Spakes v. State, 0087-95

• Decision Date: 10 January 1996
• Docket Number: No. 0087-95,0087-95
• Parties: Harry Jack SPAKES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 597

913 S.W.2d 597

Harry Jack SPAKES, Appellant, v. The STATE of Texas, Appellee.

No. 0087-95.

Court of Criminal Appeals of Texas En Banc.

Jan. 10, 1996.

William E. Kelly, III, Canyon, for appellant.

John L. Owen, Asst. Dist. Atty., Canyon, Jeffrey L. Van Horn, Asst. State's Attorney, Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

A jury convicted Appellant of escape and assessed his punishment at sixty years imprisonment after finding that he was a habitual offender. This conviction was reversed because the trial court failed to submit a requested instruction on the defense of necessity. Spakes v. State, 891 S.W.2d 7 (Tex.App.--Amarillo 1994).

The State's petition was granted to determine whether a predicate to the defense of necessity, as applicable to the offense of escape, includes an attempt to surrender once the immediate threat justifying the escape has ceased. The State notes that numerous other jurisdictions have imposed this requirement based on an analysis conducted in People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110 (1975).

Texas adopted the current penal code in 1973, incorporating within it several common law defenses, including necessity and duress. V.T.C.A. Penal Code, § 9.22 (Necessity) provides that 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 prescribing the conduct; and

(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

V.T.C.A. Penal Code, § 9.02, dictates: "It is a defense to prosecution that the conduct in question is justified under this chapter," and § 2.03 states:

(a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution...."

* * * * * *

(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.

(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.

(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.

V.T.C.A. Penal Code, § 38.07, at the time this offense was committed provided:

(a) A person commits an offense if he escapes from custody when he is:

(1) under arrest for, charged with, or convicted of an offense; or

(2) in custody pursuant to a lawful order of a court.

As can be seen, "a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear." Although the State presents several cogent arguments as to why an attempt to surrender should be a prerequisite to applying a necessity defense to the offense of escape, ^* these arguments are appropriate for the legislature, not for the judiciary. The plain language codifying the necessity defense evinces a legislative intent that the defense apply to all offenses unless the legislature has specifically excluded it from them. As the Court of Appeals held, "Although the test formulated in Lovercamp seems reasonable, it would be an impermissible addendum to section 9.22 requirements, in view of the language of that statute, for us to hold that the availability of the necessity defense is expressly conditioned upon the five elements set forth in Lovercamp." We therefore conclude that a person accused of escape need not present evidence of an attempted surrender before a necessity instruction is required, if some evidence otherwise complying with § 9.22 has been presented.

The judgment of the Court of Appeals is affirmed.

WHITE, J., concurs.

KELLER, Judge, dissenting.

The majority holds that an attempt to surrender is not a predicate to the necessity defense in a prosecution for the offense of escape. The majority reaches this conclusion by reasoning that, because escape is not a continuing offense, an inmate's departure may be justified merely by the circumstances that exist at the time he initially leaves custody, regardless of whether he attempts to return to custody after those circumstances dissipate. Under the majority's analysis, a convict is free to stay at large forever, so long as his initial departure was immediately necessary to avoid imminent harm. I disagree.

The necessity defense consists of three elements, all of which must be satisfied:

(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.

Texas Penal Code § 9.22. While the majority opinion clearly addresses the first and third elements, I believe that it has failed to properly take into account the second element. The second element requires an assessment of the policy reasons for taking a particular action and balances the interests of society versus those of the individual. In balancing these competing interests, I would submit that the harm the individual seeks to avoid in escaping custody never outweighs the harm the law seeks to prevent unless the individual returns (or attempts to return) to custody after the danger motivating his departure has passed.

The majority apparently believes that the balancing of interests can take into account only the facts that exist at the time the escape is complete. But, nothing in the language of the second element requires that the balancing of interests be limited to the timeframe in which the offense occurs. There exist examples in the Penal Code that expressly contemplate a defense being established by events occurring after the completion of an offense. The renunciation defense to solicitation must occur after all the elements of the solicitation offense are satisfied. See Texas Penal Code § 15.04(b). Moreover, the provision reducing the punishment for kidnapping if the victim is released in a "safe place" has been analyzed like a defense. Williams v. State, 851 S.W.2d 282, 286 (Tex.Crim.App.1993). ¹ Obviously, the "release in a safe place" must occur after the elements of the kidnapping are complete. ²

The necessity defense is really the ultimate catch-all provision for criminal defenses. It is used to judge extreme situations that ought to constitute a defense but have not been specifically provided for by the legislature. While it may not always be appropriate to look beyond the timeframe of the offense itself when assessing competing interests, when it is appropriate, we should not hesitate to do so. I believe that this case presents the latter situation.

Although the issue appears to be one of first impression in Texas, ³ the Court's opinion is at odds with the majority of jurisdictions that have addressed the issue. Most jurisdictions (thirty) require an attempt to surrender or report to the authorities (assuming there is time to do so) as a precondition for asserting justification-type defenses: California, People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110, 115 (4 Dist.1974) (necessity); Federal, United States v. Bailey, 444 U.S. 394, 413, 100 S.Ct. 624, 636, 62 L.Ed.2d 575 (1980) (necessity and duress); Alabama, Dietz v. State, 474 So.2d 120, 125-126 (Ala.Crim.App.1984), reversed on other grounds, 474 So.2d 127 (Ala.1985) (duress); Alaska, Wells v. State, 687 P.2d 346, 349-350 (Alaska App.1984) (necessity); Arizona, State v. Wolf, 142 Ariz. 245, 689 P.2d 188, 191 (App.1984) (duress); Colorado, People v. McKnight, 626 P.2d 678, 681 (Colo.1981) (choice of evils); Connecticut, State v. Woods, 23 Conn.App. 615, 583 A.2d 639, 642 (1990) (necessity); Delaware, Johnson v. State, 379 A.2d 1129, 1131 (Del.1977) (justification); Florida, State v. Alcantaro, 407 So.2d 922, 925 (Fla.App. 1 Dist.1981), pet. for review denied, 413 So.2d 875 (Fla.1982) (necessity or duress); Hawaii, State v. Horn, 58 Haw. 252, 566 P.2d 1378, 1379-1380 (1977) (choice of evils also known as necessity) ⁴; Iowa, State v. Reese, 272 N.W.2d 863, 866 (Iowa 1978) (necessity); Kansas, State v. Irons, 250 Kan. 302, 827 P.2d 722, 726 (1992) (compulsion); Louisiana, State v. Boleyn, 328 So.2d 95, 97 (La.1976) (necessity); Maryland, Craddock v. State, 47 Md.App. 513, 424 A.2d 168, 169 (1981) (necessity and duress); Mississippi, Corley v. State, 536 So.2d 1314, 1317-1318 (Miss.1988) (necessity); Montana, State v. Ottwell, 240 Mont. 376, 784 P.2d 402, 404 (1989) (necessity); Nebraska, State v. Reed, 205 Neb. 45, 286 N.W.2d 111, 114 (1979) (necessity or duress); Nevada, Jorgensen v. State, 100 Nev. 541, 688 P.2d 308, 309-310 (1984) (necessity); New Jersey, State v. Saxon, 226 N.J.Super. 653, 545 A.2d 255, 256 (L.1988), aff'd sub. nom., State v. Morris, 242 N.J.Super. 532, 577 A.2d 852 (A.D.), cert. denied, 122 N.J. 408, 585 A.2d 405 (1990) (duress); New York, People v. Brown, 68 A.D.2d 503, 417 N.Y.S.2d 966, 972-973 (N.Y.A.D., 2 Dept.1979) (justification also known as necessity); North Carolina, State v. Watts, 60 N.C.App. 191, 298 S.E.2d 436, 437 (1982) (duress); Ohio, State v. Cross, 58 Ohio St.2d 482, 485-489, 391 N.E.2d 319, 322-323 (1979) (necessity or duress); Oklahoma, Johnson v. State, 745 P.2d 1193, 1193 (Okl.Crim.App.1987) (duress or involuntary escape); Pennsylvania, Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583, 589 (1982), citing, Commonwealth v. Clark, 287 Pa.Super. 13, 429 A.2d 695, 697 (1981), citing, Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166, 1172 (...