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Dewalt v. State

The facts in the case negate, as a matter of law, the sort of "emergency situation" necessitating a "split-second decision made without time to consider the law" that distinguishes "imminent harm" and can raise a necessity defense. Instead, the evidence reflects a calculated decision by appellant before, during, and continuing for years after her trial to ignore and avoid the law. Consequently, the district court did not err in holding that appellant could not raise a necessity defense and did not abuse its discretion in excluding evidence she sought to present to prove that defense. Austin Court of Appeals, No. 03-06-00454-CR, 01-22-2010

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OPINION

After a Comal County jury awarded sole managing conservatorship of her five year-old son to his father–her ex-husband–rather than her, appellant Suzanne Kearns Dewalt fled with the child to Mexico. Almost three years later, Dewalt was apprehended in that country and returned with the child to Comal County. She was subsequently indicted for the offense of aggravated kidnapping. Another Comal County jury found her guilty and assessed punishment at five years’ imprisonment and a $10,000 fine. In four issues on appeal, Dewalt argues that the district court abused its discretion in excluding evidence to the effect that she acted as a “protective mother” in fleeing the jurisdiction based on her belief that her ex-husband would harm the child. Dewalt also complains that the district court abused its discretion in limiting her voir dire, that she is entitled to an instructed verdict because proof of the elements used to aggravate her kidnapping charge “were subsumed within the proof of the underlying offense,” and that the State failed to meet its burden of proving venue in Comal County. We will affirm the judgment of conviction.

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