Opinion issued January 12, 2016




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                            NO. 01-14-01016-CR
                          ———————————
                   GERARDO TAPIA-LOPEZ, Appellant
                                     V.

                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 177th District Court
                          Harris County, Texas
                      Trial Court Case No. 1399329


                        MEMORANDUM OPINION

     A jury found appellant, Gerardo Tapia-Lopez, guilty of the offense of

possession with intent to deliver a controlled substance weighing at least 400
grams,1 and it assessed his punishment at confinement for twenty-three years and a

fine of $1.00. In his sole issue, appellant contends that the trial court, in its charge,

erred in instructing the jury on his affirmative defense of duress.

      We affirm.

                                     Background

      Houston Police Department (“HPD”) Sergeant B. Roberts testified that on

August 16, 2012, while supervising a “street-level narcotics unit,” he received

information about an individual engaging in “narcotics trafficking” at an apartment

complex in Houston. HPD Officer M. Zamora testified that on August 16, 2012,

while conducting surveillance at the complex, he saw appellant entering several

apartments to clean carpeting. Zamora noted that the front door to each apartment

that appellant accessed was already unlocked, except for apartment 1303, which

appellant accessed with a key and then locked each time he left. At one point, two

men arrived, and appellant went with them into apartment 1303. After a few

minutes, the men left. Appellant then came out and got into a van, which he

merely moved to a different parking space.

      Later that afternoon, Officer Zamora saw appellant go to the back of the van,

remove a bucket, which appeared to be empty, and carry it into apartment 1303.

After approximately five minutes, appellant came out with the bucket, which

1
      See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.112(a) (Vernon
      2010).

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appeared to be “weighted down,” and got into the back of the van for “maybe a

minute.” Appellant then got out of the van without the bucket, got into a blue

sedan, and left the complex.

      Officer Zamora further testified that a canine unit was called in to check the

van, and the dog alerted to the smell of narcotics coming from inside of it.

Another officer conducted a traffic stop of appellant in the blue sedan, and the

officer brought him back to the apartment complex. Appellant then admitted that

he owned the van, and he gave Zamora his keys and permission to conduct a

search. During his search of the van, Zamora saw that the bucket that he had

previously seen appellant carrying contained “packages that appeared to be brick-

shaped, which [he] knew from experience contain[ed] narcotics.” The packages

were later identified as “4 kilos” of crystal methamphetamine. Zamora opined that

the amount seized was “equivalent to over 40,000 servings” and had a “street”

value of “over a half million dollars.” He noted that such an amount would

typically be possessed by a “wholesaler,” i.e., someone who sells to dealers. And

Zamora’s subsequent search of apartment 1303 revealed, in a kitchen cabinet,

bowls, which contained “methamphetamine oil,” and “bags,” which contained

small amounts of narcotics and are “commonly used to show samples of the

product.” Zamora explained that “most” “crystal meth[amphetamine] comes from

Mexico” and is brought into the United States in oil or powder form, then



                                         3
“cook[ed]” into crystallized form. Houston Forensic Science Center criminalist A.

Barker testified that the substances seized from appellant weighed 4,295.3 grams

and tested positive for methamphetamine.

      Appellant testified that he did in fact possess over 400 grams of

methamphetamine on August 16, 2012. He asserted, however, that he did so under

duress. Appellant explained that on the day of the offense, he received a telephone

call from Miguel Zuniga, who wanted to know where appellant was working and

told him that someone would be delivering “something” to him. Thirty minutes

later, a man delivered “four squares” to appellant, who did not know what the

packages contained. He just put them in the van. Appellant noted that Zuniga had

“threatened” him, and he felt that if he had refused, it would have resulted in his

death or the deaths of his family members.

      Appellant further explained that his parents, brother, and sister live in

Michoacan, Mexico. Zuniga also lived in Mexico, was involved in the narcotics

trade, and knew where appellant’s family lived. And Zuniga was “upset” because

appellant’s sister had just ended their engagement to marry. Appellant further

testified generally about the dangers of narcotics cartels in the area, noting that

“[t]here were frequently things on the news” and, in some cities, narcotics cartels

“kill [people], cut off their heads, they just shoot them.” If someone refuses to

help a member of a cartel, “they kill them.”



                                         4
      The trial court, sua sponte, included in its charge to the jury an instruction on

the affirmative defense of duress, as follows:

      [I]f you find from the evidence beyond a reasonable doubt that the
      defendant, Gerardo Tapia-Lopez, did commit the offense of
      possession with intent to deliver a controlled substance, namely,
      methamphetamine, weighing at least 400 grams by aggregate weight,
      including any adulterants or dilutants, as alleged in the indictment, but
      you further find by a preponderance of the evidence that Miguel
      Zuniga had threatened to kill or cause serious bodily injury to the
      defendant or another if he did not participate in said offense, and that
      the force or threats of force were such as would render a person of
      reasonable firmness incapable of resisting the pressure, and that the
      defendant was in fear of imminent loss of life or serious bodily injury
      to himself or another at the hands of Miguel Zuniga if he did not
      participate in the said offense and that so believing, he did participate,
      then you will acquit the defendant and say by your verdict “Not
      Guilty.”

             If, however, after viewing the facts from the defendant’s
      standpoint at the time, you do not find by a preponderance of the
      evidence that the defendant’s participation in the said offense, if any,
      was compelled by such threat of imminent death or serious bodily
      injury to himself or another at the hands of Miguel Zuniga 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.

(Emphasis added.) Appellant did not submit a proposed charge or request an

additional instruction. At the charge conference, he affirmatively stated that he

had no objections to the charge.

                                Standard of Review

      Generally, a trial court must instruct a jury by “a written charge distinctly

setting forth the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art.

                                          5
36.14 (Vernon 2007); McIntosh v. State, 297 S.W.3d 536, 542 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d). And a trial court has a duty to instruct the

jury on the law applicable to the case even if defense counsel fails to object to

inclusions or exclusions in the charge. Vega v. State, 394 S.W.3d 514, 519 (Tex.

Crim. App. 2013). A defendant is entitled to a jury instruction on any defensive

theory raised by the evidence or testimony when such an instruction is properly

requested. Booth v. State, 679 S.W.2d 498, 500 (Tex. Crim. App. 1984); see also

Shaw v. State, 243 S.W.3d 647, 655 n.7, 658 (Tex. Crim. App. 2007) (when

evidence raises defensive theory, theory must be submitted to jury regardless of

whether supporting evidence “strong, feeble, unimpeached, contradicted, credible,

or incredible”). However, a trial court “has no duty to sua sponte charge [a] jury

on unrequested defensive issues” because an unrequested defensive issue is not law

“applicable to the case.” Vega, 394 S.W.3d at 519. And a defendant may not

complain on appeal that a trial court failed to include a defensive instruction that

was not preserved by request or objection. Id.

      Where, however, a trial court “does charge on a defensive issue (regardless

of whether [it] does so sua sponte or upon a party’s request), but fails to do so

correctly, this is charge error subject to review under Almanza.” Id.; see Almanza

v. State, 686 S.W.2d 157, 171–73 (Tex. Crim. App. 1984). If an objection was

made at trial, reversal is required if the accused suffered “some harm” from the



                                         6
error. Vega, 394 S.W.3d at 519. However, if a proper objection was not made,

reversal is required only if the error caused “egregious harm.” Id.

      “Egregious harm exists when the record shows that a defendant has suffered

actual, rather than merely theoretical, harm from jury-charge error.” Mcintosh, 297

S.W.3d at 543; Almanza, 686 S.W.2d at 171. “Egregious harm consists of error

affecting the very basis of the case or depriving the defendant of a valuable right,

vitally affecting a defensive theory, or making the case for conviction or

punishment clearly and significantly more persuasive.” Mcintosh, 297 S.W.3d at

543. To determine whether a defendant has sustained harm from an instruction to

which he did not object, we consider (1) the entire charge, (2) the state of the

evidence, (3) arguments from counsel, and (4) any other relevant information.

Vega, 394 S.W.3d at 521; Mcintosh, 297 S.W.3d at 543.

                                    Jury Charge

      In his sole issue, appellant argues that the trial court, in its charge, erred in

its application of the law to the facts on his affirmative defense of duress because it

“limited the jury to finding for” him “only if [he] was in fear of imminent loss of

life or serious bodily injury at the hands of [Zuniga] alone,” and not also at the

hands of “other unknown individuals who were involved with Zuniga or involved

in a drug cartel.”    He asserts that the trial court’s instruction impermissibly




                                          7
narrowed the facts under which the jury could find duress, undercutting his defense

and causing egregious harm.

      “It is an affirmative defense to prosecution that the actor engaged in the

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)

(Vernon 2011). To establish compulsion, a defendant must prove that “the force or

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

the pressure.” Id. § 8.05(c). An imminent threat has two components: (1) the

person making the threat must intend and be prepared to carry out the threat

immediately and (2) the threat must be predicated on the threatened person’s

failure to commit the charged offense immediately. See Devine v. State, 786

S.W.2d 268, 270–71 (Tex. Crim. App. 1989); Anguish v. State, 991 S.W.2d 883,

886 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). Threats of future harm are

not sufficient. Devine, 786 S.W.2d at 271.

      Appellant argues that he presented evidence that his fear of imminent death

or serious bodily injury to himself or another included acts by “other unknown

individuals who were involved with Zuniga or involved in a drug cartel” because

he “spoke repeatedly in terms of being in fear of what ‘they’ might do to him or his

family,” as follows:




                                         8
[Defense Counsel]:   If you didn’t help—I guess essentially
                     you’re saying you were just holding these
                     things until someone picked then up?

[Appellant]:         They threatened me so that I could leave
                     them     there    until   somebody—well,
                     somebody supposed to call me so that I
                     could deliver them there.

[Defense Counsel]:   Deliver them?

[Appellant]:         Well, somebody was going to pick them up.

[Defense Counsel]:   And back to Miguel Zuniga, he threatened
                     you, right?

[Appellant]:         Yes.

[Defense Counsel]:   And did you feel that his threat, if you didn’t
                     help him out, would result in your death and
                     your family’s death?

[Appellant]:         Yes. I got very nervous.

[Defense Counsel]:   Did you think that this consequence of death
                     would happen like within a couple of
                     weeks?

[Appellant]:         At that moment I got really nervous, so I
                     wasn’t thinking about time. They could
                     have done it at the same time at the moment.

[Defense Counsel]:   So your feeling is if you don’t do this,
                     they’re going to kill my family. If I don’t do
                     this today, they know where my wife lives,
                     my kids live, my parents live, they’re going
                     to go over there and kill them?

[Appellant]:         Yes.



                              9
Appellant further testified that although he anticipated that the package to be

delivered would contain “drugs,” he “had to accept it.” Otherwise, “they” were

going to kill him or his family.

      “The duress defense is based on compulsion by threat and focuses on the

conduct of the person making the threat[].” Montgomery v. State, 588 S.W.2d 950,

953 (Tex. Crim. App. 1979).        A defendant’s claim of duress must have an

objective, reasonable basis. See Arroyo v. State, No. 14-01-00599-CR, 2002 WL

31043275, at *2 (Tex. App.—Houston [14th Dist.] Sept. 12, 2002, pet. ref’d) (not

designated for publication) (“compulsion” exists only if force or threat of force

would render person of reasonable firmness incapable of resisting (citing TEX.

PENAL CODE ANN. § 8.05(c)).

      Here, there is no evidence that any person other than Zuniga made threats to

appellant. See Montgomery, 588 S.W.2d at 953. And there is no evidence to

support an objective basis for his claim of compulsion. See Arroyo, 2002 WL

31043275, at *2. Appellant’s perceived fear, absent any actual threat by another of

imminent death or serious bodily injury, is insufficient to warrant an instruction

regarding compulsion imposed by “other unknown individuals.” See id. (“Without

evidence of a specific, objective threat, [the defendant’s] testimony about his vague

and subjective fears is insufficient as a matter of law to support an instruction on

duress.”); Mohabbat v. State, No. 01-91-00494-CR, 1993 WL 5277, at *6 (Tex.



                                         10
App.—Houston [1st Dist.] Jan. 14, 1993, pet. ref’d) (not designated for

publication) (defendant’s inference of threat insufficient to require instruction on

duress defense); see also Cameron v. State, 925 S.W.2d 246, 250 (Tex. App.—El

Paso 1995, no pet.) (no evidence to support objective basis for claim of

compulsion, where defendant “generally afraid” and presented “no evidence of any

specific, objective threat” made to him at time of commission of offense); Bernal

v. State, 647 S.W.2d 699, 706 (Tex. App.—San Antonio 1982, no pet.)

(defendant’s testimony that he “was afraid” co-defendant “might get violent”

insufficient to warrant duress instruction).

      In support of his argument, appellant relies on Vega, 394 S.W.3d at 519–20.

In Vega, a case involving the defense of entrapment, the defendant testified that he

was induced by a law enforcement officer, M. Whitlock, and a confidential

informant, “Jerry,” to engage in the offense of delivery of a controlled substance.

Id. at 516–17. The trial court, in its charge, however, allowed the jury to consider

only inducement by Whitlock. Id. at 518. The defendant argued on appeal that

inducement by Jerry should have been included in the application paragraph. Id.

And the court of criminal appeals held that the trial court’s instruction should have

included inducement by Jerry, Whitlock, or both, because the evidence showed

that Whitlock first learned about the defendant through Jerry and the defendant

testified that it was Jerry who had suggested that he deliver narcotics to Whitlock.



                                          11
Id. at 520. Here, however, there is no evidence of participation by anyone other

than Zuniga in making any threats against appellant.

      Further, a threat of death at some indefinite time in the future is insufficient

to satisfy the requirement of imminence.       Devine, 786 S.W.2d at 271.        And

appellant testified that the threat Zuniga posed was not imminent:

      [State]:         Now, when he threatened you, there was no—
                       [Zuniga] didn’t have anyone—he didn’t have anyone
                       kidnapped at the time or with him, did he?

      [Appellant]:     No.

      [State]:         He was just making a threat?

      [Appellant]:     Yes.

      [State]:         None of your family members were in imminent harm
                       at that second, right?

      [Appellant]:     No.

      We conclude that appellant has not shown that he was entitled to an

instruction on the defense of duress based on compulsion from “other unknown

individuals.” Accordingly, we hold that the trial court did not err in not including

“other unknown individuals” in its duress instruction to the jury.

      We overrule appellant’s sole issue.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Terry Jennings
                                             Justice

Panel consists of Justices Jennings, Keyes, and Bland.

Do not publish. TEX. R. APP. P. 47.2(b).




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