*1 (cit 544, (Tex.Crim.App.1991) Arsdall, 673, v. 475 U.S. ing Delaware Van 1438, 1431, 89 L.Ed.2d 106 S.Ct. McDaniel, 181;
(1986)); Kes 3 S.W.3d at (Tex. 290, 293
terson pet.). Bearing
App.—Dallas mind, to review the
assumption in we are (1) in five factors:
error connection with testimony importance of the witness’ (2) case; whether the
the State’s (3) cumulative; presence or ab corroborating or contra
sence of evidence
dicting of the witness (4) points; of cross-
material the extent (5) permitted; otherwise
examination strength
the overall of the State’s case. Finally, light assumption
Id. factors, connection to the five
the error’s harm
we are to determine the error was Id.; Tex. beyond
less a reasonable doubt.
R.App. 44.2(a). P. assuming
Even that the cross-examina-
tion of Nellie would establish that Loredo falsely abusing
had been accused of his I
youngest daughter, beyond would find
reasonable doubt that the error exclud-
ing did contribute to this evidence punishment.
Loredo’s conviction or Id.
Thus, I would find the error harmless. I there was
Because would find
error, harmless, I but that was concur judgment.
the court’s SHUGART, Appellant,
Shawn Texas, Appellee. STATE
No. 10-98-206-CR. Texas, Appeals
Court of
Waco. 25, 2000.
Oct. *3 Reaves, West, appellant. M.
Walter Unit, Debottis, Special Gina M. Pros. Huntsville, appellee. *4 DAVIS,
Before Chief Justice Justice VANCE, and Justice GRAY. OPINION VANCE, Justice. charged with two Shugart
Shawn deadly with a aggravated counts of assault of a weapon possession and one count of See deadly weapon penal a institution. (Vernon 22.02, §§ 46.10 Ann. Tex.Pen.Code 1994). jury, a which The case was tried to one, finding of count a finding made no two, a guilty” “guilty” “not on count and did not finding Shugart on count three. punishment. jury elect to have the assess years’ him ten The Court sentenced imprisonment. asserting four appeals, He two claims issues for review. His first legally and fac- assert that the evidence is a tually insufficient to sustain verdict penal possession deadly weapon of a a shows that institution because the evidence superficial, there injuries inflicted were conduct were no threats or other assertive and weapon, of the accompanying the use weapon testimony that the there was no inflicting purpose of designed for the third bodily injury or death. His serious the court and fourth issues assert testimony concerning in excluding erred by Shugart the contents of a letter written an instruction by refusing and to submit af- will necessity. on the defense of We firm judgment.
FACTS relationship with Shugart maintained a co-inmate, inWhile Reynaldo Delarosa. obviously weak as to guilt is so room,” approached proof Dela- “day deter jury’s in the rosa, erupted. confidence argument and an Delarosa undermine although mination, proof guilt, him away, Shugart approached but walked alone, out greatly slapped him. then taken again adequate and weap- by contrary proof. Johnson weighed with a homemade stabbed Delarosa 1, (Tex.Crim.App.2000) as a metal was described on. rod, length, inches in approximately (citing four Mata (Vance, pet.) point (Tex.App. on one end with a
sharpened to —Waco An- our re J., concurring)). performing around the other end. wrapped cloth When Sessions, inmate, view, the fact Ricky attempted to due deference to give other we intervene, him and weight struck with finder’s assessment weapon as well. Delarosa and Ses- of the evidence. Id. at 13. We credibility injuries. factually treated for minor insufficient sions were both will find the evidence chest, injuries to his necessary prevent Delarosa’s were manifest only where ear injuries were to his and injustice. Sessions’ Although injuries were not life
chest.
threatening,
the nurses who treated Ses- Application
Standards
and Delarosa testified that such
sions
*5
“deadly
charge defined
The court’s
injury.
bodily
weapon could cause serious
for
“anything
adapted
made or
weapon” as
inflicting
death or serious
purpose
the
OF THE EVIDENCE
SUFFICIENCY
its
or that
the manner of
bodily injury,
issues, Shugart asserts
In his first two
capable
causing
use is
use or intended
legally
factually
the evidence is
bodily injury.”
death or serious
Serious
weapon
insufficient
establish
the
injury
bodily injury
bodily
was defined as
possessed
“deadly weapon,”
was a
where
death or
that “creates a substantial risk of
weapon
there is no evidence the
was de-
death,
dis-
permanent
serious
causes
signed
bodily
to inflict death or serious
the im-
protracted
loss or
figurement,
injury,
injuries
the
actually
inflicted
bodily
any
pairment of the function
were
serious.
organ.”
member or
Legal Sufficiency Standard
Legally
The Evidence is
Sufficient
determining
In
whether
the evi
legally
support
sufficient to
the
dence is
weapon
argues that his
verdict,
light
we view the evidence in the
and so could
was intended for self-defense
verdict, asking
most
favorable to the
designed to inflict seri
“manifestly”
not be
whether
rational
trier of fact could
a matter
bodily injury
ous
as
of law.
Tex.
(Vernon
have found the essential elements of the
1.07(a)(17)(A)
§
Pen.Code
Ann.
beyond
crime
a reasonable
Weight
1994).
doubt.
However,
(A),
its
by
“[s]ubsection
State,
(Tex.
621,
man v.
975
624
S.W.2d
deadly weapon
clear
describes a
language,
State,
Crim.App.1998); Lane v.
933 S.W.2d by
characteristics.” McCain
physical
its
504,
(Tex.Crim.App.1996)
507
(citing
(Tex.Crim.
Jack
497,
State,
502
v.
22 S.W.3d
307, 318-19,
Virginia,
son v.
99
reason,
443 U.S.
the Court of
App.2000). For this
2788-89,
2781,
S.Ct.
1. We S.W.2d is 892 —Waco State, supported by holding 810, a ref'd); line of cases that if the 874 814 Lockett v. S.W.2d injury, evidence does actual not show then 1994, ref’d). (Tex.App. pet. In our —Dallas be actor’s there must evidence of the intent to view, holdings do not survive McCain. these See, State, injury. e.g., Bailey cause 7 State, (Tex.Crim. 22 S.W.3d McCain v. 497 721, (Tex.App. Corpus S.W.3d 724 Christi — App.2000). 1999, State, pet. granted); Wade v. 951 362
Although 803(3) court did not rule on ments is found in Rule of the Rules objection the State’s that this was not the of Evidence: statements expressing the best of Shugart’s evidence statements con then-existing declarant’s state of mind are letter, tained in the the State nevertheless 803(3). admissible. Such statements urges position this appeal. on It is well are relevant where self-defense is an issue established that when a trial court’s ruling State, 927, the case. Buhl v. 960 S.W.2d on the admission of evidence is correct for ref'd). 1998, 932 (Tex.App. pet. —Waco reason, although wrong a or insuffi State, In Buhl v. we simple stated a cient given reason is admissibility, its comment that the defendant said he ruling was appeal. must be sustained on afraid of State, the victim would 42, See be admissible Sewell v. 629 S.W.2d 45 1982); Rule 803 (Tex.Crim.App. Op.] because his fear [Panel Miles v. would State, 790, appear 488 to be a (Tex.Crim.App. S.W.2d 792 statement of his then- 1972); State, Spann 128, 130 existing emotional condition. Id. at 933. (Tex.Crim.App.1969). appel type testimony This rule of This is the which Shu- late review applies also when the gart court attempted to elicit from McNeill. excludes evidence Buhl, which the defendant of we found that the sought defense fers into evidence. See Weatherred v. elicit explanation further of the reason for State, 323, 975 S.W.2d 323 (Tex.Crim.App. fear, ie., Buhl’s that it was caused 1998) (If the trial court’s decision to ex previously pulling gun victim’s on him. clude any theory evidence is correct on Id. We found that the court acted within case, applicable law including Rule its discretion to exclude this further testi- 403, sustained.); it will be Prys see also mony prove because was offered to (Tex.Crim. tash v. truth of a fact the declarant remembered App.1999); Smith v. believed, ie., pulled that the victim must, (Tex.Crim.App.1995). We Buhl, him in gun past. on Id. Unlike therefore, determine whether the evidence where the of the statement that .relevance properly was excluded under either theory. upon Buhl was afraid hinged the truthful- 1)
It Shugart’s contention that: ness his assertion that the victim had excluded testimony him, went to his of pulled gun state the relevance of and, mind ultimately, to the issue of self- Shugart’s fear on a dependent was letter 2) defense; and the best rule already from Delarosa which evi- apply does not type this of evidence. dence. testimony Because McNeill’s 803,1002.2 See Tex.R.Evid. would have been limited to the fact that Delarosa, expressed Shugart had fear of argument We first address the testimony his inadmissible as improperly the court excluded this hearsay. hearsay. which *8 attempted to elicit would be We next consider the State’s
considered hearsay under Rule of Evi argument that properly the evidence was exception dence 801 if no hearsay to the excludable on the of the best evi basis applies. rule An See id. 801. out-of-court Ap dence rule. The Court Criminal statement during prove offered trial to peals has considered the rationale behind truth of the matter asserted is inadmissi Englund the best rule. In ble unless the statement falls within one of State, the Court considered four reasons exceptions hearsay to the rule. Id. 801(d), why the hearsay exception 802. The which common-law best-evidence rule Shugart applicable claims is to his state- existed: referencing any
2. We authority assume that the State is The State failed to cite its in Rule of Evidence 1002 when it claims response to this issue. this evidence was the "best evidence.” whether to determine (1) entire record documents is often The nature of on slight a influence more than more error had words are “of that the exact such find that it at If we Id. the verdict. average importance, particularly than af- the error did, in- conclude that we must operative dispositive the case of way in such a rights fected the defendant’s slight variation ... where struments If we have new trial. Id. great require difference as to may of words mean the out- its effect on doubts about grave rights. come, find that the error we should (2) parol evidence—whether Secondary Id. Other- a new trial. require as to such to copies susceptible testimony or —is wise, error. disregard the we should The error. both human and mechanical therefore, rule, probability enhances the jury to hear wanted the Shugart accuracy. expressed had McNeill that from (3) promotes prevention rule The inmate. and another fear of Delarosa to parties fraud because it allows that Shu- based on a note That fear was any documents for defects examine note Delarosa. That from gart received alterations, to dampens any desire and states, in It into evidence. was admitted contents of color as to the full: documents, testimony is sub- since Fuck You Chavalon ject immediate corroboration. Me And Just Leve (4) may appearance original Alone Not I’m authenticity furnish information as to its Here No lacking in a significance may be Hope IMore handwriting, paper and copy, such as You Die Or the like. Real Sick Get 64, 67-68 Englund v. Big And I AGot (Tex.Crim.App.1997). The Rule was clear- Surprise For You3 apply attempts where ly intended to one duplicate rely use a or to on one’s recollec- the threat Thus, jury was aware of original tion rather than use an when about of the fear which was the basis impor- the document itself is language of Addi- would have testified. which McNeill requiring tant. None of these reasons Shugart’s tionally, Delarosa testified original of a document can be con- ex- testimony, Delarosa behalf. In his justify testi- strued to exclusion verbal the note jury that he wrote plained offer the mony require threatening with the intent of question Thus, evidence. exclusion letter itself into from which the Shugart. This is evidence improper. on this basis was likewise fear if it Shugart’s have inferred jury could theory. believed his self-defense exclusion of However, present at the time of those by Rule governed non-constitutional error 44.2(b). the incident testified Appellate Procedure Fowler during question. the incident (Tex.App.— aggressor 864-65 Delarosa, (Tex. they began 1997) approached He aff'd, 991 Waco away and then walked argue. Delarosa applying the test Crim.App.1999). 44.2(b), Eunice Cole. Shu- talking to Officer began Rule our “harmless error” under Delarosa, slapped up then went gart the error primary is what effect question *9 had, him, pulled out the homemade and then had, upon the reasonably may have it. Delarosa with weapon and stabbed at must view jury’s decision. Id. 865. We intervene, attempted to error, isolation, in relation to When Sessions not in but the light In of him as well. the stabbed Id. review proceeding. the entire We original. Spelling punctuation as in 3. and
364 evidence, plies this it is doubtful that McNeill’s Legislature “to all unless the offenses specifically could have had than a has more it from them.” excluded Spakes, 913 slight (emphasis influence on the Id. S.W.2d at 598 add verdict. Issue ed). At least two other appeals three is without merit. courts of
have addressed this issue and held that the
necessity
apply
defense can
to the offense
NECESSITY
possession
of
of a deadly weapon
penal
in a
issue,
In
Shugart proposes
his last
State,
institution. Gonzales v.
972 S.W.2d
that the court
in failing
erred
to submit an
877,
1998)
(Tex.App.
879
rev’d
—Texarkana
necessity
jury.
instruction on
He
(Tex.
grounds,
on other
We first address whether the By Legis this Ann. may apply defense pos sought protect the offense of lature all and inmates session a deadly weapon penal employees present in the institution. State, Rios, January Appellant institution. In v. 1 at has Tyler S.W.3d not indeed, shown how safety, Court found that the defense not his own individual, safety any clearly one out available for this offense. It stated: weighs safety in of numerous other legislative purpose “[T]he of the statute is employees Institutional mates mutually exclusive with the ne defense of Division Department of the Texas of Crim cessity. ... possess To allow inmates to inal Justice. deadly weapons circumstances pose significant safety would threat Furthermore, to warrant order alike, prison personnel inmates and necessity, plea justification based on seriously would security undermine the specifically admit to the defendant must State, penal January institutions.” v. 811 State, the offense. Allen v. 971 S.W.2d 631, 1991, (Tex.App. Tyler S.W.2d 634 — 715, 720 (Tex.App. [14th Dist.] —Houston ref'd). However, pet. Tyler Court has 1998, State, pet.); no Auston v. since holding light reconsidered this of 141, (Tex.App. 145 [14th Dist.] —Houston opinion of Criminal Appeals Court 1994, pet.); Pentycuff (Tex. 597, Spakes S.W.2d 528-29 (Tex.App.—Waco Rios, Crim.App.1996). at See ref'd). pet. necessity instruction 137, n. 1. required unless there was evidence offense, Spakes, Ap- from the admitting Court Criminal accused peals necessity ap- claiming justification held that the defense and henceforth
365 First, the testimony must be evaluated. the because offense having committed 15,1996. Sec- August State, occurred altercation 902 Maldonado other facts. See already testimony had 1995, ond, following the (Tex.App. Paso S.W.2d —El Delarosa, the victim from the of- been elicited admit Shugart did not pet.). (also “Rosy”): as know merit. is without fense. Issue four threats making had been Q. y’all So of the no merit Having found hap- this before night the to each other the judgment. we affirm presented, issues you? hadn’t pened, concurring. GRAY Justice Yes, A. sir. fact, him a note and Q. you wrote In GRAY, Justice, concurring. this night him the before it to gave objected re- the The State you? didn’t happened, from contents of two letters garding the Yes, A. sir. on the basis that Terry McNeil you what has been Q. I to show want evidence” testimony violated the “best
the 1 or D-l Exhibit marked Defendant’s court hearsay. The trial rule and was recognize partic- you you and ask hearsay objection the expressly sustained ular document? appeal, the evidence. On and excluded Yes, sir. A. that exclusion was error. contends appeal, the reply Shugart’s issue document, particular Q. What is that argues that exclusion again State Mi-.Delarosa? theory correct. has either a threat. it’s like guess A. I tried —I the trial court his dis- shown that abused mad, you I him. was I tried to threaten excluding the evidence. cretion know. objection correct that could State is either docu- Q. particular Is this right. All proper ground for exclusion of
be handwriting? your ment in opinion majority Because the evidence. Yes, A. sir. erred, but the trial court determines that that it was harmless and affirms holds * * n conviction, respectfully I concur in the re- opinion. reasoning sult but not the of their wrong. I Q. me if read this Correct non.” Tell you, “Fuck says, It Shavnon OF REVIEW STANDARD means. Is non jury what Shavnon or exclusion of evidence Spanish The admission that a term? trial court’s sound is committed to the young- meaning like the A. It’s v. Alvara City discretion. Brownsville ster. (Tex.1995); do, 750, 758 See just All “And Q. Youngster. right. (Tex. 568, 574 Kelly v. I’m not here no more. me alone. leave standard, Crim.App.1992). Applying this I get got real sick and hope you I die or trial determine whether
we must that correct? surprise you.” Is biga of rea ruling was “within the zone court’s Yes, A. sir. disagreement.” sonable Rachal particular this Q. night before So (Tex.Crim.App.1996). place, you gave that took incident is that correct? Shugart; Shawn AND THE OFFER THE TESTIMONY Yes, sir. A. why trial court fully To understand testi- Now, specific we must review to allow Shu- did not err when he refused in the bill that was offered mony of McNeil testimony of the contents to introduce gart in- inmate, The offered exceptions. to another of letters written content, following: context, cluded well as the *11 Q. I you want to ask you this: Did Based on this state of the record there any type receive correspondence or are several observations that are notewor- letters from Shawn thy. that ex- Shugart prepared The dates the let- pressed any fears which he regard- had ters sent to McNeil are not established. ing some inmates? One of the letters referenced another doc- ument that testimony established had
A. Yes. been delivered to Shugart night before Q. you exactly Would tell the Court the altercation. The testimony does not what you remember about the letters? establish that either prepared letter was that, you And before you answer don’t prior August 1996 altercation. anymore, have the letters you? do Additionally, does not estab- A. No. anything lish more than Terry McNeil no Q. did say What the letters about longer had the hap- letters. What had any which might fears he have had pened to the letters or where the letters about inmates in TDC? were at the of trial was not shown time. A. I separate remember two things. require and would specu- the trial court to The first one I remember he he said late. feared two inmates and he had written someone, prison some official sys- BEST EVIDENCE tem or in prison. objection The “best prop- evidence” is a Q. you Do you know about when re- er basis for exclusion oral particular ceived that communication or prove the contents of the letters. Rule letter, Terry? provides prove “To the content of a Well, mean, A. I I really don’t know writing, recording, photograph, or for sure. original writing, recording, photograph or Q. inWas it 1996? required except provided as otherwise
A. It in August, approximately was these rules or law.” Tex.R.Evtd. August, give or take a week or two. Evidence of the of a contents document can be admitted if it meets one of the
Q. And did he mention names exceptions listed in Rule 1004 pro- which about who he was afraid of? vides: A. Rosy only is the name I remem- Admissibility Rule 1004. him of Other
ber mentioning. Evidence of Contents Well, Q. you any and did he send original required, other communication is not and other or letters that stat- particular writing, ed this the contents of a concerning or fear recording, photograph which had? is admissible he if: A. stating There was another one (a)
that he had received a saying letter All Originals Destroyed. Lost or —or note, whatever, Rosy stating from originals are lost have been de- he wished he was dead and he had a big stroyed, proponent unless the lost or surprise faith; and he took that as—that them in destroyed bad they was really after him. —he (b) Original Not Obtainable. No
Q. again, And do you know when he original can by any be obtained available particular got that letter? process procedure; judicial A. It -they weren’t—those two (c) Original No Outside the State. was— apart.. letters were not far Texas; original is located
Q. dates, you But far as can’t (d) Original Possession of Oppo- remember? original At an nent. a time when
A. exactly. party against Not the control of the “(2) offered, Secondary evidence—whether put on party whom *12 otherwise, susceptible notice, parol copies or by pleadings or —is and error. to both human mechanical subject content a of that the would be rule, therefore, proba- enhances The does hearing, party at proof and accuracy. bility of hearing; produce original not at the “(3) promotes prevention rule or The parties it to fraud allows the of because (e) writing, Collateral Matters. The any or documents for defects examine closely recording photograph is not alterations, to dampens any and it desire a controlling related to issue. of testimony as to the contents color Rule Tex.R.Evid. documents, any testimony is sub- since immediate Appeals ject The of Criminal has ex- to corroboration. Court plained “(4) the rational of the best evidence appearance original The of the They rule. have stated: au- to its may furnish information as significance may and be thenticity applicable; The best rule is evidence lacking copy, handwriting, in a such as if requires of a writ- the contents Weinstein, the like. M. paper and J. proved, ing are to be it must be Berger McLaughlin, & J. Weinstein’s possible, production, very of the writ- ¶ (1995). 1002[02] Evidence ing Ray, itself. B R. Evid., Tex.Law 946 Englund v. S.W.2d 67-68 (Texas 1563 Section Practice 3rd (Tex.Crim.App.1997). ed.1980). professed The of the purpose to production being documents rule attempted to Shugart appears have secure, hazards, the writing not at all original the absence account for of the (a). but the best of its obtainable evidence exception The ma- admission contents, if the document cannot as opinion testimony regard- holds the jority matter be practical produced, because of not ing the contents of the letter was destruction, loss, its from the or absence rea- prohibited by the common-law control, proponent’s majority opinion or the rule. court’s for the The sons production clearly of the is “The Rule intended original excused was concludes: apply attempts other evidence contents is re- where one to use its rely Ray, duplicate ceived. 3 R. or to on one’s recollection Evid., Tex.Law (Texas than use an when the lan- original Section 1571 Practice 3rd rather ed.1980). important. of the document is guage itself requiring of these reasons for None (Tex. Ortiz v. of a document can be construed original Crim.App.1983). testimony or justify exclusion of verbal also Appeals The Court Criminal has letter itself require that offer the explained the the rule reasons for which exactly That what the into evidence.” is developed They at sum- common-law. The requires. rule marized them follows: clearly implicates the second offers at least overlapping developed somewhat reasons “Four third reasons rule was justify a rule it could have been advanced to at this instance common-law. production original: preferring argued that the first and fourth also be applicable. reasons were “(1) The nature is often of documents majority opinion an that the exact are “of more The has elevated such words rule, de- importance, and used it to average particularly exception than language in- of the rule. operative dispositive stroy the case of the clear trial court majority opinion ... variation would have the slight struments where a has may opponent mean difference determine whether the great of words first excep- that the “collateral matters” rights.” shown not, applicable. tion If is the best- or believed unless it relates to the exe- cution, revocation, identification, proper ground evidence rule is not a terms of will. exceptions exclusion. The rule and its are declarant’s way. Upon proper built work the other objection applies propo- the rule unless the purpose of McNeil’s nent of the evidence establishes that the evidentiary argue to establish an basis to exception applicable. necessity that the awas for self- *13 only The trial court that erred he abused defense. The offered was his discretion in said he was afraid of Delarosa excluding the evidence. (“Rosy”) in There is no upon testimony, Based the the court could letters to McNeil. dispute that the of McNeil original have concluded the absence of the in being prove offered to that sufficiently had not been accounted for and they fact afraid of Delarosa. Thus were showing that the issue of his fear of Dela- out of court offered as evidence statements rosa was more than a collateral issue to his prove to the truth of the matter asserted. theory of having weapon for self defense. hearsay. The evidence is classic Of course not has shown that the trial court if it hearsay testimony quali- is admissible by abused his discretion determining exception fies as an to the rule which exception applicable. the is not of hear- requires otherwise the exclusion say. many exceptions. There are The HEARSAY party offering the hear- burden is on the hearsay objection The for a calls rela- excep- that an say statement to establish tively straight application forward applicable. tion is hearsay many excep- rule and one of its 803(3) Hearsay qualify exception tions. is defined as “... a state- To as an ment, If critical. by timing other than one made the declar- the of the statement is the alterca- ant while at the trial or the statement was made testifying hearing, before existing tion and was made as a then state prove offered evidence to of the truth n him”), 801(d). it of mind “I am afraid of (e.g. the matter asserted.” Tex.R.Evid. exception. would be as an admissible hearsay provides “Hearsay The rule However, if the was made statement except is not provided by admissible as after altercation, be an inad- the it would either statute or these or by rules other rules memory the condi- missible statement of prescribed pursuant statutory to authori- to the altercation prior tion that existed ty.” Shugart argues 802. Tex.R.Evid. him”) or would be (e.g. “I was afraid of to his statements the letters the alterca- after state of mind that existed exception McNeil were admissible as an to “I am (e.g. tion and therefore irrelevant hearsay argues the rule. He the him”). Only afraid of if the statement statements were admissible as a “state of altercation, prior fear-was made 803(3). exception.” mind Tex.R.Evid. would while under that fear operating then exceptions provides: Thus the statement be admissible. by not excluded following are timing, of specific as well as the wording, rule, hearsay though even the declarant of letters the statement made in the form (3) is as a witness: ... Then available analysis to McNeil are critical to Existing Mental, Emotional, Physi- admissibility. their cal Condition. A statement of the de- mind, record, it clear that existing upon then Based clarant’s state emotion, sensation, were made before physical condition whether the statements (such intent, motive, was not estab- plan, design, or after the altercation health), that the feeling, pain, bodily lished. At the evidence was mental best “approximately including memory but not statements were made statement prove August, or belief the fact or take a week or two.” give remembered could have period they when Thus July made extends from
been important More
September analysis, evidence does estab- in the letters were
lish that the statements prior to altercation.
made court
The trial was there able credibility the demeanor and
judge Shugart has not shown that the
witness. court abused his discretion exclud-
trial
ing the evidence.
NECESSITY majority the final
As the concludes *14 plea in order warrant a
paragraph,
justification necessity the based on defen-
dant must admit to the offense. admit the The trial
did not offense. court in- err to submit an refusing
did not majority necessity. opin-
struction on and purported holding
ion’s discussion necessity may
the defense of be available possession deadly
for the offense penal in a institution unneces- dicta, disposition
sary appeal, of this accordingly join I in that part do not opinion.
of the
OTHER ISSUES in the remaining parts
I concur
majority opinion expressly discussed
herein. Texas, Appellant, STATE SEPHUS, Appellee.
Julius
No. 10-98-338-CR. Texas, Appeals
Court
Waco.
Oct. 2000.
Dissenting of Justice Opinion Nov. 1,
Gray,