Bush v. State
| Decision Date | 11 November 1981 |
| Docket Number | No. 05-81-00048-CR,05-81-00048-CR |
| Citation | 624 S.W.2d 377 |
| Parties | Dorothy Joann BUSH, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Danny D. Burns and Roark M. Reed, Dallas, for appellant.
Henry Wade, Dist. Atty., Stanley Keeton, Asst. Dist. Atty., Dallas, for appellee.
Before AKIN, FISH and ALLEN, JJ.
Appellant was convicted by a jury of driving a motor vehicle on a public highway while intoxicated, and the court assessed punishment at 30 days in jail, probated for one year, and a fine of $50.00. Appellant contends that the trial court committed error in failing to charge the jury on the defense of necessity and in failing to submit to the jury appellant's requested instruction that the presumption of intoxication is rebuttable. We disagree and thus affirm.
The record reflects that on the afternoon and evening of November 5, 1978, appellant and her husband were at their residence on Cedar Creek Lake about 55 miles from Dallas, celebrating the seventh month of their marriage. Appellant admits to drinking scotch with water during the afternoon and evening. The record further reflects that later in the evening while appellant and her husband were visiting with another couple living at the lake, they began arguing and continued to do so after they returned to their home. This resulted in the husband's striking appellant with his fist, causing her to fear that he might injure her severely. Appellant got into her car and drove to her place of employment, a bar located at 1618 North Industrial, where she talked to her employer and sought to locate a fellow employee named Jitter. After spending 10 to 15 minutes at the bar, appellant elected to re-enter her motor vehicle for the stated purpose of driving to Jitter's residence in Irving, Texas. Appellant was later arrested on Highway 183 within the City of Irving, Texas. A chemical breath test was administered with a resulting score of 0.23%. The appellant was arrested and charged with the offense alleged in the information.
Appellant first contends that the trial court committed reversible error in failing to charge the jury on the defense of necessity. As this is a case of first impression as it applies to the offense of driving while intoxicated, Tex.Rev.Civ.Stat.Ann. art. 670l -1 (Vernon Supp. 1980), a review of the historical antecedents of the necessity defense may prove instructive. Prior to the enactment of the Penal Code in 1974, the common law on necessity was inconsistent. In Woods v. State, 135 Tex.Cr.R. 540, 121 S.W.2d 604 (1938), the Court of Criminal Appeals held that the defense was available to a defendant who had been charged with failing to stop and render aid at the scene of an accident. The defendant testified that he failed to stop and render assistance because he had an injured passenger in his own vehicle who required immediate medical attention. In holding that it was error for the trial court to refuse to charge on the issue of necessity, the court stated:
When the issue is raised, it is incumbent on the trial judge to charge the jury fully and affirmatively as to the law applicable thereto, whether the evidence raising such issue be strong or weak, unimpeached or contradicted.
Notwithstanding this admonishment in Woods, the Court of Criminal Appeals refused to find error in the trial court denials of requested charges on necessity in two subsequent cases. In Butterfield v. State, 167 Tex.Cr.R. 64, 317 S.W.2d 943 (1958), the court, with one judge dissenting, refused to allow the defense of necessity to a defendant who had been charged with driving an automobile upon a public highway while intoxicated. The majority held:
We are aware of no such defense and decline to hold that an intoxicated driver of an automobile upon a public highway commits no offense if it be shown that a necessity existed, or that it appeared to him to be necessary that he make the journey.
In Sansom v. State, 390 S.W.2d 279 (Tex.Cr.App.1965), another driving while intoxicated case, the court cited Butterfield with approval and deemed it controlling. See generally Sullivan, The Defense of Necessity in Texas: Legislative Invention Come of Age, 16 Hous.L.Rev. 333 (1979).
It was against this background that the legislature enacted the statutory defense of necessity in 1974. Tex.Penal Code Ann. § 9.22 (Vernon 1974). Section 9.22 provides:
Conduct is justified if:
(1) The actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
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...deal with the applicability of the justification defenses to prosecutions for driving while intoxicated. These cases, Bush v. State (1981) Tex.App., 624 S.W.2d 377 and Duson v. State (1977) Tex.Cr.App., 559 S.W.2d 807--recognize the applicability of such defenses to the charge of driving un......
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...Pub. Safety v. Moore, No. 01-02-01147-CV, 2004 WL 1064781, at *3 (Tex. App.—Houston [1st Dist.] May 13, 2004, no pet.) (citing Bush v. State, 624 S.W.2d 377, 378 (Tex. App.—Dallas 1981, no writ)). We assume that Daugherty faced the threat of imminent danger while he was at the apartment com......
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...LEXIS 6066 (Tex. App.—Tyler 2006 pet. ref’d), §9:77 Burris v. State , 172 S.W.3d 75 (Tex.App.—Fort Worth 2005), §14:92 Bush v. State , 624 S.W.2d 377 (Tex.App.—Dallas 1981, no pet.), §13:25 Butler v. State , 6 S.W.3d 636 (Tex.App. Houston [1st Dist.] 1999), §11:123 – C – Cain v. State , 947......
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