*1 Lydia BOWEN, Appellant, H.
The STATE of Texas.
No. PD-1873-03. Decatur, Bishop, Appel- Samuel C. lant. Appeals of Texas. Court of Criminal Lowery, County Atty., Gregory P.
4,May Atty., Aaberg, County J. Asst. Thomas Decatur, Paul, Atty., Aus- Matthew State’s tin, for State.
OPINION KEASLER, J., opinion delivered the MEYERS, PRICE, HERVEY, WOMACK, JOHNSON, HOLCOMB, JJ., joined. at her resist-
Upon the close of evidence jury trial, sought a Lydia instruction on the defense request. Af- judge trial refused this refusal, judge’s the Court firming the trial the self-defense stat- 9.31, ute, Penal demonstrated Code to exclude the neces- legislative purpose 9.22(3). sity under section We Therefore, and re- we reverse disagree. mand. History and Procedural
Factual call with an to a disturbance Responding Dep- present, advisory possible weapons Lydia arrived at uty Hamilton and be- finding Bowen outside rural home belliger- increasingly agitated and coming ag- that Bowen’s testified ent. Hamilton on him. After gression became focused Bowen, field-sobriety test on performing husband Bowen and her he informed both disorderly arresting them for that he was Hamilton intoxication. public conduct and at- trial that Bowen testified at further and head away her arm pull tempted plac- Hamilton was house when toward her the assis- on her. With ing the handcuffs *2 on self- officers, the instruction took but did submit tance of other Hamilton guilty jury a found Bowen ground in to effect the defense. After Bowen to the order pay to calm sentenced to charged, and to allow Bowen as she was restraint down. Once Bowen said that she would fine of $500. up cooperate, helped Hamilton Bowen Appeals and her to his ground
from the escorted car, Ac- patrol again where she resisted. first found The Court of Hamilton, bellig- to Bowen became cording the com- sufficiently admitted Bowen had erent, cursed, screamed, ultimately and her alleged offense to entitle mission of the him in the shin. kicked justification defense instruction.1 to the However, legislative court held that a the Bowen’s factual account differs. Bowen un- to exclude the defense purpose existed at trial that Hamilton kicked out testified court held der the facts of this case. The takedown, legs executing her the caus- 9.31, stating that that Penal Code section pain. According her terrible to Bow- against another is not the use of force en, officers, the Hamil- help with of other justified an arrest or search that “to resist ground into and ton forced her face the being peace made the actor knows is pinned her his knees. admit- with Bowen though ... or even ted to could not struggling because she unlawful,” provides legislative search is breathe. also stated screamed for She she availability to of a support exclude help and that she was hurt. After re- The court concluded defense. her, straining Bowen further testified that question no sur- that because there was directly the officers lifted her from the ar- being was rounding whether Bowen ground using only to her feet the hand- was a rested or that she knew Hamilton cuffs her forearms. Bowen felt 9.31(b) officer, precluded the her “arm popped had of the socket” as justification for the defense of as being a result of raised in that manner. resisting arrest offense.2 The Court of officer, Although admitting kicking judge properly that the trial Appeals held Bowen contested that it occurred while she necessity de- refused to submit Bowen’s being ground, was lifted from light holding, fense instruction. being placed patrol car. She also petition for discretion- granted we kicking contested that was intended ary review. prevent Hamilton taking from her into custody. alleged kicking She that the was Analysis response pain to the lifted Penal Code section 9.22 states: attempting regain this manner and balance. justified is if: Conduct (1) reasonably the actor believed charged with
Bowen was necessary to avoid imminent conduct rest, search, transportation by using harm; officer. At the close evidence, urgency of sought jury desirability instruc- clearly outweigh, harm ac- avoiding tion on self-defense and ordinary standards of reason- judge cording The trial re- defense of instruction, ableness, prevent- sought the harm be fused to submit the Id. at 298. 1. Bowen v. App.-Fort Worth conduct; proscribing attempted ed the law use of force than nec- essary.4 9.31(c) contends that State “since (3) a legislative purpose to exclude the resisting arrest to an restricts officer’s justification claimed for the conduct does *3 of then it must abuse force restrict resist- plainly appear.3 otherwise arrest, a And as whole. since the argues Ap- that the State Court in underlying resisting offense this case is necessity peals properly restricted the de- § §by then 9.22 is restricted 9.31 application and fense’s invites this Court However, precedent proper as well.” availability necessity restrict the of the statutory prevent construction us from according the circumstances a taking such restrictive view of the neces- presented sug- in each case. The State sity justification. This has had sev- gests analysis begins proper opportunities interpret eral section underlying charged resisting offense of 9.22(3) enactment in In since its 1973. by argu- rest defined section 38.03. The language each looked to the we ment continues that the use of force in charged offense to determine whether a by an arrest is limited section plainly the ne- legislative purpose excludes 9.31, which provides part: justification. cessity The use of force to resist an arrest or State, Vasquez v. we looked to the justified: search is not statutory charged language.5 offense’s
There, we referred to the offense’s statute
“[tjhe legislature
and held that
has not
(2) to resist an arrest or search that the
necessity
as a
excluded
peace
actor knows is
made
a
possession
defense to
of a
the offense
though
officer ...
even
the arrest or
firearm a felon.”6 Without
recitation
unlawful,
search is
unless the resistance
facts,
of the
v.
we held
Johnson
State
(c);
is lawful under Subsection
in a
that a
defense is available
prosecution
carrying
for an unlawful
(c) The use of force to resist an arrest
46.02.7
weapon offense under
justified:
or search is
State,8
Overruling Roy v.
we disavowed
(1) if,
before the actor offers
resis-
permitting
notion that
the defense of ne
tance,
peace
...
or at-
cessity
uses
the intent of an of
would violate
therefore,
tempts
was,
to use
force than neces-
tanta
fense’s statute and
search;
sary to make the arrest or
to exclude
legislative purpose
mount to
the defense.9
degree
when and to the
the actor
State,
reasonably
the force is immedi-
v.
we
recently,
Spakes
believes
Most
interpreta-
ately necessary
protect
again
plain-language
himself
utilized a
defining
officer’s ... use or
tion of section 9.22 and the statute
State,
(Vernon 2004).
§
9.22
7. Johnson v.
650 S.W.2d
Ann.
grounds,
Crim.App.1983),
on other
overruled
(Vernon
9.31(b)
(c)
§
Tex.
Ann.
Pen.Code
—
(Tex.Crim.App.
Boget
escape predicate has ceased is a for a (c) (d), provided as Subsection Except After instruction’s submission.11 an offense under this section is Class noting escape elements A misdemeanor. 38.07,
defined under section we (d) An offense under this section is a purpose no apparent legislative there was if the actor felony degree of the third *4 justification. to exclude We further deadly weapon uses a to resist the plain language codifying noted that “[t]he rest or search.14 necessity legislative evinces a defense necessity not limit the Section 38.03 does apply intent that the defense to all of- legislative application defense’s because legislature specifical- fenses unless the has not purpose to exclude the defense does ly it excluded from them.”12 While the face, in plainly appear its text. On its we Spakes arguments raised State valid as glean any legislative purpose cannot clear why necessity defense be should necessity is not indicating that the defense limited, arguments appropriate these were available. legislature, judiciary.
for the
not the
We
argument
that the ne
State’s
statutory language pre-
now turn to the
cessity
availability
defense’s
must be
sented
this case.
light
viewed in
of section 9.31 must also
necessity
ignores
fail because it
begin by noting
We
section 9.22’s
separate
self-defense are
defenses.15 The
plain language indicates that the defense
to link
attempts
State
the two defense
necessity may
every
of
be
applicable
of force.
together by
statutes
Bowen’s use
specifically
by
case unless
excluded
the However,
merge
conduct
Bowen’s
does
legislature.13 To
a leg
determine whether
provisions
single,
into a
the two defense
purpose
islative
exists to exclude the de
of
unified defense.
Bowen’s use
While
fense,
defining
we
on the statute
focus
limit
ability
to invoke self-
may
charged offense. Section 38.03 defines the
necessity
it does not exclude a
resisting
offense of
arrest:
defense to a
arrest offense as a
(a)A person commits an offense if he
recognized
matter of
law. We have
intentionally prevents or
obstructs
independence
separate
defenses
person
he knows is a
officer or a holding that a defendant is entitled to the
person acting
pres-
every
officer’s
issue raised
submission of
defensive
evidence,
may
if
effecting by
ence and at his direction from
even
the defense
arrest, search,
transportation
of be inconsistent with other defenses.16 We
31;
State,
(Tex.Crim.
Boget, 74
at
John
Spakes
10.
v.
self of force.2 appellant’s regarding precisely evidence the violent how Officer Hamilton arrested pain nature of the arrest and the caused as appellant hotly deciding contested. was given a result could be full effect submitting whether the trial court erred requirement. context of that self-defense instructions on a courts not, example, The evidence did show any look to there is evidence that whether infirmity that had peculiar some that defense.2 raises all of the elements of condition, officer, unknown to the that Thus, only to we look the evidence would have made the officer’s reasonable supports submission of instructions on self- to appellant’s safety. conduct a threat Un- necessity. defense and circumstances, appellant’s der the evidence knew Appellant testified she Officer nothing raised more than the issue of self- her, attempting Hamilton was to arrest unnecessary defense to the use of force. but she also testified that the trial Consequently, court did not err * so, Hamilton, in doing Officer declining give instruction on the de- legs” “kicked out her he execut- fense of “takedown”; pushed ed a then he her dirt; COCHRAN, J., face into the dissenting. *
I She had not used majority that the statu- tory legs him before he kicked her defenses of self-defense under Texas Code, 9.31, her; Penal from under * mutually under section 9.22 are exclu- kicking legs forcing His her sive in the context of a resisting arrest pain; great into the dirt caused her *6 However, prosecution. I think that do not * struggled because she could not She appeals they the court of that said were.1 dirt; breathe with her face Rather, both the trial court and court * (and Officer Hamilton another offi- of appeals given specific stated that cer) up then lifted her from the particular evidence this appellant’s holding only and ground the handcuffs wholly encompassed by defense was forearms; her trial court’s I instructions on self-defense. * lifting with that The officers’ use of force in conclusion therefore respectfully disagree majority’s up her this manner made her arm socket; holding. pop out of the State, 82, 9.31(c): 678 S.W.2d Thomas v. (trial failing Crim.App.1984) court erred in to The use of force resist an arrest or search is justified: requested charge of neces submit on defense if, resistance, (1) Thomas, any before the actor sity). gen offers this Court set out the (or person acting at his law: eral statement of the direction) attempts greater uses or to use that a defendant is entitled It is axiomatic necessary force than to make the arrest or on to an affirmative defensive instruction search; and regard- every issue raised the evidence degree and to the the actor reason- feeble, strong, unim- less of whether it is ably immediately believes the force is neces- contradicted, peached, or and even if the sary protect against himself offi- opinion the testimo- trial court is of the (or person’s) attempted cer’s other use or use ny to belief. is not entitled necessary. force than Id. at 84. See Bowen (Tex.App.-Fort Worth n She kicked at Officer Hamilton to denial of instruction because of stop lifting up
make him her and hold appellant’s specific testimony. The court manner. painful her this appeals noted that appellant’s testimony The of all of thrust the trial court stated that did not [it] against was that she did not use force feel that the facts the case raised the Officer Hamilton until he used unneces- that self-de- excessive, sary, very painful force fense was the appropriate defensive sub- byit unrea- against using her. He started involving mission under the evidence physical sonable force to effect her arrest against police officer.4 only to herself. protect and she reacted appeals upheld The court of the trial testimony clearly an This raises issue court’s assessment of the evidence and 9.31(c).3 self-defense under subsection it stated that did “not believe that this 9.31(b), however, explicitly Section states [that admission she kicked the officer with- her to arrest] out intent to resist entitles of force another is not use submission of the defense under justified ... or resist search case.”5 facts that the actor is made knows officer, police ... unless the resistance Appellant’s position which the ma- —with (c). justified is under Subsection jority agrees that “I used force —is Thus, has, in legislature no uncertain Hamilton’s use of excessive force Officer terms, justified in stated that one is not arrest, simply stop not to but resist using force to resist an arrest unless the Therefore, I am entitled to an in- pain. justified “resistance” is under subsection necessity.” argument This struction on (c). (c) Subsection section pain” too much. proves “Stopping testimony invoked and that is the with injury” from the officer’s “preventing the judge the able trial very purpose use of excessive force is the jury. instructed the of the of self-defense ap- court of judge Both the trial and the court of arrest.6 As the noted, appeals very peals aptly were to limit their careful *7 reasonable, 9.31(c) perfectly the use 3. Subsection of the Texas Penal Code who resists of provides police non-excessive force the officer be- partic- this cause this reasonable force causes The use of force to resist an arrest or search is great pain although defendant it would ular justified: ordinary physical if, resistance, person a of fit- (1) not cause before the actor offers (or pain. ness She claims that the defense of person acting peace the at his direction) necessity does not. attempts greater to use exists for this situation. It uses or situation, necessary simply force than to make the arrest or defendant is In that the search; guilty and a she is not "inten- of crime because degree when and to the the actor reason- tionally” preventing a officer from ef- ably immediately believes that force is neces- fecting by using against force the an arrest sary protect himself the offi- example, might have officer. For (or person’s) attempted use or use cer's other using per- was testified that Officer Hamilton necessary. greater force than fectly pulling force in her arms reasonable She, how- behind her back to handcuff her. at 4. 117 S.W.3d ever, and the mere has horrible bursitis paroxysms touching into of her arm sent her at 5. Id. instinctively against pain. She this reacted excruciating pain by away, kicking argu- pulling Appellant compelling also makes out, about, thrashing spitting, concerning "eggshell” defendant or whatever. ment the said, Accepting Appellant’s argument might would That de- any person allow to obtain submission of resisting to a for apply prosecution fense upon strug- defense based intentionally arrest? the defendant When gle involving use of a police knowingly resists arrest because he person they officer when that are knows higher public duty perform has a which arrest, being placed later performed cannot be if he is arrested: claiming only trying he or she was stop passenger-laden defendant must ¡from avoid hurt.7 crashing train into rock on the track; he must save the children from precisely practical, though per- That is unintended, drowning floating on a raft that is down haps majority’s effect of the river; holding precisely this case. And it is he his wife to get the swollen must that reason that I cannot hospital she their child before has first majority. Legislature explicitly re- car; in the backseat of the and so forth.11 jected position by enacting subsection words, other is a harm 9.31(b) specifically precludes any separate independent that is from the justification for the use of force in use of force to resist arrest and “the desir- except set out ability urgency avoiding the harm 9.31(c). subsection wreck, train drowning, [the the back-
Necessity, hand, delivery] clearly outweigh on the seat ... other is a “choice evils” defense.8 The sought prevented by defendant harm to be the law intentionally knowingly or commits a crim- [resisting proscribing the con- arrest] inal offense to greater avoid a or evil duct.” harm. To invoke such a points As Professor LaFave pressure “the operate must upon the mind The defenses of self-defense and defense of the defendant upon rather than his body.”9 of others are also related to the defense The rationale behind this defense necessity, justifying is that “the intentional homi- ought promote law higher bodily achievement of cide or the intentional infliction of values at the ex- values, pense injury necessary lesser and sometimes cases where it is of, greater good to, for society prevent injury will be accom- save the life or to plished by violating the literal language of the defendant or another. It has been the criminal law.”10 said self-defense and defense of oth- prevent
This is not conduct that is intended to 7. Id. at 296-97. arrest, “pain it is avoidance” conduct which denies an element of the offense: the generally, 8. See R. Wayne LaFave, Substantive prevent intent to obstruct officer from (2d ed.2003). Criminal Law 10.1 *8 effecting an arrest. For this one special jury no needs instruction because it is Id., 10.1(a), § at 117. crime, the denial of an element of the not the "confession and avoidance” of an element of 10. Id. at 118. Appellant testify the crime. did not that she "eggshell” was an defendant or that Officer 11. Professor LaFave sets out numerous exam- only Hamilton used reasonable force. But to ples appropriate invocation testimony the extent that her indicated that LaFave, "choice of evils” defense. only by "pain her conduct was motivated 10.1(c), § avoidance,” at 121-24. prevent not an intent to rest, simply denying she is still one of the using 9.22(2). State's essential elements force with the § prevent intent or obstruct her arrest. law of neces- part ers constitute of the relatively has fixed
sity which attained
rules.13 is, of self-de-
That of the
fense is a codification of a subset
necessity defense the use permits spe- under whatever another legis-
cific circumstances are set speci- The Texas has Legislature
lature. one under which
fied circumstances
may intentionally force to resist use 9.31(c). And, in subsection subsection
9.31(b), it has limited the inten- explicitly use of force resist an arrest
tional in subsec-
only those circumstances set out (c).
tion and the statutory provisions these
Given in this I with
evidence must appeals
the trial court and court of was not entitled
both separate instruction on the defense I, therefore, respectfully dis-
sent.
Danny BIBLE, Appellant, Paul Texas. STATE of
No. AP-74713. of Texas. of Criminal
4,May Id., 10.1(c) specific provisions precluded from LaFave Professor these at 121. *9 general provision justifying that “when in the criminal notes his use of force under the ” specifically comprehensively code 'deals competing Id. n. 24 provision for harms.’ self, third Crocker, with the use of force in defense (Me. (quoting State v. 506 A.2d premises,' persons, and a defendant ‘who 1986)). present effective defense unable