Weaver, Qualon Deshon

Weaver noticed an officer looking at him from his patrol vehicle as Weaver pumped gas. The officer pulled up behind Weaver after Weaver got in the car but did not initiate a stop until shortly after Weaver left the gas station. Weaver pulled into an empty mall parking lot. As the officer exited his vehicle, Weaver took off. He sped around the parking lot for over a minute before exiting into a neighborhood. He led the officer on a chase through that neighborhood for almost four minutes, on two main roads for about a minute, and into a second neighborhood for two minutes before hitting a tree and several parked vehicles, leaving his vehicle undriveable. Along the way, Weaver drove through many stop signs and at least one red light, reached speeds of 80 or 90 miles per hour, and at one point turned off his headlights. At trial for evading arrest, Weaver said he was scared because he was previously assaulted by a police officer, which was true. He requested a necessity instruction. Under Tex. Penal Code § 9.22, conduct is justified if, inter alia, (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm, and (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. He was denied a necessity instruction and convicted.

The court of appeals reversed. It recognized that a generalized fear of police is not enough and that some necessity claims are unreasonable as a matter of law but held Weaver identified specific actions of the officer that, “in conjunction with his prior assault by another police officer,” raised the issue of necessity. It did not consider any of the details of the evasion, which were captured on video and not disputed by Weaver. Instead, it said the ultimate determination of the reasonableness of Weaver’s belief was a function reserved for the jury. As to harm, it relied on the truism that “failure to instruct on a confession-and-avoidance defense is rarely harmless because its omission leaves the jury without a vehicle by which to acquit a defendant who has admitted to all the elements of the offense.” It did not purport to review the record to determine whether a rational jury could have agreed with his claim.

The State Prosecuting Attorney raises multiple questions about how necessity specifically (and justification defenses generally) are considered at trial and on appeal. First, the State takes issue with using Weaver’s personal experience with another officer to frame entitlement. Although that experience informs his subjective belief that harm was imminent, the rest of a necessity claim uses an objective test. The “ordinary person” contemplated by those tests is one facing the same external circumstances at the time of the offense, not one with a particular defendant’s life experience or training. Second, the court of appeals should have considered the surrounding facts of the offense when determining whether a rational juror could have a reasonable doubt about necessity. Third, similarly, the court of appeals should have considered the entire record to determine whether there was a realistic possibility the jury would have found his story genuine and a high-speed chase through multiple neighborhoods necessary. What that court did is the accepted practice, but it is a harm analysis in name only. In this case, besides the asymmetry between Weaver’s fear and response, Weaver was an admitted convicted drug dealer with three felonies, drugs/paraphernalia in the car, and $13,000 cash up his sleeves. He had a reason to evade detention.