Opinion
No. 05-04-01863-CR
Opinion Filed February 9, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-72312-WM. Affirm.
Before Justices O'NEILL, FITZGERALD, and LANG.
OPINION
Appellant appeals his conviction for capital murder. After the jury found appellant guilty, the trial court assessed a mandatory life sentence. In three points of error, appellant generally contends (1) the evidence is factually insufficient to support the jury's failure to find he acted under duress, and (2) the trial court erred in excluding evidence. For the following reasons, we affirm the trial court's judgment. The grand jury indicted appellant for capital murder alleging he shot and killed Terrance Robertson while in the course of committing and attempting to commit robbery. At trial, the State presented evidence that Robertson was shot at a "candy store" operated out of a residence. On the night of the shooting, Robertson was helping the owner with the store. Appellant entered the store and stated he wanted to buy something for his sick child. As the owner was helping appellant, appellant shot Robertson in the head. After he shot Robertson, appellant went through his pockets, and then ran from the scene. After the offense, appellant was questioned by police. In a written statement, appellant admitted shooting Robertson, but claimed he only did so because Albert "Big Dog" Davis had told him to and he was "afraid" of Davis. At trial, appellant claimed duress. Specifically, he maintained he shot Robertson because he believed Davis would kill him if he did not. Appellant testified he had met Davis through Davis's niece. According to appellant, Davis "forced" appellant to "hang out" with him and help him rob drug dealers. In return, appellant would receive a portion of the money obtained in the robberies. Appellant did what Davis told him to because Davis had a "reputation." Also, Davis had once broken appellant's jaw because appellant refused to give Davis $20. On the night of the shooting, Davis and his brother had picked appellant up in their van. Davis had taken PCP and was acting erratically. Davis pulled out a gun and put it to appellant's head. He told him "this is what you got to do when it come down to it. And if not, I'll do you." Davis then drove appellant to the "candy store" Davis got out and went in for about five minutes. When he came back out, he told appellant Robertson was in the store and described him. Davis pointing the gun at appellant and told him he had to kill Robertson by shooting him in the head. He then gave appellant his gun and told him if he did not do as he was told, he "knew the consequences." Davis then dropped appellant off in front of the residence and told him to meet him at a church around the corner. Appellant then went inside the house and shot the victim in the head. The jury was charged on the affirmative defense of duress. The jury rejected appellant's defense, finding him guilty of capital murder. In the first issue, appellant contends the evidence is factually insufficient to support his conviction. Appellant does not dispute that the State proved he committed the offenses as alleged in the indictments. Instead, he asserts no rational trier of fact could have found against him on his duress defense. To establish the defense of duress, the defendant is required to show, by a preponderance of the evidence, that he was compelled to engage in the proscribed conduct by threat of imminent death or serious bodily injury. Tex. Pen. Code Ann. §§ 8.05(a), 2.04(d) (Vernon 2003); Edwards v. State, 106 S.W.3d 833, 843 (Tex.App.-Dallas 2003, pet ref'd). Compulsion exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure. Tex. Pen. Code Ann. § 8.05(c) (Vernon 2003). The defense of duress is not available if the defendant intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion. Tex. Pen. Code Ann. § 8.05(d) (Vernon 2003). Here, the only evidence appellant presented to prove his defense was his own self-serving testimony that he shot and killed the victim because Davis threatened to kill him if he did not. However, the jury could have simply disbelieved appellant. Indeed, in his voluntary statement, although appellant claimed a generalized fear of Davis, he did not mention any particularized threats, much less allege he feared for his life. Moreover, even if the jury believed appellant's testimony, it could have determined any threat Davis may have made was not an imminent threat. In fact, at the time appellant shot and killed the victim, Davis was not present and appellant was in possession of Davis's gun. Finally, appellant admitted that Davis was violent and had on several previous occasions made him do illegal things he did not want to do. Appellant nevertheless continued his relationship with Davis and went with him on the night of the shooting. In doing so, the jury could have concluded appellant intentionally, knowingly, or recklessly placed himself in a situation in which it was probable he would be subject to compulsion. After reviewing the record as a whole, we conclude the jury's rejection of appellant's defense is not so against the great weight and preponderance of the evidence as to be manifestly unjust. We resolve the first issue against appellant. In his second and third issues, appellant contends the trial court erred in excluding relevant evidence. At trial, appellant sought to call Davis's daughter to testify that she had overheard Davis threaten to harm appellant. The trial court stated it would not allow evidence of any threats Davis made unless appellant had heard the threat. Appellant responded "okay" and asked if he could present evidence of Davis's general "character as being nasty." The trial court asked what rule of evidence appellant relied upon for admissibility, and appellant stated rule of evidence 803(19), which is a hearsay exception for "reputation concerning personal or family history." The trial stated that unless appellant could come up with another theory of admissibility, it would exclude the evidence. Appellant failed to do so and the evidence was excluded. On appeal, appellant asserts the trial court erred in excluding the proffered evidence because the evidence had relevance apart from its tendency to show character conformity because it made it more likely that Davis had threatened appellant on the night of the offense. Appellant did not, however, inform the trial court of this theory of admissibility at the time of trial. The proponent of evidence, if he is the losing party on appeal, must inform the trial court why the proffered evidence was admissible. Reyna v. State, 168 S.W.3d 173, 174 (Tex.Crim.App. 2005). Because appellant did not profer the evidence for anything apart from its tendency to show character conformity, he failed to preserve error. We resolve the second and third issues against appellant. We affirm the trial court's judgment.