No. 05-08-00187-CR
Opinion filed July 28, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-70710-JN.
Before Chief Justice THOMAS and Justices FRANCIS and MALONEY.
The Honorable Frances Maloney, Retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
Opinion By Justice MALONEY.
The jury found Alejandro Gonzalez guilty of possession with intent to deliver cocaine in an amount of 400 grams or more. The trial court assessed a twenty-year sentence. In one issue, appellant complains the trial court should have submitted a jury instruction on the affirmative defense of duress. We affirm the trial court's judgment.
BACKGROUND
A Dallas Police Officer was observing various people at the bus station when he saw appellant get off a bus from Brownsville. Appellant was carrying a small bag, a pillow, and a blanket in front of his body. As appellant walked to catch another bus, he appeared to scan the terminal. While doing so, he dropped his cellular telephone, but did not bend over to pick it up. Rather, the officer picked it up for him. Appellant then boarded a bus bound for Chicago as did the officer. Because appellant appeared nervous, the officer asked and received permission to search appellant. Upon searching appellant, the officer discovered he had a large package of cocaine duct-taped to his waist. Should the Trial Court Have Submitted an Instruction on Duress to the Jury?
In one point of error, appellant argues the trial court erred in not submitting a jury instruction on duress. He maintains that because he admitted the "underlying conduct," he was entitled to the charge. Additionally, he contends the trial court "took too narrow a view of the law." The State responds that appellant did not admit to the elements of the charged offense and was not entitled to the instruction. Additionally, no evidence exists to show imminent threat of harm. 1. Standard of Review
The trial court abuses its discretion in denying a requested issue when the evidence supports the issue. Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996). When reviewing jury charge error, we must first determine if error actually exists in the jury charge and, if we find error, whether it harmed appellant. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). If appellant objected to the trial court's failing to include a requested jury, we reverse if we find any actual harm, regardless of the degree." Anderson v. State, 11 S.W.3d 369, 374 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). In assessing actual harm, we must examine the harm "in light of the entire jury charge; the state of the evidence, including the contested issues and weight of probative evidence; the argument of counsel; and any other relevant information revealed by the record of the trial as a whole." Frost v. State, 25 S.W.3d 395, 400 (Tex.App.-Austin 2000, no pet.) (citing Alamanza, 686 S.W.2d at 171). 2. Applicable Law
To qualify for a jury issue on duress, appellant must show by a preponderance of the evidence that (1) he committed the offense and (2) he was compelled to commit it "by threat of imminent death or serious bodily injury to himself or another." Tex. Penal Code Ann. § 2.04(d), 8.05(a) (Vernon 2003). Compulsion exists when the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure. Tex. Penal Code Ann. § 8.05(c) (Vernon 2003). Imminent threat occurs when the person making the threat (1) intends and is prepared to carry out the threat immediately and (2) will carry out the threat if the threatened person does not commit the act demanded immediately. Anguish v. State, 991 S.W.2d 883, 886 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). Appellant also must establish that the threatened harm was conditioned on his committing the charged offense rather than some other offense. Id. at 885. Appellant only may raise duress as a justification if he admits he engaged in the proscribed conduct as alleged in the indictment. See Tex. Penal Code Ann. §§ 2.04(c), 8.05(a) (Vernon 2003); Anguish, 991 S.W.2d at 885; Bernal v. State, 647 S.W.2d 699, 706 (Tex.App.-San Antonio 1982, no pet.); cf. Young v. State, 991 S.W.2d 835, 839 (Tex.Crim.App. 1999) (counsel not ineffective in failing to request necessity instruction when defendant did not admit committing the offense). To prosecute appellant for possession with intent to deliver cocaine, the State must prove that appellant knew that the substance in his possession was cocaine. See Tex. Health Safety Code Ann. §§ 481.102(3)(D), 481.112(a) (Vernon 2003 Supp. 2008); see also King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995); Nhem v. State, 129 S.W.3d 696, 699 (Tex.App.-Houston [1st Dist.] 2004, no pet.). 3. The Evidence a. Appellant
Appellant testified that in June 2006, he needed money because his pregnant wife was hospitalized and they were struggling to pay the hospital bills. A friend offered to give him 5,000 pesos if he would pick up a truck in Dallas, Texas and drive it back to Mexico. Appellant agreed to do so. However, when he picked up the truck in Dallas, the person who delivered the truck asked him to take $9,126 back to Matamoros to settle a debt. As appellant was returning to Mexico, the police stopped appellant for speeding on Interstate Highway 35 near Round Rock. The police searched the truck he was driving, found the $9,126, and took appellant to the police station. Eventually, they arrested him appellant for money laundering. Someone bonded appellant out of jail, furnished him a lawyer, and appellant entered a plea of guilty to the charge. After serving time in the Williamson County Jail, he returned to Mexico. When he crossed the border into Mexico, three or four men in a car stopped him, blindfolded him, and took him to a house. There, these same people told appellant that he owed them money for the truck; the money the police confiscated; the money they spent on his bond, the lawyer, and the 5,000 pesos for his wife's medical bills. To settle his debt, they told him he had to take a package to Chicago or else they would harm him and his family. Next, they taped the package to him, told him to deliver the package without any mistake, gave him a cellular telephone, and took him to the bus station. He denied knowing the package contained cocaine. Appellant explained that he had slept on the bus because he was tired. As he got off the bus in Dallas, his cellular telephone fell in front of the officer. The officer picked it up before appellant could. As soon as appellant boarded the bus to Chicago, he leaned his head against the seat in front of him because he was tired. On cross-examination, the State questioned appellant about his money laundering conviction. Appellant related that when the police stopped him in June, they took him to the police station in Round Rock, where a police officer questioned him about the truck and the money. Appellant admitted telling the officer that he had come to Dallas to buy a pickup truck. But, he denied bringing drugs to Dallas that June. The State then questioned appellant about the events that led to his arrest for possession with intent to deliver. Appellant admitted that on September 15th, he met with his friend who had set up the June trip. He testified his friend told him that "they" were upset about losing their money and, if he did not pay attention to what "they" were telling him, he "was not going back home." Appellant began his journey to Dallas on the morning of September 21st. When the police arrested appellant at the Dallas bus station, he did not know what was in the package taped around his waist. 4. Application of Law to the Facts
Appellant not only did not admit, but also specifically denied that he knew the package taped to his waist was cocaine. By denying a critical element of the charged offense, he did not raise the defense of duress. See Bernal, 647 S.W.2d at 706. The trial court did not abuse its discretion when it refused to submit appellant's requested jury instruction for duress. We resolve appellant's issue against him and affirm the trial court's judgment.