Opinion
No. 14-07-00381-CR
Opinion filed September 25, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 232nd District Court Harris County, Texas, Trial Court Cause No. 1112966.
Panel consists of Justices FROST, SEYMORE, and GUZMAN.
MEMORANDUM OPINION
A jury convicted appellant Chris Turan Hawkins of aggravated robbery and sentenced him to thirty-five years confinement in the Texas Department of Criminal Justice, Institutional Division. In two issues, appellant challenges his conviction because of alleged error in the jury charge. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant has not challenged the sufficiency of the evidence. Therefore we briefly discuss the facts here and throughout the opinion as necessary to address appellant's issues. On September 6, 2006, Johnna Sipes, the office manager at Eurway Furniture on Eldridge Street in Houston, walked towards her vehicle in the parking lot of the store to take the deposits from the previous weekend to the bank. She was carrying a variety of deposit envelopes inside a larger manilla envelope. As she approached her vehicle, a white car pulled up behind her; an armed gunman wearing a hood, hat, and glasses approached her. He pointed the gun at her and ordered her to give him her bag, her purse, and her keys, and then told her to lay down on the ground. Sipes feared that the gunman would shoot her, so she gave him the large manilla envelope, her purse, and her keys, and lay down on the ground. The gunman then sprayed her with Mace and got into the passenger side of the waiting vehicle. The driver of the white car sped away from the parking lot. Sipes ran inside the furniture store yelling for help. Sipes's boss, Gary Greeson, saw the white car leaving the parking lot. After Sipes told him she had been robbed, he got into his car and followed the white car, which had no license plates. Greeson called 911 while following the car. After following the white car for a few blocks, Greeson was able to get the attention of a police officer in a marked patrol vehicle who then got behind the white car. Once the officer turned on his emergency lights, the driver of the white car accelerated instead of pulling over. A high-speed chase ensued, with the driver of the white car speeding through several traffic signals without stopping. Police officers pursued the car to an apartment complex, where officers observed appellant, who had been driving the vehicle, and an unknown passenger simultaneously "bail out" of the car and run away. An officer chased appellant, who tossed a pistol into some bushes while fleeing on foot. Eventually, appellant was apprehended when he tripped and fell while attempting to cross a nearby street. When officers picked appellant up from the ground, there was a large amount of cash in the street under appellant and on his person. Over $3,500.00 was recovered from appellant; the total amount of cash stolen from Sipes was approximately $7,200.00. The unknown passenger in appellant's vehicle was never apprehended by police officers. At trial, appellant relayed the events leading up to and following the aggravated robbery. He testified that he picked up an unknown man who asked for a ride to pick up his house keys and a check from his wife. This unknown person directed appellant to the furniture store, where he told appellant to pull up behind a female who had exited the building. Appellant's passenger then got out of the car, leaving the door open. Appellant explained that he did not see what his passenger did in the parking lot of the furniture store because he was looking through his CD collection and trying to put some cell phone numbers into his cell phone. According to appellant, he could not hear what was happening outside his car, even though the passenger's door was open, because he was playing music at a very high volume. When appellant's passenger got back into the car, he pointed a gun at appellant and ordered appellant to "drive." Afraid for his life, appellant pulled out of the parking lot in a careful and safe manner. He stated that he asked his armed passenger to let him out, but his passenger refused. Appellant testified that when he saw a police car behind him, he attempted to pull into a gas station, but his passenger would not allow him to do so. According to appellant, his passenger directed him to the apartment complex. Appellant testified that he drove as carefully as he could and did not accelerate when he saw the police car behind him. He stated that he did not drive over 70 miles per hour and did not run through any traffic lights. According to appellant, when they arrived at the apartment complex and came to a stop, his passenger got out first, leaving some money and the gun in the car. Because he was not "thinking clearly," appellant grabbed the gun and the money before he exited his car. He testified that he ran from the police because he was afraid the officers would shoot him. Appellant explained that he had nothing to do with the robbery, and he never would have picked up his passenger if he had known what this individual planned to do. Appellant also stated that he tried to tell the officers who apprehended him that he was a victim, but no one would listen to him. After both sides rested, the trial court denied appellant's requested instruction on duress. Appellant also objected to the inclusion of an instruction on the law of parties, which was overruled by the trial court. The jury found appellant guilty of aggravated robbery as charged in the indictment and assessed punishment at thirty-five years confinement in the Texas Department of Criminal Justice, Institutional Division. The trial court sentenced appellant accordingly, and this appeal timely ensued.II. ISSUES PRESENTED
In his first issue, appellant contends the trial court erred in refusing to include an instruction on duress in the jury charge during the guilt-innocence phase. In his second issue, appellant asserts the trial court erred in submitting an improper instruction on the law of parties in the jury charge.III. ANALYSIS
A. Standard of Review
When reviewing allegations of charge error, an appellate court must first determine whether charge error actually occurred. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005) (en banc). If error is found, the court must determine whether the trial court's error caused harm sufficient to require reversal. Id. The degree of harm required for reversal depends on whether the error was preserved. Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986) (en banc). If no proper objection was made at trial, we will reverse only if the error was so egregious and created such harm that the appellant has not had a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (en banc) (op. on reh'g). When there is a timely objection to an improper jury charge, on the other hand, we will reverse unless the error was harmless. Id.B. Duress Instruction
As noted above, appellant's request for an instruction on the affirmative defense of duress was denied by the trial court. An accused has the right to an instruction on any defensive issue raised by the evidence, whether the evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense. Granger v. State, 3 SW.3d 36, 38 (Tex.Crim.App. 1999). The defense of duress applies when a defendant "engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself. . . ." TEX. PENAL CODE ANN. § 8.05(a) (Vernon 2003). Appellant argues that his testimony about the unknown passenger in his vehicle who robbed Sipes and forced him at gunpoint to flee the scene of the robbery entitled him to an instruction on the defense of duress. We disagree. To assert the defense of duress, the defendant must admit to committing the proscribed conduct. See id. ("actor engaged in the proscribed conduct") (emphasis added); see also Anguish v. State, 991 S.W.2d 883, 885 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd) ("Therefore, a defendant who claims duress must establish that the threatened harm was conditioned on his committing the charged offense, as opposed to some other offense."); Bernal v. State, 647 S.W.2d 699, 706 (Tex.App.-San Antonio 1982, no pet.) (concluding that a defendant was not entitled to a duress instruction because he denied having participated in the offense). Here, rather than alleging that he was forced to commit the robbery because of his passenger's threat, appellant's theory at trial was that he was misled by his passenger into driving this passenger to the scene of the crime. Appellant further claimed that he was not aware that his passenger was robbing Sipes until after the offense was committed. Thus, appellant was not entitled to an instruction on duress for the charged offense of aggravated robbery. Because the trial court did not err in denying his request for this instruction, we overrule his first issue.C. Instruction on the Law of Parties
At trial, appellant objected to the submission of a jury instruction on the law of the parties as follows: "I object to the submission of the parties instruction based upon there is no evidence that Mr. Hawkins did intend to promote or assist the commission of the offense, solicit, encourage, direct, aid or attempt to aid the other person to commit the offense. There's no evidence." On appeal, however, appellant asserts that the charge was improperly worded because the application paragraph did not adequately apply the law of parties to the facts of the case. Because appellant's objection at trial does not comport with his complaint on appeal, we will treat this issue as one of unobjected-to charge error. Thus, we must reverse only if we determine that the alleged error resulted in egregious harm. Cf. Bluitt v. State, 137 S.W.3d 51, 53 (Tex.Crim.App. 2004) (holding that an affirmative denial of an objection is equivalent to failure to object and reversal for such error is only proper when it resulted in egregious harm); Webber v. State, 29 S.W.3d 226, 235-36 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (same). First, however, we must determine whether error actually exists in the charge. Ngo, 175 S.W.3d at 743. When, as here, there is no evidence to support a submission that the accused was the primary actor, an instruction on the law of parties should be submitted and made applicable to the facts. Reyes v. State, 741 S.W.2d 414, 424 (Tex.Crim.App. 1987) (en banc). The trial court charged the jury as follows:All persons are parties to an offense who are guilty of acting together in the commission of the offense. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.
A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Mere presence alone will not constitute one a party to an offense.
. . .
[I]f you find from the evidence beyond a reasonable doubt that . . . an unknown person did then and there unlawfully, while in the course of committing theft of property owned by Johnna Sipes and with intent to obtain or maintain control of the property, intentionally or knowingly threaten or place Johnna Sipes in fear of imminent bodily injury or death, and the unknown person did then and there use or exhibit a deadly weapon, to wit: a firearm, and that the defendant . . . with the intent to promote or assist the commission of the offense, if any, solicited, encouraged, directed, aided or attempted to aid the unknown person . . . to commit the offense, if he did, then you will find the defendant guilty of aggravated robbery, as charged in the indictment.Contrary to appellant's assertions, the application paragraph in this charge applies the law of parties to the facts of the case. See Chatman v. State, 846 S.W.2d 329, 332 (Tex.Crim.App. 1993) (en banc) (concluding that general application of law of parties to facts was sufficient); Brown v. State, 716 S.W.2d 939, 942 (Tex.Crim.App. 1986) (en banc) ("This is not a case where the court charged only on the abstract law of parties with no charge applying the law of the parties to the facts. Here the court did apply the law of parties to the facts."). We therefore conclude that the trial court did not erroneously instruct the jury on the law of parties and overrule appellant's second issue.