                                         NO. 07-09-0157-CR

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                PANEL A

                                           MARCH 24, 2011

                               ______________________________


                                  CODY RAMIREZ, APPELLANT

                                                     V.

                               THE STATE OF TEXAS, APPELLEE


                            _________________________________

               FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2009-422,891; HONORABLE JIM BOB DARNELL, JUDGE

                              _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                                OPINION


        Following a plea of not guilty, Appellant, Cody Ramirez, was convicted by a jury

of aggravated assault of a public servant,1 with an affirmative finding on use of a deadly

weapon.2 Punishment was assessed by the jury at confinement for life. Presenting two

1
Tex. Penal Code Ann. § 22.02(b)(2)(B) (West Supp. 2010).
2
 At the time of the offense, Appellant was sixteen years old. The trial court did take judicial notice of the
juvenile certification in the underlying case.
issues, Appellant questions whether (1) the trial court constructively denied his right to

testify in violation of due process by indicating an intent to allow improper impeachment

evidence and (2) the trial court erred in not submitting a jury charge that properly

instructed it regarding the affirmative defense of duress.3 We affirm.


                                         Background Facts


        At approximately 4:00 a.m. on December 5, 2006, Officers Michael Chavez and

Michael Matsik, in separate patrol cars, responded to an aggravated robbery at a local

gaming establishment. Per procedure, they retrieved their patrol rifles from the trunks of

their respective patrol cars. While Officer Chavez was loading his rifle, two suspects

wearing black ski masks and hooded sweatshirts exited the back door of the gaming

establishment and began running for the east gate. Although ordered to the ground, the

two suspects began to flee in opposite directions. Officer Chavez gave chase to the

suspect running south, while Officer Matsik gave chase to the other suspect. At the

time, both officers observed a small gray or silver car parked in the alley.


        Officer Matsik temporarily lost sight of his suspect when the suspect cut through

a fence. A female bystander pointed Officer Matsik in the suspect's direction. Although

the area was dark, Officer Matsik observed a silhouette followed by a muzzle flash.4 He

immediately dropped to the ground as multiple shots were fired. He picked himself up

to return fire but noticed the safety on his rifle was still engaged. The suspect had

retreated over a gate into a residential area, and Officer Matsik could not get a clear

shot.
3
See Tex. Penal Code Ann. § 8.05 (West 2003).
4
Officer Matsik testified that a muzzle flash is a flash that comes from the barrel of a weapon upon firing.

                                                     2
       After Officer Chavez heard shots fired, he decided to check on his fellow officer.

As he approached, he saw the silver car which he had earlier observed in the alley

speed away.      Other officers on the scene pursued the car and eventually arrested

Appellant.     The second suspect, the suspect Officer Chavez had originally pursued,

was later found hiding under a door that was leaning up against a building.


       After the suspects were arrested, Officer Matsik experienced a burning sensation

on his upper thigh. He pulled his left pant leg up and, using the lights of the patrol car,

noticed a bullet hole in the lower part of the pant leg toward his ankle. He also had

graze wounds on his upper thigh and just above his left wrist. He concluded that bullets

were fired in his direction and that contact was made on at least three occasions.


       Although Appellant was initially charged in a six-count indictment, the State

announced just before trial that it was proceeding only on count VI, the charge of

aggravated assault with a deadly weapon against Officer Matsik.                  After a jury trial,

Appellant was convicted and sentenced to life imprisonment.


I.     Issue One--Did the trial court constructively deny Appellant his right to
       testify by announcing that it would permit the State to cross-examine him
       with improper impeachment evidence?

       Appellant proceeded to trial on the theory of duress as an affirmative defense.

The theory was that Appellant's uncle, Richard Ramirez,5 coerced him into committing

the aggravated robbery and threatened to kill him if he got caught. Ramirez testified

that he "masterminded" the robbery at the gaming establishment, provided Appellant

with a gun, and threatened his life. He further testified that his instructions to Appellant

5
Richard Ramirez's charges in the aggravated robbery were dismissed in exchange for his plea to capital
murder for which he is serving a life sentence without the possibility of parole.

                                                  3
included not getting caught or he would have to "deal with" him. His advice to Appellant

to evade officers was to "shoot low" and "[g]et away." Richard Ramirez was inside the

gaming establishment at the time of the robbery but was not armed at the time and was

not near Appellant.


       Following Ramirez's testimony, defense counsel advised the trial court that

Appellant indicated he wanted to testify and asked that he be properly admonished.

Defense counsel's understanding at that time was that Appellant would only be

impeached with prior felonies or misdemeanors involving moral turpitude.               The

prosecutor responded that with the affirmative defense of duress, Appellant would have

to accept full responsibility for the crime and that his character and relationship with

Richard Ramirez would be explored.


       The jury was excused and Appellant took the stand and was admonished by the

trial court about the waiver of his right against self-incrimination. After a brief question

and answer period, the trial court found that Appellant had freely and voluntarily waived

that right. The court then requested that the prosecutor reveal her intended line of

questioning.


       The prosecutor advised the court that based on the affirmative defense of

duress, she intended to explore Appellant's relationship with his uncle which would put

Appellant's character at issue. She also expressed her intent to question Appellant on

his problems with the juvenile system and possible gang activity.


       The trial court ruled that the prosecutor could ask questions on the proposed

areas, except for any questions relating to gang activity.       Defense counsel sought

                                             4
clarification and the trial court explained that its ruling would permit questions on

Appellant's juvenile record and extraneous offenses without limiting those extraneous

offenses to prior acts involving moral turpitude.


       Defense counsel then asked to confer with Appellant after which he raised the

following objection:


       Your Honor, in light of the Court's ruling, allowing the prosecution to go
       into juvenile records and extraneous offenses, I have spoken with my
       client, [Appellant], and he now informs me that he does not wish to testify
       at this point during the guilt - innocence stage.

       I wish to state for the record that I am objecting to the Court's ruling, and I
       would submit that the ruling itself prohibits him from taking the stand under
       the present circumstances.


Defense counsel's objection was overruled.


       By his first issue, Appellant argues that the trial court's ruling constructively

denied him the right to testify in his own defense.       While acknowledging that Rule

404(b) of the Texas Rules of Evidence allows the admission of other crimes, wrongs or

acts for certain limited purposes, Appellant maintains the State did not offer a legitimate

limited purpose for the scope of its intended cross-examination. He further maintains

the trial court's ruling would have allowed impermissible impeachment evidence

regarding Appellant's character. The court's action, he asserts, presented him with a

Hobson's choice.


       An accused has the right to testify on his own behalf. See Rock v. Arkansas, 483

U.S. 44, 49, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). See also Tex. Const. art. I, section

10; Tex. Code Crim. Proc. Ann. art. 38.08 (West 2005).            If, however, an accused


                                             5
exercises his right to testify, he is subject to the same rules governing examination and

cross-examination as other witnesses.             Brown v. State, 617 S.W.2d 234, 236

(Tex.Crim.App. 1981).     "He may be contradicted, impeached, discredited, attacked,

sustained, bolstered up, made to give evidence against himself, cross-examined as to

new matter, and treated in every respect as any other witness testifying, except where

there are overriding constitutional or statutory prohibitions." (Citations omitted). Id.


       The decision of an accused whether to testify "seldom turns on the resolution of

one factor among many." New Jersey v. Portash, 440 U.S. 450, 467, 99 S.Ct. 1292, 59

L.Ed.2d 501 (1979) (Blackmun, J., dissenting).         When a defendant chooses not to

testify, a reviewing court has no way of knowing whether the State actually would have

sought to impeach him with inadmissible evidence of extraneous offenses or prior

convictions. Luce v. United States, 469 U.S. 38, 42, 105 S.Ct. 460, 83 L.Ed.2d 443

(1984). In Luce, the Supreme Court adopted the rule that "[t]he preferred method for

raising claims such as [Appellant's] would be for the defendant to take the stand and

appeal a subsequent conviction . . . . Only in this way may the claim be presented to a

reviewing court in a concrete factual context." Id. at 43 (citing Portash, 440 U.S. at 462

(Powell, J., concurring)). The Supreme Court held that because Luce did not testify, he

failed to preserve his claim of improper impeachment evidence. Luce, 469 U.S. at 43.


       In Jackson v. State, 992 S.W.2d 469, 479-80 (Tex.Crim.App. 1999), the Court

rejected an argument similar to the one being made here, i.e., that the trial court

effectively denied the defendant his right to testify by refusing to limit the State's cross-

examination. In Jackson, the defendant wanted to testify during the punishment phase

of his capital murder case, for the limited purpose of raising mitigation issues. He

                                              6
sought to foreclose cross-examination about extraneous offenses.              Jackson, 992

S.W.2d at 479. Because the defendant failed to testify the Court found the reasoning of

Luce to be applicable and held that he failed to preserve error for review. Id. at 480.


       In the present case, after conferring with his counsel, Appellant chose not to

testify. Without his testimony, this Court cannot speculate on whether the prosecutor

would have cross-examined Appellant on matters outside the scope of permissible

impeachment. Notwithstanding that the prosecutor had announced certain areas which

she intended to explore on cross-examination, without Appellant's testimony, this Court

is at a disadvantage in attempting to determine (1) the precise nature of the State's

questions, (2) Appellant's actual evidentiary objection, (3) whether the trial court's ruling

would have remained the same or would have changed as the case unfolded, (4)

Appellant's responses to the State's questions, and (5) whether any resulting error in

permitting impermissible evidence would have been harmless. See Luce, 469 U.S. at

41. We conclude that, just as in Luce and Jackson, Appellant's objection regarding the

trial court's "prospective ruling" regarding possible impeachment evidence preserved

nothing for review. Issue one is overruled.


II.    Issue Two-- Did the trial court err in failing to submit a jury charge that
       properly instructed the jury regarding the affirmative defense of duress?


       Duress is an affirmative defense if the actor engaged in proscribed conduct

because he was compelled to do so by threat of imminent death or serious bodily injury

to himself or another. Tex. Penal Code Ann. § 8.05(a) (West 2003). A person is

compelled to act within the meaning of the duress defense only if confronted by force or

threat of force that would render a person of reasonable firmness incapable of resisting

                                              7
the pressure. Id. at (c). Whether a "person of reasonable firmness" would be incapable

of resisting the pressure to engage in proscribed conduct is an objective inquiry rather

than a subjective one. See Wood v. State, 18 S.W.3d 642, 651 n.8 (Tex.Crim.App.

2000).


         Appellant does not complain about the abstract or application portions of the

court's charge as they pertain to the affirmative defense of duress.               Rather, he

specifically maintains that the following paragraph improperly instructed the jury that a

special finding was required for or against the affirmative defense of duress:


         If, however, after viewing the facts from the defendant's standpoint, you do
         not find by a preponderance of evidence that defendant's participation in
         the offense, if any, was compelled by such threat of force by Richard
         Ramirez as would render a person of reasonable firmness incapable of
         resisting the pressure thereof, then you will find against the defendant on
         his defense of duress.


During the charge conference, defense counsel objected to inclusion of the above-

quoted paragraph. Counsel's objection was overruled.


         Appellant argues the charge is a misstatement of the law because it improperly

instructs the jury to find "against the defendant" if it does not find the affirmative defense

of duress by a preponderance of the evidence. We disagree.


         First, the objected to portion of the court's charge does not instruct the jury to find

against the defendant on the issue of guilt or innocence if it does not find the affirmative

defense of duress by a preponderance of the evidence.                    Instead, in such a

circumstance, it only instructs the jury to find against the defendant on the affirmative

defense issue of duress. Therefore, Appellant's argument lacks substantive merit.

                                                8
       Secondly, assuming arguendo, that the trial court's inclusion of the objected-to

paragraph was error, Appellant was not harmed.6 The function of the jury charge is to

instruct the jury on the law applicable to the case. Tex. Code Crim. Proc. Ann. art.

36.14 (West 2007); Dinkins v. State, 894 S.W.2d 330, 339 (Tex.Crim.App. 1995), cert.

denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995). The charge consists of an

abstract statement of the law and the application paragraph(s). See Plata v. State, 926

S.W.2d 300, 302 (Tex.Crim.App. 1996), overruled on other grounds, Malik v. State, 953

SW.2d 234, 239 (Tex. 1997). When reviewing the charge for alleged error, we examine

the charge as a whole, considering the relationship between the abstract and

application portions of the charge. King v. State, 189 S.W.3d 347, 364 (Tex.App.--Fort

Worth 2006, no pet.).


       To avail oneself of the affirmative defense of duress, the accused must admit to

having engaged in the proscribed conduct. See Giesberg v. State, 984 S.W.2d 245

(Tex.Crim.App. 1998), cert. denied, 525 U.S. 1147, 119 S.Ct. 1044, 143 L.Ed.2d 51

(1999); Timms v. State, 2009 Tex.App. LEXIS 10042, at *3 (Tex.App.--Amarillo April 22,

2009, pet. ref'd). Forcing the State to carry its burden of proof is not an admission of the

charged offense. Id. at *5. Having failed to admit to the offense, Appellant was not

harmed by any alleged error in the manner in which the defensive issue of duress was

presented to the jury.




6
 The degree of harm necessary under Almanza v. State, 686 S.W.2d 157, 171 (Tex. 1984), is some harm
because the paragraph complained of was objected to and the trial court overruled the objection.


                                                9
          Furthermore, in order to meet the requirements of duress, the threat of death or

serious bodily injury must be imminent.7 (Emphasis added). An imminent threat has

two components of immediacy. Anguish v. State, 991 S.W.2d 883, 886 (Tex.App.--

Houston [1st Dist] 1999, pet. ref'd). First, the person making the threat must intend and

be prepared to carry out the threat immediately. Second, carrying out the threat must

be predicated upon the threatened person's failure to commit the charged offense

immediately. Id. The Texas Court of Criminal Appeals has determined that a threat of

death at some indefinite time in the future is insufficient to satisfy the requirement of

imminence. Blount v. State, 542 S.W.2d 164, 166 (Tex.Crim.App. 1976).


          Part of the State's theory in opposition to the defense of duress was that

Appellant was not acting under duress because he was not in imminent danger at the

time of the aggravated robbery.             The testimony elicited from Ramirez was that if

Appellant was apprehended, he would "deal with" him when he tried to get him out of

jail. He explained that he would carry out his threat at some time in the future. When

asked again, "you would have dealt with [Appellant] at some point in the future,"

Ramirez replied, "[o]f course." Ramirez also answered "no" when asked if he was within

"killing range" of Appellant at the time of the robbery. Because Ramirez's threat to

Appellant was a future threat, there was no threat of imminent death or serious bodily

injury.




7
 Appellant did not testify. This Court has found that one asserting the affirmative defense of duress must
admit to having engaged in the proscribed conduct. See Timms v. State, 2009 Tex.App. LEXIS 10042, at
*3 (Tex.App.--Amarillo April 22, 2009, pet. ref'd). Forcing the State to carry its burden of proof is not an
admission of the charged offense. Id. at *5.

                                                    10
       Based upon the record before us, we conclude that the trial court did not commit

reversible error by failing to submit a jury charge that properly instructed the jury

regarding the affirmative defense of duress. Issue two is overruled.


                               Reformation of Judgment


       In reviewing the record, it has come to this Court's attention that the trial court's

judgment contained in the clerk's record includes clerical errors. The summary portion

of the judgment reflects that Appellant entered a plea of guilty to the charged offense

while the reporter's record reveals that Appellant in fact entered a plea of not guilty after

the indictment was read. Additionally, the "Statute for Offense" reflects that Appellant

was convicted under "§ 22.02(b)(2)." However, aggravated assault of a public servant

is found at section 22.02(b)(2)(B) of the Texas Penal Code.


       This Court has the power to modify the judgment of the court below to make the

record speak the truth when we have the necessary information to do so. Tex. R. App.

P. 43.2(b). Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993). Appellate

courts have the power to reform whatever the trial court could have corrected by a

judgment nunc pro tunc where the evidence necessary to correct the judgment appears

in the record. Ashberry v. State, 813 S.W.2d 526, 529 (Tex.App.--Dallas 1991, pet.

ref'd). The power to reform a judgment is "not dependent upon the request of any party,

nor does it turn on the question of whether a party has or has not objected in the trial

court." Id. at 529-30.


       The record clearly shows that Appellant entered a plea of not guilty to the

indictment and that he was convicted pursuant to section 22.02(b)(2)(B) of the Texas

                                             11
Penal Code. Thus, we modify the trial court's judgment to reflect a plea of "not guilty"

and also modify the "Statute for Offense" to reflect "§ 22.02(b)(2)(B)" in the summary

portion of the judgment. As modified, the trial court's judgment is affirmed.




                                                 Patrick A. Pirtle
                                                     Justice



Publish.




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