Wilson v. State
| Decision Date | 20 June 2003 |
| Docket Number | No. 04-02-00052-CR.,04-02-00052-CR. |
| Parties | Richard <B>WILSON,</B> Appellant, v. <B>STATE</B> of Texas, Appellee. |
| Court | Texas Court of Appeals |
Opinion by: Alma L. López, Chief Justice
We grant reconsideration of this case in light of Wilson's Petition for Discretionary Review. We withdraw our opinion of April 30, 2003 and substitute the following in its place to clarify the issue of the defense of necessity.
Richard Wilson ("Wilson") was indicted for the offense of attempted capital murder of a police officer. A jury found Wilson guilty, and he was sentenced to life imprisonment. Wilson asserts five issues on appeal, contending: (1) the trial court erred in failing to grant his motion for directed verdict because the evidence was legally insufficient to sustain his conviction; (2) the evidence was factually insufficient to sustain his conviction; (3) the trial court abused its discretion when it failed to suppress evidence that Wilson had resisted being fingerprinted after his arrest on the basis that the State did not comply with the Rule 404(b) notice requirement and that such evidence was not relevant and prejudicial; (4) the trial court abused its discretion in not allowing Wilson to cross-examine the complainant officer as to information bearing on his state of mind; and (5) the trial court erred in refusing to submit the defense of necessity in the jury charge. We affirm the trial court's judgment.
Because Wilson challenges the sufficiency of the evidence, a recitation of the facts is necessary.
In the early morning hours of June 3, 2002, Officer Dale Hancock ("Hancock") made a routine traffic stop. He pulled Wilson over for suspicion of driving while intoxicated. Wilson was giving an acquaintance, Ruth Salinas ("Salinas"), a ride home. Hancock testified that he approached the driver's side of the car and asked Wilson for his license and insurance. Wilson replied that he had left them at home. Noticing that Wilson's eyes were glassy and bloodshot and that the smell of alcohol was on his breath, Hancock asked Wilson to step outside of the car to perform a field sobriety test. Hancock told Wilson to stand at the back driver side of the car so that he could check on the passenger, Salinas. While Hancock was talking to Salinas, he looked up and noticed that Wilson had moved to the back passenger side of the car where Hancock was unable to see him fully. Hancock went over to Wilson and told him to get back out in the middle of the street. When Wilson put his hand behind his back, Hancock told him to get his hand out from behind his back. Wilson complied.
Hancock told Wilson that he thought he was intoxicated, so he was going to ask him to perform a field sobriety test. In order for Hancock to perform the test, he went back to his patrol car to turn off the flashing lights. Hancock looked over his shoulder to make sure that Wilson had stayed in the same spot; however, when he looked back the second time, Wilson had again moved to the back passenger side of the car and again had his hand behind his back. Hancock turned around and walked toward Wilson, telling him to get his hand out from behind his back and to move back out into the street. As Hancock was telling him this, Wilson started backing away from him with his right hand behind his back and looking from side to side. Hancock continued towards Wilson and repeatedly told him to get his hand out from behind his back. Hancock testified that when Wilson pulled his hand out, he pointed a chrome gun at Hancock and told him he was going to kill him. As Hancock turned around to look for cover, he heard Wilson's gun "click." Hancock testified that he ran towards the driver's side of his patrol car for cover and realized that Wilson's gun had failed to fire. He then ran to the back passenger side of his patrol car. As he peered from behind his patrol car, Hancock saw Wilson "messing with his gun" as if he were trying to "put another round in his gun." Hancock repeatedly yelled at Wilson to drop his gun. Wilson raised the gun again and fired at Hancock. Hancock testified that he heard a shot fired, but he did not see muzzle fire. Hancock told him to drop the gun. Wilson started backing up, and Hancock shot at him several times. After Hancock began shooting, Wilson took off running down a fence line. Hancock ran around to the driver side of Wilson's car to check on Salinas, and told her to get down.
Two other eyewitnesses corroborated Hancock's testimony. Salinas testified that at some point after Hancock asked Wilson to get out of the car, she saw Wilson come to the front passenger side of the car, pull the gun out, and fire at the officer. After Wilson shot at the officer, Wilson ran off towards a field. Salinas had drank two 24 ounce bottles of beer that night prior to the incident. On cross-examination, Salinas stated that she heard Wilson fire three or four shots at Hancock. She also said that Hancock did not shoot at Wilson until Wilson ran.
Another eyewitness, Eleazar Guadalupe Gamez ("Gamez") testified that he saw Wilson pull out his gun first and point it at Hancock. Gamez, who had been drinking with friends since 4:00 p.m. in the afternoon, was outside when he saw that a police officer had stopped a car. He saw Wilson step out of the car. When the police officer started to walk back to his car, Gamez saw Wilson take out a gun and shoot at the police officer once or twice. Gamez stated that Wilson was shooting at Hancock from the front passenger side of his vehicle, and Hancock was hiding behind his car. He said that they were exchanging gunfire, and he could see the flash of gunfire from Wilson's gun, but not from the officer's gun.
Hancock testified that after Wilson took off, he went back to his patrol car to retrieve his flashlight and began chasing Wilson. Hancock testified that he did not shoot at Wilson while he was chasing him, and he did not recall Wilson shooting at him. Hancock lost sight of Wilson when he reached an "L" shaped corner of the fence. At this point, Hancock turned off his flashlight, turned down his radio, and slowly approached the corner. Shining his flashlight around the corner, Hancock saw Wilson limping before he disappeared between the fence and an abandoned house. Hancock moved to a position where he could see Wilson's feet protruding out from behind the house. Wilson pointed his gun again at Hancock. Hancock yelled at him to drop his gun and then fired off two more rounds in Wilson's direction. Another police officer, Officer Humble ("Humble"), came to assist Hancock. Hancock testified that when he fired the last shot, he thought he finally hit Wilson because Wilson threw the gun out in front of him. Hancock and Humble formed a V and walked towards Wilson. As Hancock continued shining his flashlight on Wilson, Humble and another police officer, Officer Doyle ("Doyle"), handcuffed Wilson. Neither Doyle nor Humble fired their weapons that night. Humble threw Wilson's .380 semiautomatic six to ten feet away so that Wilson would not be able to grab it while they handcuffed him. Humble noticed that the gun was double fed, meaning it had two live rounds simultaneously jammed in the barrel.
Several eyewitnesses testified that they saw Wilson running backward and shooting at Hancock. Gilbert Cuellar, a transport driver for Mrs. Baird's Bakery, was working the night shift the night of the incident. As he was waiting for his truck to be loaded, he heard two to three shots coming from the direction of a parking lot across the street and turned around to see who was shooting. He was approximately half a block away from the incident. He testified that he saw a black man running backward and that the man shot two to three times in the direction of a police officer who was chasing him. Cuellar saw the man run backward, pause a little, and then fire. He saw fire coming out of Wilson's gun and heard a gunshot. He then saw Wilson turn the corner and hide behind an abandoned house. When Wilson was behind the house, he saw Wilson shoot at the police officer twice and gestured for Hancock to "come on." When Wilson pointed the gun at the police officer again, Hancock shot at Wilson. Another Mrs. Baird's truck driver, Richard Ellis ("Ellis"), testified that he was standing next to Cuellar when he heard pops that sounded like fireworks. Ellis testified that when he turned around, he heard "pops" from straight ahead. He saw a man having a hard time running and saw him stop and shoot in the direction from where he was coming. He could not tell the race of the running man, but he saw sparks coming out of the gun that the man was holding. Ellis also testified that he saw the man throw something over the fence. After the man approached the abandoned house, Ellis then went inside the building.
A third eyewitness, Juan Antonio Salazar ("Salazar"), a mechanic for Mrs. Baird was outside the bakery when he heard a sound that sounded like a car "backfiring" two or three times. He rose from the picnic table where he was sitting and looked across to the St. Phillip's College parking lot, where he saw a man running though the grass. Salazar saw the man stop and shoot once in the direction of where he was running from. Salazar could not see the gun but saw fire coming out of the weapon. After Salazar saw the man shoot, he saw the man stop and turn around. Salazar stated that "it looked like he might have tossed something over the fence." Salazar saw the man go around the "shack" and the police officer shooting in the direction of the man.
At trial, the State called several witnesses regarding the evidence. Jaime Becker ("Becker") was the...
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