Perry Lee Penning v. State
03-14-00579-CR
| Tex. App. | Mar 2, 2015Background
- On June 6, 2012, Perry Penning was charged with Class B misdemeanor disorderly conduct for allegedly displaying a firearm in a public place in a manner calculated to alarm; a jury found him guilty in May 2014.
- Incident facts: after a road‑rage encounter on Highway 183, Penning exited his vehicle, walked toward motorist Jerod Hill, and (per Hill) pulled a gun and yelled a threat; Hill fled and later identified Penning to police.
- Police confirmed Penning was armed, observed a quick arm movement toward the weapon, seized a loaded handgun, and arrested him.
- At trial Penning testified he never intentionally displayed the gun, that it remained in his holster and that at most "less than half an inch of barrel and maybe a piece of holster" might have been visible; he denied intending to display it.
- Defense requested jury instructions on self‑defense and necessity (and public duty); the trial court denied the self‑defense and necessity instructions.
- Penning appealed, arguing his testimony satisfied the confession‑and‑avoidance doctrine so that the jury should have been instructed on self‑defense and necessity; the State argued the testimony was speculative and did not admit the act or requisite mental state.
Issues
| Issue | Penning's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Penning's testimony triggered the confession‑and‑avoidance doctrine so a self‑defense instruction was required | Penning testified (while denying intentional display) to facts that could be read as an admission that the gun was presented or visible, and he needed a self‑defense instruction | Testimony was a categorical denial of display and of intent; any suggestion that a sliver of barrel or holster may have been visible was speculative and not an admission of intentional/knowing display | Trial court did not err; no self‑defense instruction required |
| Whether Penning's testimony triggered the confession‑and‑avoidance doctrine so a necessity instruction was required | Penning’s testimony about the encounter (and fear) could support a reasonable belief that display was necessary to avoid imminent harm | Juarez and related precedent require an admission of the act and the mental state; Penning neither admitted the act nor the requisite mental state—only speculated | Trial court did not err; no necessity instruction required |
Key Cases Cited
- Juarez v. State, 308 S.W.3d 398 (Tex. Crim. App. 2010) (confession‑and‑avoidance requires admission of the act and mental state before a defensive instruction is warranted)
- Cornet v. State, 359 S.W.3d 217 (Tex. Crim. App. 2012) (discussed in relation to admission vs. denial; Court did not decide the exact issue Penning invokes)
- Krajcovic v. State, 393 S.W.3d 282 (Tex. Crim. App. 2013) (defensive evidence cannot be based on speculation or hypothetical scenarios)
- Shaw v. State, 243 S.W.3d 647 (Tex. Crim. App. 2007) (trial courts must apply common sense in determining reasonable inferences that warrant defensive instructions)
- Wilson v. State, 777 S.W.2d 823 (Tex. App.—Austin 1989), aff'd, 853 S.W.2d 547 (Tex. Crim. App. 1993) (whether evidence raises a defense instruction is a question of law for the court)