to deny a 

requested defensive instruction, we view the evidence in the light most favorable 

to the defendant's requested submission. Id. (citing Bufkin v. State, 207 S.W.3d 

779, 782 (Tex. Crim. App. 2006)). 

5 
B. Evidence 

Harper testified that on the day of these events, he either blacked out for "a 

little split second ,7 or fell asleep and then was hit by a vehicle.8Harper testified 

that his foot remained on the gas, and he accelerated. He posited that his truck's 

accelerator had malfunctioned,9and he remembered his vehicle being hit again 

and spinning out before his airbag deployed, leaving him in and out of 

consciousness and in a daze. He said he recalled his children "yelling and 

whining and crying or whatnot" but they did not appear to be injured on the 

outside. 

7Harper's urine and blood tested positive for marijuana, but Harper denied 

having smoked marijuana on December 14, claiming it had been a month since 

his last use. He nonetheless acknowledged that marijuana was in his system on 

that day. A police officer testified that Harper had laughed, spoken 

nonsensically, and mugged for the news cameras after his arrest, and a 

television clip taken by a media helicopter showing Harper's post-arrest behavior 

was admitted into evidence. The DWI officer who received Harper's consent to a 

blood draw testified that he appeared drowsy and, based on his bloodshot eyes, 

delayed response, and repetitiveness in asking the same questions over and 

over, she suspected that he was under the influence of marijuana. The chief 

toxicologist for the Tarrant County Medical Examiner's Office testified that the 

side effects of tetrahydrocannabinol (THC), the active ingredient in marijuana, 

can be severe, ranging from increased appetite, drowsiness, confusion, and red, 

watery eyes to impaired judgment and hallucinations. 

8The driver and passenger of the first vehicle that Harper hit testified that 

Harper's vehicle hit theirs from behind while they were stopped at a red light. 

9The State's collision reconstruction ist testified that he found nothing 

mechanical in his overall inspection of Harper's vehicle that would have either 

caused the vehicle to spontaneously accelerate to a high speed or prevented the 

driver from braking or steering. 

Li 
Harper said that after the collision, he heard someone say, "You need 

some help?" and that he responded, "No, I don't. I'm okay," because he could 

hear sirens and knew "some real help" was about to arrive.10He recalled saying, 

"Stop," when he saw an arm go through the window by his daughter, unlock the 

door, and then open the door. Harper said that he saw an arm cross his 

daughter's lap to unbuckle her seat belt and that a man grabbed his daughter's 

car seat when the seat belt came unlatched. His daughter started yelling, and 

that noise "triggered" something in him. Harper turned around and started 

looking for his gun, found it on the floorboard by the gas pedal, grabbed it, turned 

back around, and fired it.11 Harper said that he fired the weapon because he felt 

like his children were in danger but that no one was listening to him. He also 

said that at that moment, he did not know that the person he shot was trying to 

help and that he did not understand what was going on. 

1013ecause the collisions had completely stopped the flow of traffic, 

numerous people were gathered at the scene. One of the would-be rescuers 

testified that he yelled at Harper to see if he was okay, trying to get his attention, 

but that he received no acknowledgment even though Harper was conscious. 

"One of the children's would-be rescuers testified that he backed up after 

seeing Harper pull out the handgun, point it, and say, "It's your bad day." 

Another said he did not hear Harper say anything before he fired the gun. Two 

more testified that when they asked Harper if he needed to get his children out of 

the car, Harper replied, "Real recognize real," and that while they were trying to 

help the children, Harper said, "Get the fuck away from my car." The mother of 

Harper's twins explained that "real recognize real" means "real honest people 

know real honest people type thing" but said that she did not "speak a lot of 

signs." 

7 
During cross-examination, Harper agreed that he had testified that on 

December 14, 2011, he intentionally or knowingly caused Robinson's death by 

shooting him, that he also denied that he had intentionally engaged in the 

conduct that resulted in Robinson's death, and that he had also said that he did 

not intend to kill Robinson. 12 Harper testified that it was easier to shoot Robinson 

because he did not know him and that Robinson's taking his child changed 

everything. 

Several witnesses testified that they never saw any indication that 

Robinson was armed or presented any danger and that they believed that 

Robinson was trying to help the two young children that were crying in the back 

seat of the smoking vehicle. Harper agreed that he did not see anything that 

would have caused an ordinary prudent person to believe that Robinson had a 

weapon, nor did he see Robinson with any deadly weapon. He further testified 

12 The confession-and-avoidance doctrine applies to the necessity defense, 

requiring a defendant to admit the conduct—both the act and the culpable mental 

state—of the charged offense to be entitled to a necessity instruction. Juarez v. 

State, 308 S.W.3d 398, 399, 405 (Tex. Crim. App. 2010); see Tex. Penal Code 

Ann. § 1.07(a)(10) (West Supp. 2014) (defining conduct to mean an act or 

omission and its accompanying mental state); cf. Tex. Penal Code Ann. § 2.03(c) 

(West 2011) (stating that the issue of a defense is not submitted to the jury 

unless evidence is admitted that supports the defense). Harper was charged 

with having intentionally or knowingly caused Robinson's death by shooting him 

with a firearm and with having intentionally, with the intent to cause serious bodily 

injury to Robinson, committed an act clearly dangerous to human life by shooting 

Robinson with a firearm, which caused Robinson's death. 
that at the time he discharged his own weapon, he did not know what he was 

trying to protect his daughter from.13 

When asked whether he could not have fired a warning shot as an 

alternative, Harper acknowledged that he could have done so but said, "I asked 

him not to more than once." He also acknowledged that he had used a hollowpoint bullet and that the purpose of such a bullet is to kill. 14 Harper had bullets 

left in his gun after shooting Robinson, but he did not fire at anyone else. 

Harper admitted that he did not hear or see Robinson do anything except 

try to save his children. After he realized that his bullet had made contact with 

Robinson, Harper testified that he "just laid back down" and slumped over for his 

own protection because he did not know what was going on outside his vehicle 

and he was still sleepy. 

C. Necessity 

A necessity instruction states, in pertinent part, that conduct is justified if 

the actor reasonably believes the conduct is immediately necessary to avoid 

imminent harm. Tex. Penal Code Ann. § 9.22(1) (West 2011). This prong of the 

necessity defense requires evidence of a reasonable belief of both immediate 

13 Harper said, "I'm not sure," when asked whether he thought Robinson 

had a deadly weapon. He said, "Yes, sir," when asked, "Just like you weren't 

sure that [Robinson] meant you any harm, but you shot him anyway, right?" 

14 The Tarrant County Medical Examiner's Office firearm and tool mark 

examiner testified that a hollow-point bullet is designed to expand when it hits 

flesh. 
necessity and imminent harm. However, a defendant's sincere belief that his 

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 legally defined. Murkledove, 437 

S.W.3d at 25; see Arnwine v. State, 20 S.W.3d 155, 159 (Tex. App.—Texarkana 

2000, no pet.) ("The defense of justification based on necessity is assessed from 

the standpoint of the accused."). The penal code defines "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 Ann. § 1.07(a)(42). It defines 

"harm" as "anything 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). "Imminent," while not defined in the penal code, 

means "something that is immediate, something that is going to happen now." 

Murkledove, 437 S.W.3d at 25 (quoting Dewalt v. State, 307 S.W.3d 437, 454 

(Tex. App.—Austin 2010, pet. ref'd)). Harm is imminent when there is an 

emergency situation and avoiding that harm requires a "split-second decision" 

without time to consider the law. Id. 

As set out above, the trial court did not err by denying Harper's requested 

necessity instruction because Harper did not show that he was entitled to the 

defense. At most, he produced evidence of his generalized fear and confusion 

after the collision and produced evidence that in his fugue state, which other 

evidence in the record reflected was due to his drug use, he shot and killed an 

Me 
unarmed young man who, like others that Harper did not shoot, had tried to help 

him and his children after a catastrophic multiple-car collision. None of the 

evidence during the seven-day trial showed that Harper's shooting Robinson was 

immediately necessary to avoid imminent harm, or that an ordinary, prudent 

person in Harper's circumstances would have believed that it was. 

To the contrary, the record proves quite the opposite. The record reflects 

that Harper's belief that it was necessary to shoot and kill a person helping his 

children escape from a mangled, smoking vehicle was unreasonable as a matter 

of law. See Mays v. State, 318 S.W.3d 368, 385 (Tex. Crim. App. 2010) ("[A] 

'reasonable belief is one that would be held by an ordinary and prudent person, 

not by a paranoid psychotic."), cert. denied, 131 S. Ct. 1606 (2011); Jackson v. 

State, 50 S.W.3d 579, 595 (Tex. App.—Fort Worth 2001, pet. ref'd) (stating that 

even if appellant had been scared of his pursuer, his testimony only raised an 

issue of the necessity to continue driving, not to drive over the speed limit, 

disregard traffic control devices, and veer into oncoming lanes of traffic); see also 

Washington v. State, 152 S.W.3d 209, 212 (Tex. App.—Amarillo 2004, no pet.) 

("[T]he defendant's belief that his conduct was immediately necessary may be 

deemed unreasonable as a matter of law if the undisputed facts demonstrate a 

complete absence of immediate necessity or imminent harm."). Because the 

record reflects that Harper's use of deadly force was not immediately necessary 

and did not avoid a greater, imminent harm, a necessity instruction was not the 

law applicable to the case. See Tex. Penal Code Ann. §§ 1.07(a)(42), 9.22; 

11 
Am wine, 20 S.W.3d at 160 (observing that the existence of lawful alternatives to 

the commission of a criminal act may preclude a defendant from the defense of 

justification by necessity). We overrule Harper's first issue. 

D. Sudden Passion 

At the punishment stage of a murder trial, the defendant may raise the 

issue as to whether he caused the death "under the immediate influence of 

sudden passion arising from an adequate cause." Tex. Penal Code Ann. 

§ 19.02(d) (stating that if the defendant proves the sudden-passion issue in the 

affirmative by a preponderance of the evidence, the offense is a second-degree 

felony). "Adequate cause" means "cause that would commonly produce a 

degree of anger, rage, resentment, or terror in a person of ordinary temper, 

sufficient to render the mind incapable of cool reflection." Id. § 19.02(a)(1). 

"Sudden passion" means "passion directly caused by and arising out of 

provocation by the individual killed . . . which passion arises at the time of the 

offense and is not solely the result of former provocation." Id. § 19.02(a)(2). 

The defendant has the burden of production and persuasion with respect 

to the issue of sudden passion, and to justify a jury instruction on the issue during 

the punishment phase, the record must at least minimally support an inference: 

(1) that the defendant in fact acted under the immediate influence of a passion 

such as terror, anger, rage, or resentment; (2) that his sudden passion was in 

fact induced by some provocation by the deceased or another acting with him; 

(3) that he committed the murder before regaining his capacity for cool reflection; 

12 
and (4) that a causal connection existed between the provocation, passion, and 

homicide. Wooten v. State, 400 S.W.3d 601, 605 (Tex. Crim. App. 2013). A 

sudden passion charge should be given if there is some evidence to support it, 

even if that evidence is weak, impeached, contradicted, or unbelievable. Trevino 

v. State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003). 

However, the evidence should not be so weak, contested, or incredible 

that it could not support a finding by a rational jury. Davis v. State, 268 S.W.3d 

683, 693 (Tex. App.—Fort Worth 2008, pet. ref'd). A mere claim of fear does not 

establish the existence of sudden passion arising from an adequate cause. 

Gonzales v. State, 717 S.W.2d 355, 357 (Tex. Crim. App. 1986) (stating that for 

a claim of fear to rise to the level of sudden passion, the defendant's mind must 

be rendered incapable of cool reflection); see also Fry v. State, 915 S.W.2d 554, 

559 (Tex. App.—Houston [14th Dist.] 1995, no pet.) (stating that there must be 

some evidence of immediate provocation that led to the homicide). And 

"[o]rdinary anger or causes of a defendant's own making are not legally adequate 

causes." Hernandez v. State, 127 S.W.3d 206, 211 (Tex. App.—Houston [1st 

Dist.] 2003, pet. ref d). 

As set out above, none of the evidence 15 showed that Harper experienced 

"sudden passion" as defined by the statute, provocation by Robinson—who tried 

15 During the punishment phase, the trial court admitted evidence about 

Nasir, the motorist who died from the collision. The jury also heard from another 

witness at the scene who saw Harper when the police removed him from the 

SUV. The witness testified that Harper appeared belligerent and under the 

13 
to do no more than the other would-be rescuers that Harper did not shoot—or an 

adequate causal connection between the provocation, passion, and homicide. 

See, e.g., Davis, 268 S.W.3d at 698 ("Davis points to no evidence in the record 

indicating that [the deceased] acted in a manner that would produce an emotion 

sufficient to render the mind of a person of ordinary temper incapable of cool 

reflection."); see also Ayers v. State, 606 S.W.2d 936, 940 (Tex. Crim. App. 

1980) (concluding that appellant's medical incapacities—hypertension, coronary 

artery disease, heart enlargement, and periods of semi-consciousness—had no 

bearing on the evaluation of his response to provocation); Lucas v. State, No. 12-

13-00378-CR, 2015 WL 1061498, at *3 (Tex. App.—Tyler Mar. 11, 2015, no pet.) 

(mem. op., not designated for publication) ("The record indicates that Appellant 

was mentally ill, intoxicated, and hallucinating when he killed Cobb, but these 

factors are not applicable in determining adequate cause."); Miller v. State, 770 

S.W.2d 865, 867 (Tex. App.—Austin 1989, pet. ref'd) (stating that the statute 

does not contemplate what would constitute adequate cause from the 

perspective of an individual with impaired impulse control because "[t]he test is 

the response by a person of ordinary temper"). Therefore, the trial court did not 

err by denying the requested instruction, and we overrule Harper's second issue. 

influence, that Harper shouted profanities, and that when he took a photo of 

Harper, he heard Harper say, "I'd fucking do it again." Harper's older sister 

testified for the defense. 

14 
IV. Mistrial 

In his remaining two issues, Harper argues that the trial court erred by 

denying his request for a mistrial based on the prosecutor's statements, which he 

contends were made solely with the intent to inflame the minds of the jurors. 

Except in extreme cases, when it appears that the question is "'clearly 

calculated to inflame the minds of the jury and is of such character as to suggest 

the impossibility of withdrawing the impression produced on their minds," asking 

an improper question may be generally cured or rendered harmless by a 

withdrawal of the question and an instruction to disregard. Gonzales v. State, 

685 S.W.2d 47, 49 (Tex. Grim. App.) (quoting White v. State, 444 S.W.2d 921 

(Tex. Grim. App. 1969)), cert. denied, 472 U.S. 1009 (1985). To cause a 

reversal, the question must be obviously harmful to the defendant. Id. 

The determination as to whether a given error calls for a mistrial must be 

made by examining the particular facts and circumstances of each case. 

Hernandez v. State, 805 S.W.2d 409, 414 (Tex. Grim. App. 1990), cert. denied, 

500 U.S. 960 (1991). When the trial court sustains an objection and instructs the 

jury to disregard but denies a defendant's motion for mistrial, the issue is whether 

the trial court abused its discretion by denying the request for mistrial. See 

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). In determining 

whether a trial court abused its discretion by denying a mistrial, we balance three 

factors: (1) the severity of the misconduct (prejudicial effect); (2) curative 

measures; and (3) the certainty of conviction absent the misconduct. Id.; Mosley 

15 
v. State, 983 S.W.2d 249, 259 (Tex. Grim. App. 1998) (Op. on reh'g), cert. 

denied, 526 U.S. 1070 (1999). 

In his third issue, Harper complains that he should have received a mistrial 

when the prosecutor referred to Robinson's death as an execution during 

Arlington Police Detective David Szatkowski's testimony: 

Q. Okay. Now, this revolver, State's Exhibit 96, that Mr. 

Harper had that day holds five rounds, right? 

A. Yes, ma'am. 

Q. At a time. He used one of those rounds to execute 

Clarence Robinson, correct? [Emphasis added.] 

[Defense counsel]: Your Honor, I'm going to object to 

the term "execution." 

[Trial Court]: That's sustained. 

[Defense counsel]: And I'd ask the jury to disregard 

such comment. 

[Trial Court]: Rephrase it, [prosecutor]. 

[Prosecutor]: Thank you. 

Q. [Prosecutor]: He used one of the rounds— 

[Defense counsel]: Excuse me. Excuse me. Judge, I 

would respectfully request the Court to ask the Jury to 

disregard the comment. 

[Trial Court]: Jury will disregard it, the word. 

[Defense counsel]: And as required by law, I'd ask for a 

mistrial. 

[Trial Court]: Okay. That's denied. 

iE 
Q. He used one of those rounds to shoot Clarence Robinson, 

correct? 

A. Yes. 

A few minutes earlier, Detective Szatkowski had testified that Robinson 

had died on December 14, 2011, because of a gunshot wound "to the head." 

The detective then testified that he did not see Harper shoot Robinson but that 

the weapon—which still contained four live rounds of ammunition—was 

recovered from Harper, along with ten additional rounds, when he was taken into 

police custody. 

The Tarrant County chief medical examiner testified that the gunshot 

wound was to the left side of the forehead, around four inches below the top of 

the head and three inches in front of the left ear, and the autopsy diagram of the 

wound's location showed it just above the left eye. He testified about stippling, 

which is produced by burning and unburned particles of gunpowder that leave 

the gun's muzzle and pinch or hit the body surface and embed in the skin "if the 

target is within the range," which he said would be within three or four feet. 

Robinson had stippling on the side of his head from the gunshot. 

Based on the above, the record reflects that Harper shot Robinson in the 

head from within a three- or four-foot distance and killed him without justification. 

In light of the trial court's instruction to disregard, Detective Szatkowski's 

preceding testimony that Robinson had died of a gunshot wound to the head, 

and the certainty of Harper's conviction based on the undisputed facts of this 

17 
case, we cannot conclude that the probable effect of the use of the term 

"execute," as opposed to "shoot," albeit inappropriate, adversely affected 

Harper's rights so as to present reversible error. See Jackson v. State, 649 

S.W.2d 317, 321-22 (Tex. App.—Amarillo 1983, no pet.) (holding that 

prosecutor's reference to appellant as "garbage" did not warrant mistrial when 

the evidence clearly showed his guilt as charged in the indictment). We overrule 

Harper's third issue. 

Finally, Harper contends that the prosecutor asked other inflammatory 

questions and made inappropriate sidebar comments. However, Harper admits 

that he did not object to any of these additional questions and comments. 16 

Because these complaints were not preserved for our review, see Tex. R. App. 

P. 33.1, we overrule his final issue. See Ford v. State, 305 S.W.3d 530, 532 

(Tex. Crim. App. 2009) ("If an issue has not been preserved for appeal, neither 

the court of appeals nor this Court should address the merits of that issue."). 

V. Conclusion 

Having overruled all of Harper's issues, we affirm the trial court's judgment. 

1st Bonnie Sudderth 

BONNIE SUDDERTH 

JUSTICE 

16 Despite rule of appellate procedure 33.1's requirement that error be 

preserved, Harper nonetheless complains that the trial court should have 

intervened to grant him a mistrial without requiring him to object, request any 

instructions to disregard the inflammatory remarks, or request the mistrial. 

iE] 
PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ. 

DELIVERED: July 2, 2015 

19 
LWA 

COURT OF APPEALS 

SECOND DISTRICT OF TEXAS 

FORT WORTH 

NO. 02-14-00189-CR 

Thomas Lester Harper § From Criminal District Court No. 2 

§ of Tarrant County (1318353R) 

V. § July 2,2015 

§ Opinion by Justice Sudderth 

The State of Texas § (p) 

JUDGMENT 

This court has considered the record on appeal in this case and holds that 

there was no error in the trial court's judgment. It is ordered that the judgment of 

the trial court is affirmed. 

SECOND DISTRICT COURT OF APPEALS 

By Is/ Bonnie Sudderth 

Justice Bonnie Sudderth 
APPENDIX "B" 

MOTION FOR REHEARING 
IN THE COURT OF APPEALS 

FOR THE SECOND DISTRICT OF TEXAS 

FORT WORTH, TEXAS 

NO. 02-14-00189-CR 

THOMAS LESTER HARPER, 

APPELLANT From Criminal District Court No.2 

11 

ff of Tarrant County 

VS. 11 

ff Trial Court Case No.1318353R 

Opinion by Justice Sudderth 

THE STATE OF TEXAS, July 2, 2015 

APPELLEE 

APPELLANT'S MOTION FOR REHEARING 

TO THE HONORABLE COURT OF APPEALS: 

COMES NOW, Thomas Lester Harper, Appellant in the above-styled and 

numbered appeal, and, pursuant to Rule 49.5(c) of the Texas Rules of Appellate Procedure, 

hereby files this Motion for Rehearing, and asks the Court to reconsider and withdraw its 

opinion of July .2, 2015 and shows as follows: 

1. The Court in its opinion cites Murkeldove v. State, 437 S.W.3d 17 (Tex. App.— Ft. 

Worth 2014) for the premise that Appellant's requested instruction on necessity 

defense was properly denied by the trial court because an accused must have a 

sincere belief that the conduct is necessary to avoid imminent harm and that denial 

is proper if the undisputed facts demonstrate that there is a complete lack of 

necessity as a matter of law. 

2. Appellant believes that the facts in Murkiedove are distinguishable. In Murkeldove, 

Appellant went to a residence with a co-defendant to commit a burglary. 

Appellant's Motion for Rehearing Page 1 
Murkiedove knew that the co-defendant intended to kill the victim if the victim 

was present. The co-defendant shot and killed the victim and Murkiedove was 

convicted of capital murder as a party. Murkiedove urged that he raised the issue 

of necessity in Murkiedove 's confession. 

3. In the current case, Appellant testified that he shot and killed the victim because he 

felt it was immediately necessary to protect his children. The court in its opinion 

states that Appellant testified that his children were in danger and that no one was 

listening to him. 

4. No matter how weak, the necessity instruction must be given. 

5. Certainly other witnesses testified that the children were not in any apparent 

danger. Appellant made several concessions under cross, but there was evidence 

directly from Appellant that he believed he needed to shoot the victim because he 

felt like his children were in danger. 

6. It may appear weak, but it was some evidence and the requested instruction of 

necessity should have been given. Juarez v. State, 308 S.W.3d 398.399 (Tex. 

Crim. App. 2010). 

7. Appellant respectfully requests the court to reconsider its opinion ruling against 

Appellant and withdraw its opinion, reverse and remand the case to the trial court. 

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully requests the court 

to reconsider its opinion of July 2, 2015 and prays the court to withdraw its opinion, reverse 

and remand the case to the trial court. 

Appellant's Motion for Rehearing Page 2 
Respectfully submitted, 

RICHARD A. HENDERSON P.C. 

100 Throckmorton Street, Suite 540 

Fort Worth, Texas 76102 

Telephone: 817-332-9602 

Facsimile: 817-335-3940 

richard ,rahenderson. corn 

r&~1il- DE4—, 

Richard A. Henderson 

State Bar No. 09427100 

ATTORNEY FOR APPELLANT 

CERTIFICATE OF SERVICE 

A true copy of the Appellant's Motion for Rehearing has been electronically served 

on opposing counsel, Ms. Debra A. Windsor, Assistant Criminal District Attorney, 

Post-Conviction, Tarrant County District Attorney's Office, 401 W. Belknap Street, Fort 

Worth, Texas 76196, via the State's e-mail address, coappellatealerts@tarrantcounty.com 

and mailed, U.S. Regular Mail to Appellant, ThomLester Harper, TDCJ #0193 1894, 

Ellis Unit, 1697 FM 980, Huntsville, Texas 7;-34'-3 o the 45 dy o/J4y 2015. 

Appellant's Motion for Rehearing Page 3 
APPENDIX "C" 

ORDER ON MOTION FOR REHEARING 
COURT OF APPEALS 

SECOND DISTRICT OF TEXAS 

FORT WORTH 

NO. 02-14-00189-CR 

THOMAS LESTER HARPER APPELLANT 

V. 

THE STATE OF TEXAS STATE 

FROM THE CRIMINAL DISTRICT COURT NO.2 OF TARRANT COUNTY 

TRIAL COURT NO. 1318353R 

ORDER 

We have considered "Appellant's Motion for Rehearing." 

It is the opinion of the court that the motion for rehearing should be and is 

hereby denied and that the opinion and judgment of July 2, 2015, stand 

unchanged. 

The clerk of this court is directed to transmit a copy of this order to the 

attorneys of record. 
SIGNED July 30, 2015. 

Is! Bonnie Sudderth 

BONNIE SUDDERTH 

JUSTICE 

PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ. 

2