Opinion issued August 29, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00581-CR ——————————— TRAVERS CRUMPTON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court Harris County, Texas Trial Court Case No. 1802665
MEMORANDUM OPINION
Travers Crumpton was convicted by a jury of evading arrest in a motor
vehicle1 and sentenced to 28 years’ imprisonment. He raises two issues on appeal.
First, Crumpton argues that the trial court failed to properly instruct the jury on his
1 See TEX. PENAL CODE § 38.04. necessity defense. Second, he challenges the sufficiency of the evidence to defeat
his necessity defense.
We affirm.
Background
On March 15, 2022, Kay Foster, Crumpton’s mother, called the police around
10:00 a.m. and reported that Crumpton, her adult son who was living with her at the
time, had threatened and verbally abused her, and was in possession of a gun. She
met police officers from the Houston Police Department (“HPD”), including
Sergeant G. Selle, outside of her residence and informed them that Crumpton had a
warrant for his arrest, was armed, had a “tendency to flee,” and “wants to shoot
officers if [they] try to apprehend him.” Sergeant Selle confirmed that Crumpton
had an open warrant for violating parole, as well as a lengthy criminal history
including multiple convictions for evading arrest.
As a result of this information, Sergeant Selle and his partner called for
backup. Once additional officers arrived, they attempted to secure a perimeter
around the area before trying to detain Crumpton. Officers determined that
Crumpton was driving a white Audi that was in the parking lot of the apartment
complex where Crumpton and his mother resided. Sergeant Selle attempted to block
this car with his patrol car, but was not able to do so completely because doing so
2 would have made his patrol car visible from Crumpton’s glass patio door and placed
him “right in the line of fire.”
Once they secured the perimeter, the police officers attempted to contact
Crumpton by repeatedly calling his cell phone. When Crumpton did not answer,
Sergeant T. Zhang began calling Crumpton from his patrol car’s loudspeaker,
directing him to come out and talk to police so that they could “settle everything in
a civil manner.”
Crumpton exited the residence through the back patio door but went back
inside. For several minutes, the police officers continued trying to communicate
with Crumpton and requested that he “step out with your hands up.” Crumpton
eventually reemerged from the residence but told the officers that he had nothing to
talk to them about and he was leaving. Crumpton ignored police commands to stop
and put his hands up. Instead, he got into his car and drove around the police vehicles
and left the parking lot at a high rate of speed. Crumpton was eventually arrested
six months later.
Crumpton, proceeding pro se at trial, requested and was given a jury
instruction on the defense of necessity. Crumpton testified that he fled the scene in
his car because he was terrified that the police officers were going to shoot him, and
that the harm he caused by fleeing was less than the harm of being shot by the police.
3 The jury found him guilty of evading arrest in a motor vehicle—implicitly rejecting
his necessity defense.2 This appeal followed.
Jury Charge Error
In his first issue, Crumpton argues that the trial court failed to properly instruct
the jury as to his necessity defense. The State responds that Crumpton’s arguments
fail because the trial court properly instructed the jury on the necessity defense. We
agree with the State.
A. Standard of Review
In analyzing a potential jury charge error, we use a two-step review to decide
whether reversal is required. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App.
2005); Vernon v. State, 571 S.W.3d 814, 826 (Tex. App.—Houston [1st Dist.] 2018,
pet ref’d). We first decide whether an error exists. Ngo, 175 S.W.3d at 743. If we
determine an error exists, we next analyze the error for harm. Id. The level of harm
requiring reversal based on jury charge error depends on whether the appellant
properly objected to the error. Id. If, as here, the appellant properly objected to the
charge, jury charge error requires reversal when we find “some harm” to his rights.
See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).3
2 See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). 3 Almanza applies because Crumpton argues that although the trial court charged the jury on his defensive issue of necessity, it failed to do so correctly. See Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013) (“[I]f the trial judge does charge on a 4 We review a trial court’s decision not to submit an instruction in the jury
charge for an abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex.
Crim. App. 2000). A trial court does not abuse its discretion when its decision is
within the zone of reasonable disagreement. See Casey v. State, 215 S.W.3d 870,
879 (Tex. Crim. App. 2007). Specifically, a trial court does not abuse its discretion
in refusing to submit a requested charge or instruction that is not in accordance with
the law or constitutes an incorrect statement of the law. Notias v. State, 491 S.W.3d
371, 375 (Tex. App.—Houston [1st Dist.] 2016, no pet.).
B. Applicable Law
Necessity is a justification defense. TEX. PENAL CODE §§ 9.02, 9.22. Section
9.22 of the Penal Code provides that conduct that otherwise would be criminal 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 proscribing the conduct; and
(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.
defensive issue . . . but fails to do so correctly, this is charge error subject to review under Almanza.”).
5 Id. § 9.22. The first two elements are for the jury to decide. Rodriguez v. State, 524
S.W.3d 389, 393 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d). The third is a
question of law for the court. Id.
C. Analysis
Crumpton points to three purported errors in the jury charge. First, Crumpton
contends that the trial court improperly rejected his proposed definition of
“reasonable belief.” Second, Crumpton argues that the trial court erred in removing
a critical balancing test from the definition of “ordinary standard of reasonableness.”
And third, Crumpton asserts that the trial court improperly rejected his proposed
instruction informing the jurors of the State’s burden to disprove the necessity
defense beyond a reasonable doubt.
1. Reasonable Belief
Crumpton requested that the jury be instructed as follows with respect to
reasonable belief: “A reasonable belief means a belief that would be held by an
ordinary and prudent person in the same circumstances as the defendant faced. A
belief that should be viewed from the defendant’s stand[ ]point at the time he acted.”
The trial court did not submit Crumpton’s full proposed definition, instead
including the following definition in the charge: “‘Reasonable belief’ means a belief
that an ordinary and prudent person would have held in the same circumstances as
the defendant.”
6 Crumpton claims that the trial court erred in giving this instruction because it
does not exactly track the definition of reasonable belief in the Penal Code. Section
1.07(a)(42) defines reasonable belief as “a belief that would be held by an ordinary
and prudent man in the same circumstances as the actor.” TEX. PEN. CODE
§ 1.07(a)(42). Viewing the statutory definition and the definition in the trial court’s
charge, we conclude that there is no substantive difference between the two.4 As
Crumpton acknowledges, a jury charge that tracks the language of a statute is a
“proper charge on the statutory issue.” See Riddle v. State, 888 S.W.2d 1, 8 (Tex.
Crim. App. 1994).
Yet Crumpton argues that by removing the word “faced” from his proposed
definition of reasonable belief, the trial court failed to properly instruct the jury on
the subjective component of the necessity defense, and “introduced ambiguity,
undermined the subjective nature of the assessment, and resulted in a less fair
evaluation of [Crumpton’s] beliefs in this case.” We disagree.
We discern no meaningful difference between the language of the trial court’s
definition of reasonable belief, which again tracks the statutory definition in the
Penal Code, and the one proposed by Crumpton. The inclusion of the additional
4 The only discernable differences are the order of words, i.e., “a belief that an ordinary and prudent person would have held” as stated in the charge versus “a belief that would be held by an ordinary and prudent man” as stated in the statute, and the reference to “defendant” in the charge versus “actor” in the statute. 7 word “faced” at the end of the definition sentence would be unnecessary and
repetitive, as the definition in the charge already directed the jury that a reasonable
belief refers to a belief held by an ordinary and prudent person “in the same
circumstances as the defendant.”
Because the jury was already instructed on the appropriate statutory definition
of reasonable belief, which was substantially similar to Crumpton’s requested
instruction, Crumpton’s additional wording “was simply unnecessary to clarify the
applicable law.” Beltran De La Torre v. State, 583 S.W.3d 613, 619 (Tex. Crim.
App. 2019); see also DeRusse v. State, 579 S.W.2d 224, 234 (Tex. Crim. App. 1979)
(holding that trial court did not err in refusing appellant’s requested charge that was
substantially similar to charge ultimately given by trial court). We therefore
conclude that Crumpton has failed to demonstrate that the omission of his proposed
instruction on the “reasonable belief” was erroneous.
2. Ordinary Standards of Reasonableness
Crumpton next argues that the trial court erred in submitting its instruction
relating to the ordinary standards of reasonableness. Crumpton requested that the
trial court include the following definition of ordinary standards of reasonableness
in the charge:
The term ‘according to ordinary standards of reasonableness’ within the meaning and concept of necessity, is a standard that an ordinary and prudent person would apply to the circumstances that the defendant faced. A standard of reasonableness that balances the harm the
8 defendant sought to avoid against the actual harm caused by the conduct which constituted the proscribed offense.
The trial court did not include Crumpton’s proposed definition. Instead, it
defined “ordinary standards of reasonableness” in the charge as “those standards
which would be applied by an ordinary and prudent person in the same
circumstances as the defendant.” According to Crumpton, by not including the
second sentence of his proposed instruction in the charge, the trial court removed a
critical balancing test from his proposed definition of “ordinary standard of
reasonableness.” He contends that “[f]ailing to instruct jurors on the need to
appropriately weigh the[] harms undermined Crumpton’s ability to present a full and
effective defense.”
But Crumpton does not provide any support for inclusion of this particular
instruction, nor is it an accurate reflection of the appropriate balancing test required
by the necessity defense. Under the second element of the necessity defense,
conduct is justified if “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.” See TEX. PENAL CODE § 9.22(2).
Nothing in the statute requires consideration of the “actual harm” caused by the
proscribed offense, as stated in Crumpton’s proposed charge. See Notias, 491
S.W.3d at 375 (holding that trial court does not abuse its discretion by refusing to
9 submit requested instruction that is not in accordance with law or is incorrect
statement of law).
Crumpton’s argument also fails to recognize that the jury was instructed on
the appropriate balancing test in other portions of the charge. The jury was instructed
that:
Conduct is justified if the defendant reasonably believes the conduct is immediately necessary to avoid imminent harm, and the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standard[s] of reasonableness, the harm sought to be prevented by the law proscribing the conduct.
This instruction exactly mirrors the second statutory element of the necessity
defense. See TEX. PENAL CODE § 9.22(2). The jury was also instructed in the
application paragraph to consider this balancing test:
Therefore, even if you believe from the evidence beyond a reasonable doubt that the defendant did intentionally and knowingly flee in a motor vehicle from Gustav Selle, a person whom the defendant knew was a police officer employed by the Houston Police Department and a person whom the defendant knew was attempting to arrest or detain him, as alleged, but you further believe, or you have a reasonable doubt thereof, that, at the time of such conduct, the defendant reasonably believed such conduct was immediately necessary to avoid imminent harm, to-wit: avoiding serious bodily injury or death by being shot by a police officer, and that the desirability and urgency of avoiding that harm of being shot clearly outweighed, according to the ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing such conduct, you will find the defendant “not guilty.”
These instructions served to inform the jury of the proper balancing test to
utilize when considering Crumpton’s necessity defense. When a refused charge is 10 adequately covered by the charge given, no harm is shown. Druery v. State, 225
S.W.3d 491, 505 (Tex. Crim. App. 2007) (citing Davis v. State, 651 S.W.2d 787,
792 (Tex. Crim. App. 1983)). We therefore conclude that Crumpton has failed to
demonstrate that the omission of his proposed instruction on the “ordinary standards
of reasonableness” was erroneous or that the omission, even if erroneous, resulted
in some harm.
3. Burden of Proof
Finally, Crumpton argues that the trial court erred by refusing his proposed
instruction relating to the burden of proof on his necessity defense. Crumpton
requested that the following instruction be given to the jury: “You are further
instructed that under the presented defense of necessity it is the state that must not
only prove beyond a reasonable doubt the essential elements of the cha[r]ged
offense, but also that Mr. Crumpton did not act out of necessity.” Crumpton argues
that by not giving his proposed instruction, the court’s charge erroneously omitted
any direction to the jury that it was the State’s burden to disprove the necessity
We disagree.
Although the trial court did not include the instruction above, it did include
substantially similar language, at Crumpton’s request. During the charge
11 conference, Crumpton requested that additional language related to the necessity
defense be added to the burden of proof instruction in the charge:
MR. CRUMPTON: “Prosecution has the burden of proving the Defendant guilty, and it must do so by proving each and every element of the offense charged.” But it also doesn’t show a necessity in there. I got it where I’m going to write this: “The Prosecutor in the case not only has the burden of proving the Defendant guilty beyond a reasonable doubt of each and every element of the offense charged but also that Mr. Crumpton did not act out of necessity.”
THE COURT: Fine, I’m adding that in. MR. CRUMPTON: All right. Cool, thank you.
....
THE COURT: Okay. So, what I am willing to do is on page 5 of 10 where in that paragraph there, “The prosecution has the burden of proving the Defendant guilty and it must do so by proving each and ever[y] element of the offense charged beyond a reasonable doubt.” I am going to add in language about necessity there.
Thus, the jury was ultimately instructed that:
The prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt, and also that Mr[.] Crumpton did not act out of necessity, and if it fails to do so, you must acquit the defendant.
Because Crumpton received the instruction he requested, we conclude that he
has not shown any error in the trial court’s charge with respect to this point. See
12 Cadd v. State, 587 S.W.2d 736, 741 (Tex. Crim. App. 1979) (“[I]f a defendant
requests a charge and that charge is given just as requested, he is in no position to
complain of any error therein.”).
For all the reasons above, we hold that the trial court did not abuse its
discretion in refusing Crumpton’s requested instructions. We thus overrule
Crumpton’s first issue.
Sufficiency of the Evidence
In his second issue, Crumpton challenges the sufficiency of the evidence to
defeat his necessity defense.
After a defendant has introduced some evidence supporting a defense, the
State continues to bear the burden to prove its case beyond a reasonable doubt—but
the State does not have a burden to introduce evidence to disprove the defense.
Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Thus, when a
defendant challenges the legal sufficiency of the evidence to support rejection of a
defense such as necessity, the question is not “whether the State presented evidence
which refuted appellant’s [defensive] evidence.” Dearborn v. State, 420 S.W.3d 366,
372 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing Saxton, 804 S.W.2d
914); Zuliani, 97 S.W.3d at 594. Rather, the reviewing court must ask whether, after
viewing all the evidence in the light most favorable to the prosecution, any rational
13 trier of fact would have found the essential elements of the offense beyond a
reasonable doubt and also would have found against the defendant on the necessity
defense beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914.
The trier of fact is the sole judge of the weight and credibility of the evidence.
See TEX. CODE CRIM. PROC. art. 38.04; Winfrey v. State, 393 S.W.3d 763, 768 (Tex.
Crim. App. 2013). When performing an evidentiary sufficiency review, we may not
re-evaluate the weight and credibility of the evidence and substitute our judgment
for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010).
A person commits the offense of evading arrest with a motor vehicle if he
intentionally flees from a person he knows to be a police officer attempting lawfully
to arrest or detain him and he uses a vehicle while in flight. See TEX. PENAL CODE
§ 38.04.
As noted above, necessity is a justification defense that excuses a defendant’s
otherwise unlawful conduct 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 proscribing the conduct;
and (3) a legislative purpose to exclude the justification claimed for the conduct does
14 not otherwise plainly appear. TEX. PENAL CODE § 9.22. To be entitled to this
defense, a defendant must admit that he committed the offense charged and then
offer the alleged necessity as a justification for his conduct. Young v. State, 991
S.W.2d 835, 838 (Tex. Crim. App. 1999); see also Juarez v. State, 308 S.W.3d 398,
401–02 (Tex. Crim. App. 2010).
The Penal Code defines “reasonable belief” as “a belief that would be held by
an ordinary and prudent man in the same circumstances as the actor.” TEX. PENAL
CODE § 1.07(a)(42). “Harm” means “anything reasonably regarded as loss,
disadvantage, or injury, including harm to another person in whose welfare the
person affected is interested.” Id. § 1.07(a)(25). “Imminent” means something that
is impending, something that is at the point of happening and not about to happen.
See Pennington v. State, 54 S.W.3d 852, 857 (Tex. App.—Fort Worth 2001, pet.
ref’d); see also Henley v. State, 493 S.W.3d 77, 89 (Tex. Crim. App. 2016) (holding
that necessity defense applies when action is needed “‘immediately’ (i.e., now) to
avoid ‘imminent’ harm (i.e., harm that is near at hand)”). And more than a
generalized fear of harm is required in order to raise the issue of imminent harm.
Stefanoff v. State, 78 S.W.3d 496, 501 (Tex. App.—Austin 2002, pet. ref’d);
Brazelton v. State, 947 S.W.2d 644, 648 (Tex. App.—Fort Worth 1997, no pet.).
15 C. Analysis
Here, when we view all of the evidence in the light most favorable to the
verdict and deferring to the factfinder’s determination concerning the credibility of
the witnesses, we conclude that the jury could have rationally found the elements of
evading arrest beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914.
In that regard, Crumpton testified in his own defense and admitted that he
intentionally fled from Sergeant Selle, an HPD officer, in a motor vehicle. Crumpton
testified that he knew Sergeant Selle and other officers were attempting to arrest or
detain him on a lawful warrant. Crumpton does not contest that his actions amount
to evading arrest in a motor vehicle in violation of section 38.04 of the Penal Code.
See TEX. PENAL CODE § 38.04. Indeed, if he had denied these elements, the defense
of necessity would not have been available to him. See Juarez, 308 S.W.3d at 404
(noting that justification defenses such as necessity fall within confession-and-
avoidance doctrine, which requires defendant to admit charged conduct before
defense will be available).
Rather, Crumpton’s sole defense is that his conduct was necessary because he
was in fear of his life because he believed the police officers were going to shoot
and kill him. But viewing all the evidence in the light most favorable to the verdict
and deferring to the jury’s credibility determinations, we conclude that the jury could
16 have rationally found against Crumpton on his necessity defense beyond a
reasonable doubt. See Saxton, 804 S.W.2d at 914.
Crumpton based his necessity defense on his own testimony that when he left
the residence, he saw the officers with their firearms pointed at him. He testified
that he was “terrified” they were going to shoot him because, based on his experience
in being arrested before and “stuff on TV,” he was afraid the police officers might
panic and make a mistake. But the record contains no evidence that ever happened
to him before. Nevertheless, Crumpton told the jury that he had a “gut feeling”
something was not right. He explained that he had been arrested several times in the
past and “usually they come to you,” but this time “was totally different” because
the officers were “staying back [and] . . . not coming for [him.]”
Although Crumpton testified to this fear and gut feeling, he also admitted that
he knew officers “were there to probably detain me, not shoot me.” He further
admitted that although police officers had their firearms drawn, they did not shoot at
him when he came out the first time, when he came out the second time, when he
walked to his car, when he got in the car, or when he drove away.
Thus, by his own admission, Crumpton believed that the officers were not
there to shoot him, and, in fact, they never fired at him. Crumpton’s generalized,
unsupported fear of being shot by police officers is insufficient by itself to support a
conclusion that his actions in evading arrest in a motor vehicle were necessary to
17 avoid imminent harm. See Williams v. State, No. 06-18-00130-CR, 2019 WL
1284628, at *2 (Tex. App.—Texarkana Mar. 21, 2019, pet. ref’d) (mem. op., not
designated for publication) (holding that appellant’s “generalized fear of police,
without more, does not support the defense of necessity”); Stefanoff, 78 S.W.3d at
501.
The jury also heard testimony from multiple officers who were on scene,
including Sergeant Selle and Sergeant Zhang, that they made several attempts to
speak with Crumpton and get him to exit the house peacefully and with the least
amount of force. Sergeant Selle testified that he had his gun drawn because they had
received information from Crumpton’s mother that Crumpton “was armed and that
he wanted to shoot police.” Sergeant Zhang likewise testified that the officers were
faced with heightened risk because Crumpton was on a parole warrant, was present
in the apartment by himself, and was potentially armed. Accordingly, Sergeant
Zhang explained that most of the officers had their weapons drawn and at a “low
ready” for their safety and protection, but that none of them had their weapons
pointed at Crumpton.
Multiple body cam videos introduced by Crumpton also confirmed that the
officers made numerous attempts to speak with Crumpton before he exited the
residence. And, after Crumpton exited the residence, officers continued to inform
18 him that they did not want to hurt him and requested that he step outside with his
hands up so they could talk.
But rather than complying, Crumpton refused to raise his hands, told the
officers he had nothing to talk about and that he was leaving. Crumpton then entered
his car and drove around the police vehicles and left the parking lot at a high rate of
speed. Based on this evidence, even if the jury believed that Crumpton subjectively
feared being shot by police, they could have rationally believed that his subjective
fear was not reasonable under the circumstances.
Additionally, Sergeant Zhang testified that Crumpton made the situation more
dangerous by not answering their phone calls, not responding to police
communications over the loudspeaker, and not complying with police commands to
stop and raise his hands. He further testified, without objection, that an ordinary and
prudent person would comply when told by a police officer to stop and raise their
hands. Thus, even if the jury believed Crumpton’s testimony that he was in fear for
his life because he believed the police officers were going to shoot him—the jury
could have also rationally found that this belief was not reasonable because
Crumpton could have simply complied with the officers’ commands. See, e.g.,
Kirkpatrick v. State, No. 01-20-00141-CR, 2022 WL 3093026, at *6 (Tex. App.—
Houston [1st Dist.] Aug. 4, 2022, pet. ref’d, untimely filed) (mem. op., not
designated for publication) (concluding that trial court could have rationally found
19 that appellant’s belief that shooting complainant was immediately necessary to avoid
imminent harm was not reasonable because “he had other options he could have
pursued to ensure his safety”).5
Finally, the jury could have doubted Crumpton’s credibility with respect to
his assertion of the necessity defense based on (1) his history of evading arrest by
foot and motor vehicle,6 (2) his testimony that he knew he had an open warrant and
could have turned himself in at any time, (3) his admission that he is not “somebody
that wants to go to jail,” that he “hate[s] jail,” and that it “sucks in jail,” and (4) that
he did not turn himself in after evading because he did not want to go to jail. See
TEX. CODE CRIM. PROC. art. 38.04 (trier of fact is sole judge of weight and credibility
of evidence).
Accordingly, for all the reasons above, we conclude that a rational jury could
have found beyond a reasonable doubt against Crumpton on the necessity defense
issue and, thus, the evidence is sufficient to defeat this defense and support his
conviction. See Saxton, 804 S.W.2d at 914.
5 See also Arnwine v. State, 20 S.W.3d 155, 160 (Tex. App.—Texarkana 2000, no pet.) (“It has been held that the existence of lawful alternatives to the commission of a criminal act may preclude a defendant from the defense of justification by necessity.”). 6 Crumpton testified that he had four or five misdemeanor convictions for evading arrest on foot, as well as a prior felony conviction for evading arrest in a motor vehicle.
20 We overrule Crumpton’s second issue.
Conclusion
We affirm the trial court’s judgment in all things.
Terry Adams Chief Justice
Panel consists of Chief Justice Adams and Justices Kelly and Goodman.
Do not publish. TEX. R. APP. P. 47.2(b).