Reverse and Remand; Opinion Filed August 29, 2019.




                                               In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-18-00271-CR

                                  RICKY MORENO, Appellant
                                            V.
                                THE STATE OF TEXAS, Appellee

                       On Appeal from the 283rd Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F17-00878-T

                                            OPINION
                 Before Chief Justice Burns, Justice Myers, and Justice Molberg
                                    Opinion by Justice Myers
       A jury convicted appellant Ricky Moreno of aggravated kidnapping and assessed

punishment at forty-five years’ imprisonment and a $10,000 fine. In ten issues, appellant contends

the evidence was (1) legally and (2) factually insufficient to support the jury’s rejection of his

affirmative defense of duress; (3) the evidence was legally insufficient to support the jury’s

rejection of his justification defense of necessity; (4) the trial court improperly instructed the jury

on the law of parties; (5) the trial court erred in admitting video evidence; the trial court erred in

excluding from the guilt–innocence phase testimony from (6) Dr. Lisa Clayton, (7) Dr. Michael

Pittman, and (8) Detective Michael Yeric; (9) the trial court erred in denying appellant’s pretrial

motion to suppress; and (10) the sentence was disproportionate to appellant’s conduct during the

offense and punishments received by other bystanders. The State also brings a cross-point seeking

modification of the judgment.
       Based on the evidence the jury heard during the guilt–innocence phase of the trial, we

conclude there is legally sufficient evidence supporting the jury’s rejection of appellant’s

affirmative defense of duress and justification defense of necessity. However, we conclude the

trial court erred in categorically excluding from the guilt–innocence phase appellant’s proffered

testimony from Detective Yeric and expert witnesses Dr. Pittman and Dr. Clayton, and we

conclude appellant was harmed by this error. Accordingly, we reverse and remand.

                           BACKGROUND AND PROCEDURAL HISTORY

                                       I. Guilt–Innocence

       On the evening of July 1, 2016, Dallas Police Officer Jacob Deloof and other officers

responded to a 911 call regarding a possible dead body in the backyard of a home located at 755

Elwayne Avenue. At first the officers did not see anything, but then they heard noise coming from

a “finished, garage-type . . . structure” that was located on the property. They received additional

information about an armed suspect inside the structure, and officers surrounded it, set up a

perimeter, and took cover. A man, Martin Armijo, exited the structure and fled on foot. While

multiple officers chased Armijo, Officer Deloof entered the structure. He and other officers found

an injured woman, Avigail Villanueva, holding a shirt to her head. There was a large laceration

on her scalp and there appeared to be blood on her face and blood running down her arms. Deloof

testified that she was “hysterical,” “physically shaking,” and “she was extremely scared.” He

added that “[s]he was just extremely worried about her own safety and getting away from the

situation.” Officers took her outside, and medical professionals from Dallas Fire and Rescue cared

for her. She was taken to the hospital for medical treatment.

       Officer Kristen Greene was one of the officers who pursued Armijo. She jumped a fence

to get to Jonelle Avenue, the street that was to the west of Elwayne, eventually seeing Armijo. He

insisted he had done nothing wrong and claimed the real suspect, someone armed with a shotgun,

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had fled across the street. She held Armijo at gunpoint and waited for backup to arrive. He

continued to insist the suspect had fled across the street and gone in a westbound direction.

         Officers handcuffed Armijo and put him in a squad car. Officer Greene and her partner

then returned to the garage-type structure and went inside, finding the dead body of complainant

Jonathan Gutierrez. Officers secured the scene and called the medical examiner’s office, the

homicide division, and the crime scene division.1

         Justin O’Donnell, a crime scene analyst with the Dallas Police Department, and his

supervisor, Maurice Thomas, photographed the crime scene and collected evidence. O’Donnell

photographed the exterior of the property and the inside of the structure, observing and

photographing what appeared to be blood on a computer tower, the floor, and the wall. O’Donnell

also photographed Gutierrez’s body. He had injuries on his arms and head, and his hands were

bound with duct tape. O’Donnell observed and photographed a bottle of bleach, which he did not

collect but swabbed for possible DNA evidence. He photographed an assault rifle found inside

the structure near Gutierrez’s body. He also collected two handguns, an “Essex Arms .45 auto”

and a “Kimber .45 caliber semiautomatic handgun,” and gun magazines.

         Outside the structure, O’Donnell photographed two articles of clothing, a pair of shorts and

a black shirt. He observed, photographed, and collected a baseball bat found at the crime scene.

A folding knife was found under a bed and also collected as evidence. Thomas likewise processed

trash bags found outside the structure.

         Growing up in the Pleasant Grove area of Dallas, Texas, Villanueva met Jonathan Gutierrez

when she was thirteen years old. They dated for a couple of years and broke up, but they got back

together when Villanueva turned eighteen years of age. They had five children together. They



    1
      Officers Deloof and Greene wore body cameras that recorded their participation in the investigation, and that video footage
was admitted into evidence.

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lost custody of their children in 2014 because of their drug addictions, and the four oldest were

placed in the custody of Villanueva’s mother while Gutierrez’s mother took custody of the

youngest child. Villanueva and Gutierrez ended their relationship in 2015.

       Villanueva, like Gutierrez, was a methamphetamine and heroin user, and Villanueva

regularly bought and used drugs at the garage-type structure of Thomas Johnson (also known as

“T”), which was located behind his parents’ home at 755 Elwayne Avenue in Dallas, Texas.

Villanueva met Martin Armijo there, and they dated for five or six months. When they broke up,

Armijo told Villanueva he did not want to have anything to do with her and to stop texting and

calling him. Villanueva testified that Armijo had a reputation in the community for being violent,

and he encouraged that reputation.

       On July 1, 2016, Villanueva wanted to get some heroin and methamphetamine. She

planned to go to Johnson’s neighborhood to look for it because that was the only place where she

knew she could find it. But before going, she contacted Armijo because he had previously told

her that if he ever saw her in the neighborhood without him, he would beat her. Fearing she would

“bump into” Armijo, she texted him “to see where he was.” He responded, “I got your BD [baby

daddy] with me.” Armijo then called her and the first thing Villanueva said to him was, “[W]hat

are you talking about?” He answered, “I got Jonathan with me.” Villanueva recalled that “nothing

bad at all” “popped into my head” at first; she merely thought the two men had become friends.

But then Armijo said, “I been having him for the past couple hours.” Not sure what that meant,

Villanueva asked: “[W]hat do you mean for the past couple hours? What do you mean you been

having him?” And Armijo said, “Yeah, I got him right here.” Villanueva told Armijo she still did

not know what he was talking about, and he explained that he had been torturing Gutierrez, also

known as “Spook,” “for the past couple hours.” Villanueva testified that she was so shocked she

could not say anything. Armijo then asked her where she was, and Villanueva lied. She said she

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was at her mother’s house because she “was scared of what he was going to think or do if he found

out where I was––where I really was.”

       Villanueva immediately called her mother, who was at the bank, to find out where she was,

and Armijo called on the other line and told her to “come outside.” This led Villanueva to believe

Armijo was at her mother’s house in Mesquite, Texas, so she lied again, telling him she was with

her mother. Armijo answered, “Well, I’m outside,” and he said that he could “do federal time for

what I’m doing.” Armijo again asked her where she was, and Villanueva said she was with her

mother, that she would call him when they were finished, and that her mother would take her to

him.

       Villanueva recalled that, probably thirty to forty-five minutes later, she called Armijo and

told him her mother would not take her to Johnson’s apartment, but she would drive her to a nearby

gas station. At that point, Villanueva was about two blocks from that gas station, and she could

hear Armijo on the phone telling appellant Ricky Moreno to grab the keys and go pick her up at

the gas station. Appellant arrived alone at the gas station a few minutes later.

       Villanueva testified that she had known appellant for “[a] few years,” and she frequently

saw him at Johnson’s house or in the neighborhood. After appellant picked her up at the gas

station, she asked him what was going on, and he said Armijo “had been having Jonathan since

that night before.” Villanueva told him that Armijo had said he “only had him for a few hours,”

and it looked like appellant “kind of got scared that I told him that.” She said that appellant “told

me not to tell Martin what he told me.” She went inside the gas station to get something to drink,

and after she got back in the car, she asked appellant, “How bad was it? Was it something serious?”

He “kind of told me, he was like, ‘Yeah, yeah.’” They drove to another gas station where appellant

cashed some lottery tickets because he wanted to buy cigarettes, after which they drove to 755

Elwayne Avenue. Asked to describe appellant’s demeanor, Villanueva thought “[h]e looked kind

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of nervous.” She also recalled that he “kept smoking cigarettes on the way over” and “really didn’t

say much.”

       When they pulled up in front of the house, appellant told Villanueva to go and knock on

the door of the “back shack” where Johnson lived. Villanueva knocked, and she could hear Armijo

saying, “She’s here. She’s finally here,” before he opened the door. Villanueva went inside and

saw Gutierrez sitting on the floor in a corner of the room, leaning against a wall. He was not

talking. “He was just laying there, like he was in pain.” The “whole room was a wreck,” and

Armijo was holding a baseball bat. In addition to Armijo and Gutierrez, three other individuals,

appellant, Johnson, and David Rodriguez, also known as “GG,” were present. When Villanueva

first arrived, she saw Johnson standing on the other side of the room. Rodriguez was putting stuff

into trash bags. Asked if she saw any drugs being used, Villanueva testified that when she got

there she saw Johnson making “cheese,” which was “heroin mixed with pills.” Villanueva said

that “[a]ll of us,” including herself, were using the “cheese.”

       Villanueva recalled that she saw Armijo swing the bat at Gutierrez with both hands, hitting

him “[a] few times.” Gutierrez screamed at Armijo several times, “Stop.” Armijo also poured

bleach on Gutierrez, who did not say anything, just moving his head from side to side so the bleach

would not hit him in the face. Armijo then threw an open pocket knife at Gutierrez, and threw it

again and again, stabbing him “a few times.” Gutierrez was still moving at this point but not

saying anything. Armijo briefly turned his attention back to Villanueva, who insisted she had been

with her mother. Armijo said she was lying. He then turned back towards Gutierrez, who was no

longer moving. Armijo tried, unsuccessfully, to wake him up. Asked why Gutierrez had stopped

screaming and was no longer moving, Villanueva replied, “Because he was dead.”

       Villanueva testified that she “couldn’t believe it” when she realized Gutierrez was dead.

Appellant, meanwhile, went in and out of the garage while Armijo was attacking Gutierrez.

                                                –6–
Villanueva did not see Armijo hit appellant or David Rodriguez. After Gutierrez died, Armijo told

appellant to look for something to wrap up Gutierrez’s body, and he told Rodriguez to “start

cleaning.” Rodriguez started “putting stuff” into garbage bags and taking them outside. Armijo

told appellant to stay outside, adding that he should “watch out” and “make sure nobody . . . went

back there.” With appellant out of the garage, Armijo turned his attention to Villanueva, and she

believed Armijo wanted to “[k]ill me too.” Armijo struck Villanueva repeatedly with a .45-caliber

handgun, leaving bruising and other injuries on her head, arms, hands, and legs.

       After appellant left the garage, he picked up his mother and a man named “Eric,” who was

Johnson’s brother, and drove them to the nearby house of appellant’s brother, Alex Moreno.

Appellant lived with his mother in their family home on Ezekial Avenue, about two blocks from

the offense location. Moreno lived on Gillette, which he testified was about a five-minute drive

from the Ezekial address. Moreno testified that he got home from work at “a little bit after 4:00

o’clock” on July 1, 2016, and watched the news. His wife left to get something to eat for the

family, and Moreno took a shower. When he got out of the shower, he saw his mother and brother

“just standing in my hallway.” Moreno was not expecting them, and he recalled that “it was kind

of odd to see both of them at my house.”

       Moreno testified that appellant “looked frightened,” and he was “standing there with some

big eyes. He look[ed] scared.” Moreno asked his mother what they were doing, and she “snapped”

at appellant, prodding him with her elbow and saying, “Tell him. Tell him.” As Moreno recalled,

this appeared to have the effect of “snap[ping] [appellant] out of it.” Appellant said a murder had

occurred, and that “Martin just killed Spook.” Moreno asked if appellant had seen it, and appellant

replied, “Man, Martin is there.” This led Moreno to think the police “had already got there and

everything.” He asked, “[W]hat did the cops do? Did they take him to jail?” Appellant said the

body was “still there,” as was Armijo, and that “I just got away from them.” Appellant also said

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the police had not yet been called, to which Moreno replied, “We need to call the police,” and he

called 911. He gave the phone to appellant during the 911 call (admitted into evidence) to answer

the dispatcher’s questions. Moreno told the dispatcher appellant had been held at gunpoint, and

appellant provided details regarding the location and the suspect’s name. On cross-examination,

Moreno acknowledged that appellant did not tell him or the 911 operator that anyone else was in

danger at the offense location. Police officers soon arrived at Moreno’s house and asked appellant

to accompany them to the crime scene.

       Detective Casey Shelton of the Dallas Police Department was the lead detective on the

case. He arrived at the crime scene and talked to the patrol officers, getting a brief summary of

what happened. Shelton explained that 755 Elwayne was a small house that included a driveway

to the right of the property and what was originally a garage in the rear of the property. This

structure appeared to have been converted into two rooms for living purposes, and it was there that

Gutierrez’s body was found. He said the interior of this garage-type structure was “in disarray”

and that “[i]t was a mess,” with “just stuff everywhere.” He recalled that there were garbage bags

found outside this two-room structure that contained pillow cases, sheets, and towels, some of

which appeared to have blood stains. He also saw towels and other linens inside the structure, and

some of these likewise appeared to have blood stains.

       After visiting the crime scene Shelton went to the hospital to speak to Villanueva while his

partner interviewed appellant. Shelton testified that Villanueva appeared to have been beaten. She

provided an account of the actions of Armijo (who she identified by name), Rodriguez (who she

referred to by his nickname, “GG”), and appellant. Shelton testified that his investigation revealed,

initially, that appellant was present for the majority of the offense against Gutierrez, and that, at

one point, he picked up Villaneuva from one location and brought her to the offense location on

Elwayne. It further showed, according to Shelton, that appellant assisted in abducting and

                                                –8–
restraining Gutierrez, and that he assisted in cleaning up the crime scene by purchasing bleach and

towels.

          As part of his investigation, Detective Shelton interviewed Johnson and Rodriguez, and he

obtained Armijo’s cell phone records. The cell phone records included text messages sent on the

afternoon of July 1, 2016, from Armijo’s phone to a phone number officers believed was associated

with Villanueva. Among the text messages was one sent at 1:50 p.m., in which Armijo texted,

“Call me asap.” At 1:51 p.m. he texted, “I need to talk important.” At 1:54 p.m. he texted, “U

have ur nd I got him here with.” Shelton noted that “nd” was a reference to Gutierrez, and that

Armijo was holding him. Thirty-nine seconds later Armijo texted, “Call me.” At 2:04 p.m. he

texted, “R u coming?” At 2:12 p.m. he texted, “I’ve been flicking ur bd for like 2 hours,” and

Shelton testified that “bd” again referred to Gutierrez, who Armijo had apparently been holding

for at least two hours. At 2:14 p.m. he texted, “I fucked hm up d homies holding for me,” which

led Detective Shelton to conclude Armijo’s friends had been holding Gutierrez. At 2:28 p.m.

Armijo texted, “I’m gonna hold him for 2,” and thirteen seconds later he texted, “Get over here.”

          Armijo also recorded a two-minute and thirty-three second cell phone video that briefly

shows appellant in the background. In this video, which was admitted into evidence and played

for the jury, Armijo and Gutierrez are in the garage at 755 Elwayne. Armijo is holding a pistol

and pointing it at Gutierrez, repeatedly taunting and threatening him. Gutierrez––bound, bleeding

and apparently severely beaten––begs for his life and expresses his desire to leave the residence.

Toward the end of the video, appellant can be seen entering the room while Armijo is talking into

the camera. Appellant is walking around the bed and holding what appears to be a bottle of bleach

in a plastic grocery store sack. He places the bleach and what look like towels on the bed. Shelton

testified that appellant got the bleach and towels to clean up the blood inside the garage, and that,

based on the detective’s review of the video, appellant did not appear to be afraid.

                                                –9–
       Homicide Detective Pedro Trujillano interviewed appellant at Dallas Police Headquarters

on July 1, 2016. When Trujillano first entered the interview room appellant asked, “Where is my

buddy, Mr. Yerik?” Yerik had been a homicide detective with the Dallas Police Department, and

appellant explained that he had become acquainted with him when “[m]y dad was killed in 2012.”

During the recorded interview, which was admitted into evidence, Detective Trujillano observed

stains on the upper part of appellant’s white t-shirt––towards the neckline––that he thought might

have been blood, but he did not see any cuts on appellant’s body near that area. Appellant did not

make any statements about injuries he suffered or pain. Trujillano testified that at times during

the interview appellant “seemed scared,” but that “[s]ometimes he talked and smiled and laughed

a little bit.” Trujillano added, “It’s not uncommon.”

       Appellant told the detective that he arrived at the garage-type structure on 755 Elwayne at

between 12:30 and 1:00 o’clock, and that Gutierrez, or “Spook” as he sometimes called him,

arrived at around 2 o’clock. Appellant said that he and Gutierrez were friends and that he had no

“beef” with him. Appellant explained that he knew Armijo was dating Villanueva, Gutierrez’s

“baby mama,” and that Armijo had always been known to carry a pistol. Appellant said they were

“chilling out” when Armijo pulled out his gun, took out the clip, and walked over to Gutierrez.

Armijo struck Gutierrez with the gun, saying, “Bitch, this is for Avi,” and he continued to hit him.

Appellant told the detective that Armijo started “beating the shit” out of Gutierrez. Appellant and

Johnson (who was also present) said, “Chill out Dude,” and Armijo pointed the gun at them, telling

them not to get involved.

       Appellant told Armijo that he was going outside. He helped Johnson’s little brother, Eric,

with his car, and then appellant drove Eric to the train station because Eric had to go to work.

Appellant drove Eric’s car to an auto repair shop, where he stayed for about forty-five minutes to

an hour. Appellant went to a “smoke shop” next door to buy a pack of cigarettes, and he bought

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some fireworks. When he returned to the garage, Johnson was in his room inside the “main house.”

          Appellant knocked on the door to the garage, went inside, and saw “blood everywhere.”

Gutierrez appeared to be dead. Armijo kicked Gutierrez, saying, “The fucker made me kill him.”

Armijo pointed an “AR” rifle (which appellant described as, “Like an M16”) at appellant, which

made him think Armijo was “going to shoot me.” Appellant told Armijo, “Hey bro, chill out,

man.” Armijo said to appellant, “You ain’t gonna say nothin, right?” Appellant said he was “just

scared” when he saw the “red dot” from the rifle’s sight pointed at him, adding that he had been

shot before “and it was no fun.” Appellant became emotional and started crying as he talked about

what happened to Gutierrez and how badly he had been beaten, saying he “didn’t deserve that.”

          Appellant told the detective that he got out of the garage by telling Armijo he was going

outside to “keep a lookout,” and that he grabbed a rake and briefly pretended to work because he

suspected Armijo could see him through a video surveillance camera.2 Several minutes later, Eric

pulled up to the house with his girlfriend. Appellant said that Eric could tell from the way appellant

was looking at him that something was wrong. Eric grabbed his bag and started walking toward

the garage, and appellant told him they should “just go” because appellant had “killed Spook.”

Eric drove appellant to his house, which was two blocks away. Appellant got his mother and went

to his brother’s house, where the police were called.

          Regarding Villanueva, appellant said that she was already at the garage when he returned

after driving Eric’s car to the auto repair shop, and she did not say anything. He told the detective

she “just showed up.” Appellant said he had known Armijo for about ten years, and they had all


     2
       Villanueva testified that there was a video surveillance system at the Elwayne property. The camera was mounted on the
corner of the garage, so that somebody on the inside could look at a video monitor or television screen and see people coming down
the driveway towards the garage. She also testified that this surveillance system had been in place for a long time––as long as she
had been going to T’s––and it was working on the day of the offense. One of the photos taken by crime scene analyst Justin
O’Donnell showed a cable above the door to the garage that looked like it is going to a “mount of some sort,” and it was possible
this mount could have been for a surveillance camera. But he added that he did not recall seeing a surveillance camera mounted
on the garage, and he could not say whether someone on the inside of the garage could see people coming and going.


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grown up in the same neighborhood. He described Armijo as the type of individual “I would try

to avoid.” Toward the end of the interview, at around 10:00 p.m., appellant identified Armijo in a

photographic lineup as the person he had seen beating Gutierrez, and appellant cried when the

police showed him Armijo’s picture in the lineup.3 Trujillano testified that appellant was a witness

to the offense at this point and not under arrest, and he freely left the police headquarters after the

interview.

          Detective Shelton conducted a second interview of appellant at appellant’s home on July

6, 2016, but this second interview, also recorded and admitted into evidence, differed in some ways

from the first. Appellant admitted leaving the garage and returning twice, first to buy cleaning

supplies and then to retrieve Villanueva––both times at Armijo’s direction. He admitted holding

down Gutierrez’s legs––again, at Armijo’s direction––while Armijo taped his hands together, and

appellant admitted leaving the garage to buy bleach and towels to clean up the crime scene.

Appellant also admitted picking up Villanueva and bringing her to the garage after initially

denying he had done so. As before, appellant said that he feared Armijo. Shelton interviewed

Villanueva again after appellant’s second interview, and Shelton testified that her second interview

was consistent with the first.

          Detective Shelton obtained arrest warrants relating to Gutierrez’s death for Armijo,

appellant, Rodriguez, and Johnson. He did not seek an arrest warrant for Villanueva because he

had no information indicating she took an active part in the offense. He concluded that appellant

assisted Armijo in the aggravated kidnapping of Gutierrez “[b]ased on––on his statements that he

assisted in the restraining, the abduction of––of Mr. Jonathan Gutierrez by holding him down while

his hands were bound, preventing him from––from fleeing.” Shelton testified that it did not appear

appellant acted under duress. He explained that, because appellant was able to leave the offense


   3
       This portion of the interview was introduced into evidence by the defense.

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location several times, he did not appear to have been under the immediate threat of bodily harm

or death. Once the arrest warrant was issued, appellant turned himself in to the police.

       The State also offered evidence regarding forensic DNA testing. Courtney Ferreira, a DNA

analyst at the Southwestern Institute of Forensic Sciences (SWIFS), testified that she performed

DNA testing on several items of evidence. She testified that no DNA profile was obtained from a

stain on a pair of scissors or from one stain on a pink towel. Stains on pieces of duct tape and a

stain from a coaxial cable contained single-source contributions that matched Gutierrez’s DNA

profile and excluded appellant and Armijo. Another stain from a coaxial cable contained a mixture

of DNA, which included Gutierrez and appellant as possible contributors but excluded Armijo.

One stain from the same coaxial cable contained a mixture of DNA from four contributors and

included Gutierrez, appellant, and Armijo as possible contributors. A sample from a pair of

scissors consisted of a profile from a single contributor that matched Gutierrez’s DNA profile and

excluded appellant and Armijo. A low-level sample from a pink towel contained DNA from a

single contributor and included appellant and Gutierrez as possible contributors. A stain from a

green towel contained DNA from a single individual; Gutierrez was included as a possible

contributor while appellant and Armijo were excluded. Another stain from a green towel contained

a mixture of two contributors, and appellant, Armijo, and Gutierrez were all possible contributors.

Regarding the bleach that was used to clean up the crime scene, Ferreira was asked how strong

bleach was, and she acknowledged that bleach had been “shown to take away or clean up DNA or

anything like that.”

       Appellant presented the testimony of Duane Westerlund, a sergeant with the Dallas Police

Department, who was dispatched to Gillette Street in Dallas, Texas, on July 1, 2016. Police had

received a 911 call regarding a person who said he observed a murder at a different location.

Sergeant Westerlund spoke to this person––appellant––who told the sergeant he had been “in a

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back apartment” of a house on Elwayne Avenue and that he witnessed a murder there. Appellant

also said he knew the victim and the offender, both of whom he identified by name. Appellant

“was visibly shaken up,” emotionally upset, and frightened when he spoke to Sergeant Westerlund,

telling the officer he had been threatened and that Armijo pointed a gun at him. Appellant told the

officer he tried to get away from the suspect to call 911. Westerlund testified on cross-examination

that appellant had said the torture lasted “an extended period of time.” Appellant, however, did

not tell the officer he had left the garage to buy cleaning supplies and then returned to the crime

scene; that it was appellant’s intention to help clean up the blood at the crime scene; that he held

the victim’s legs while his hands were bound; or that the purpose of the kidnapping was to lure

Villanueva to the garage so she could see Gutierrez “in this condition.”

       Appellant was indicted for aggravated kidnapping. The trial court charged the jury on the

law of parties, the affirmative defense of duress, and the defense of necessity. During their closing

arguments, both parties focused on the extent to which appellant’s actions such as coming and

going from the offense location, buying bleach, towels, cleaning supplies, and so on, made him a

party to the aggravated kidnapping. The defense argued appellant did all of these things, and, also,

that he held down Gutierrez’s legs, because Armijo pointed a gun at appellant and appellant feared

Armijo was going to kill him or harm his family––not, in other words, because appellant willingly

aided in the commission of the offense.

       The State focused on appellant’s dishonesty and called jurors’ attention to the lies appellant

told during his recorded statements to the police. The State argued that appellant offered willing

assistance to Armijo and “knew what was going on,” and “knew exactly what he was a part of.”

The State also noted that some people––Thomas Johnson and David Rodriguez for example––

freely left the garage at various times during the offense, and appellant left twice. The State asked

why a “madman” supposedly feared throughout the neighborhood would let so many people leave.

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The State pointed out that the only person who said Armijo pointed a gun at appellant was appellant

himself, and this was a self-serving statement. Toward the end of its argument, the State played

the cell phone video that showed appellant moving in the background as Armijo spoke into the

camera and argued, “There is no duress to that.”

       The jury ultimately found appellant guilty of aggravated kidnapping as charged in the

indictment. Before the start of the punishment phase, appellant entered a plea of not true to the

enhancement paragraph alleging a prior felony conviction for aggravated assault.

                                          II. Punishment

       The State presented the punishment testimony of Dr. Tracy Dyer, the medical examiner

with the Dallas County Medical Examiner’s Office who performed the autopsy on Gutierrez. She

testified that Gutierrez’s body “had a lot of blunt trauma, and he had some sharp-force injuries as

well. And then basically every different area of his body had some of each of these.” He had stab

wounds to the lower lobe of his left lung and his liver. These wounds had been caused by a sharp

instrument, “probably a knife of some type.” Both of Gutierrez’s arms were fractured. “There

were abrasions, scrapes, and marks on the tops of both shoulders,” and abrasions on the back. Both

of Gutierrez’s hands “were very swollen,” as though they “had been struck or struck against

something.” Toxicology tests showed the presence of methamphetamine and some amphetamine

(probably a metabolite of the methamphetamine) in Gutierrez’s blood. Dr. Dyer testified that

“[t]he cause of death was blunt and sharp-force injuries.”

       The State also called Dallas Police Officer John Puente, with the department’s gang unit,

who transported appellant to the county jail after he turned himself in on the arrest warrant. Officer

Puente testified that appellant spoke of his gang affiliation, saying that he was a member of Tango

Blast, a prison gang. The officer observed a star tattoo with a “214” on it, which correlated with

gang membership. Detective Shelton testified that during appellant’s second interview, appellant

                                                –15–
told him he had left the scene because he believed Armijo would kill him for witnessing Gutierrez’s

murder. Gutierrez’s father, Mario Ovalle, testified about the effect Gutierrez’s death had on the

family.

          Darrell Doty, an investigator with the Dallas County District Attorney’s Office, testified

that he fingerprinted appellant and compared the prints with those in State’s exhibits 114 through

118, which were certified prior convictions. The exhibits showed prior convictions for aggravated

assault with a deadly weapon (State’s exhibit 114); unlawful possession of a controlled substance,

heroin (State’s exhibit 115); unlawful possession of a controlled substance, cocaine (State’s exhibit

116); “[e]vading arrest detention facility using vehicle” (State’s exhibit 117); and unlawful

possession of a controlled substance, cocaine (State’s exhibit 118). Doty positively identified

appellant’s fingerprints as those associated with State’s exhibits 114, 115, 116, and 117, and he

explained that State’s exhibit 118 was styled the State of Texas versus Ricky Moreno (out of the

282nd Judicial District Court of Dallas County) but it did not include a fingerprint card.

          Appellant presented evidence regarding his father’s murder in 2012 during a home invasion

and the effect it had on him. Dr. Lisa Clayton, “a medical doctor specializing in the field of

psychiatry with a subspecialty in forensic psychiatry,” testified about her evaluation of appellant

and her conclusions. She said that based on her evaluation of appellant and the information she

had reviewed––including police reports, witness statements, video recorded by Armijo on his

phone, appellant’s school records, and hospital and jail records––appellant suffered from post-

traumatic stress disorder (PTSD) stemming from the 2012 home invasion during which his father

was murdered. Dr. Clayton explained that appellant’s father had died in his arms, and after that

appellant exhibited symptoms of PTSD and had a variety of “intrusive thoughts” and nightmares;

often cried; did not like to associate with family because they reminded him of his father;

“increased his drug usage”; and was unable to sleep. She testified that she did not think appellant

                                                –16–
was “malingering” (i.e., “faking or exaggerating symptoms for secondary gain”) the symptoms of

PTSD, noting he had an IQ of between 75 and 85, was “not very bright,” and he was not “smart

enough to know the symptoms and then repeat them back to me.” She added that the way in which

appellant described his symptoms and his physical reaction further convinced her appellant was

not “faking symptoms of PTSD.” She opined that because appellant had PTSD, he would have

seen himself as a victim and been more fearful in a situation involving guns and violence. He also

had “an over-exaggerated sense of worry about his mother and something happening to her.”

Regarding how appellant’s psychiatric condition affected his behavior on July 1, 2016, Dr. Clayton

said that appellant’s condition “made him more fearful and less––I guess less––that he didn’t act

appropriately in that situation.” When Armijo threatened appellant’s family, appellant “believed

that that could actually happen, and that caused him to not go get help sooner.” On cross-

examination, Dr. Clayton testified that she did not prepare a report of her findings, explaining that

she was not asked to prepare one. She also explained that she did not perform any standardized

testing in her evaluation of appellant, saying that practice did not really exist in forensic psychiatry.

        Detective Michael Yeric testified that he was the lead detective in the 2012 case involving

the murder of appellant’s father, Lorenzo Moreno. Yeric testified as follows:

        In that case, there was a man in his 60s that was killed inside of his home during a
        home invasion robbery. There was a group of young people––in some cases were
        very young––between the ages of 13 and 17 that did a home invasion on the house.
        There was a girl involved in the home invasion that had an issue with the girl that
        lived at the house. That was the––the reason for the––the home invasion.

        They go in the house. During the incident, there’s––there’s a lot of, you know,
        confrontation and fighting and whatnot, during which the––the man––the 66-year-
        old man––was shot in the chest with a shotgun and killed.

        The 16-year-old girl in the back was––attempted to be stabbed, but the knife was
        dull enough that it didn’t actually really get in the bed sheets and the comforter. It
        poked her, but no serious wounds.

        The man that was killed, his wife was––was beaten inside the house and his son
        was beaten on the front porch.

                                                 –17–
The offense occurred just after midnight, and Detective Yeric believed the members of the Moreno

family were innocent victims. Yeric identified appellant as the son who was beaten on the porch,

and the girl who lived at the house was appellant’s niece, Olivia Hernandez. Five people were

charged in the offense. Yeric believed a total of seven people were probably involved, but the

police were never able to positively identify the other two suspects. Appellant offered––and the

trial court admitted––photographs of the crime scene that depicted damage to appellant’s home,

blood from where appellant’s father was shot, and blood spatter on a Ford pickup in the driveway

of the home. The defense also presented photographs of appellant in the hospital following the

attack that showed appellant’s facial injuries––contusions around the face, facial injuries, and

blood.     On cross-examination, Detective Yeric testified that what happened in 2012 was

undoubtedly a traumatic event but he did not think being a crime victim excused later criminal

conduct.

         Olivia Hernandez testified that, prior to appellant’s arrest in this case, appellant cared for

his mother, who suffered from various health problems. Hernandez testified about the 2012 home

invasion, recalling that it occurred at close to midnight and that the entire family––Hernandez, her

grandmother, her grandfather, and appellant––was in the home. She said she was injured during

the attack, suffering three gashes to her head and small cuts on her stomach. She said she had

never seen appellant behave violently toward anyone or even hurt an animal, and she described

him as a loving member of the family––adding that all of appellant’s family loved and cared about

him. On cross-examination, she said she was unaware appellant had prior felony convictions but

knew he had been in prison because she had visited him there with her grandparents. She testified

she had never heard appellant claim membership in the Tango Blast gang. She said she and her

family were aware appellant had a drug addiction, and that it “became really worse” after the 2012

home invasion. Appellant blamed himself for what happened to his father and “felt like he could

                                                 –18–
have fought harder.”

          The jury found the enhancement paragraph true and assessed punishment at forty-five

years’ confinement and a $10,000 fine.

                                                          DISCUSSION

                                                            I. Duress

          In his first issue, appellant contends the evidence is legally insufficient to support the jury’s

rejection of the affirmative defense of duress.4

          Unlike criminal convictions that are subject only to legal sufficiency review, we may

review a finding rejecting an affirmative defense for both legal and factual sufficiency. Butcher

v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015); Matlock v. State, 392 S.W.3d 662, 668–70

(Tex. Crim. App. 2013). When a defendant challenges the legal sufficiency of the evidence

supporting the jury’s rejection of an affirmative defense, we examine the record for any evidence

that supports the jury’s negative finding while ignoring all evidence to the contrary, unless a

reasonable jury could not. See Matlock, 392 S.W.3d at 669. If no evidence supports the jury’s

negative finding, we examine the entire record to determine whether the evidence establishes the

issue as a matter of law. Id. A jury’s finding on a defendant’s affirmative defense should be

overturned for lack of legally sufficient evidence only if the evidence conclusively proves the

affirmative defense and no reasonable jury was free to think otherwise. Id. at 670.

          To establish the affirmative defense of duress, a defendant must prove by a preponderance

of the evidence that he committed the offense because he was compelled to do so by threat of



     4
       We address appellant’s legal sufficiency issues because, in the event they are meritorious, we would render a judgment of
acquittal rather than reverse and remand. See, e.g., Benavidez v. State, 323 S.W.3d 179, 181 (Tex. Crim. App. 2010) (appellate
courts render judgment of acquittal only when trial court’s ruling amounts to de facto acquittal or appellate court finds evidence
was legally insufficient to support conviction); O’Reilly v. State, 501 S.W.3d 722, 727 (Tex. App.––Dallas 2016, no pet.) (legal
sufficiency challenge must be addressed first because if evidence is insufficient, reviewing court must render judgment of acquittal).
But see Matlock v. State, 392 S.W.3d 662, 672 (Tex. Crim. App. 2013) (if appellate court conducting factual sufficiency review
finds the evidence supporting an affirmative defense so greatly outweighed State’s contrary evidence that verdict was manifestly
unjust, the court reverses the trial court’s judgment and remands case for new trial).

                                                               –19–
imminent death or serious bodily injury to himself or another. TEX. PENAL CODE ANN. § 8.05(a).

Compulsion “exists only if the force or threat of force would render a person of reasonable firmness

incapable of resisting the pressure.” Id. § 8.05(c); see also Edwards v. State, 106 S.W.3d 833, 843

(Tex. App.––Dallas 2003, pet. ref’d). “‘Imminent’ means something that is immediate, something

that is going to happen now.” Murkledove v. State, 437 S.W.3d 17, 25 (Tex. App.—Fort Worth

2014, pet. dism’d, untimely filed) (citing Dewalt v. State, 307 S.W.3d 437, 454 (Tex. App.—

Austin 2010, pet. ref’d)). “Harm is imminent when there is an emergency situation and it is

‘immediately necessary’ to avoid that harm, in other words, when a ‘split-second decision’ is

required without time to consider the law.” Id. (quoting Pennington v. State, 54 S.W.3d 852, 857

(Tex. App.—Fort Worth 2001, pet. ref’d)). Imminence “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.” Cormier v. State, 540 S.W.3d 185, 190 (Tex. App.—Houston [1st Dist.] 2017, pet.

ref’d) (citing Devine v. State, 786 S.W.2d 268, 270–71 (Tex. Crim. App. 1989), and Anguish v.

State, 991 S.W.2d 883, 886 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d)); see also Ramirez

v. State, 336 S.W.3d 846, 851 (Tex. App.—Amarillo 2011, pet. ref’d).

       Imminent harm must be shown by affirmative evidence. Darty v. State, 994 S.W.2d 215,

218–19 (Tex. App.—San Antonio 1999, pet. ref’d). A threat of harm at some indefinite time in

the future is insufficient to satisfy the requirement of imminence. Ramirez, 336 S.W.3d at 851–

52; Anguish, 991 S.W.2d at 886. The affirmative defense of duress is not available “if the actor

intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that

he would be subjected to compulsion.” TEX. PENAL CODE ANN. § 8.05(d). Also, evidence of a

generalized fear of harm is not sufficient to raise the issue of imminent harm. Brazelton v. State,

947 S.W.2d 644, 648 (Tex. App.––Fort Worth 1997, no pet.). If undisputed facts indicate a

                                               –20–
complete absence of immediate necessity or imminent harm, then a defendant’s sincere belief that

his conduct is immediately necessary to avoid imminent harm is unreasonable as a matter of law.

Dewalt, 307 S.W.3d at 454.

       Appellant attempts to show he participated in the charged offense under duress by pointing

to evidence Armijo threatened him and pointed a gun at him. The record shows Armijo had two

handguns and an assault rifle in the garage where he tortured and killed Gutierrez. In addition, the

jury heard Villanueva testify that appellant seemed nervous when he picked her up at a gas station

and drove her to the garage. Appellant’s brother, Alex Moreno, testified that appellant looked

scared when he arrived at his house on July 1, 2016. Detective Trujillano testified that appellant

became emotional during the July 1, 2016 interview, and both Trujillano and Detective Shelton

acknowledged that appellant repeatedly said he was frightened during the incident. Appellant told

detectives that Armijo pointed a gun at him.

       But the only evidence that Armijo threatened appellant with a gun came from appellant’s

account of the incident, which the jury was free to reject. Moreover, appellant’s claim of duress

is inconsistent with evidence showing he twice left the garage alone and returned while Armijo

remained there and continued beating and torturing Gutierrez. The jury could have also taken into

account facts such as Armijo’s cell phone video apparently showing appellant entering the room

and walking around the bed while Armijo was talking into the camera, and appellant’s apparent

hesitation in reporting the incident––first picking up his mother and then going to his brother’s

house, where his brother insisted they call 911. Based on the evidence, the jury could have

rationally concluded appellant was not faced with an imminent threat to himself or his mother.

See, e.g., Murkledove, 437 S.W.3d at 25; Dewalt, 307 S.W.3d at 454.

       Although there was evidence appellant feared Armijo, that he told detectives Armijo

pointed a gun at him, and that he was afraid Armijo would harm himself or his family may

                                               –21–
circumstantially support a finding of duress, it does not conclusively establish such a finding—

particularly given the evidence showing appellant repeatedly going to and from the offense

location. Because some evidence exists to support the jury’s implied negative finding on duress,

the record satisfies the first part of the legal sufficiency standard, and we need not consider the

second part of the analysis. The evidence is, thus, legally sufficient to support the jury’s negative

finding on duress. We overrule appellant’s first issue.

                                                       II. Necessity

         In his third issue, appellant argues the evidence was legally insufficient to support the jury’s

rejection of appellant’s justification defense of necessity.5

         When reviewing the sufficiency of the evidence, an appellate court considers all of the

evidence in the light most favorable to the verdict to determine whether the jury was rationally

justified in finding guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318–

19 (1979); State v. Bolles, 541 S.W.3d 128, 133–34 (Tex. Crim. App. 2017); Brooks v. State, 323

S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). An appellate court is required to defer to

the jury’s credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given to their testimony. See Jackson, 443 U.S. at 319, 326;

Bohannan v. State, 546 S.W.3d 166, 178 (Tex. Crim. App. 2017); Brooks, 323 S.W.3d at 899.

         “Necessity is a statutory defense that exonerates a person’s otherwise illegal conduct.”

Stefanoff v. State, 78 S.W.3d 496, 500 (Tex. App.—Austin 2002, pet. ref’d). Conduct is justified

by necessity if:

         (1) the actor reasonably believes the conduct is immediately necessary to avoid
         imminent harm;



    5
      Because necessity is a defense rather than an affirmative defense, see Bowen v. State, 162 S.W.3d 226, 229 (Tex. Crim. App.
2005), the Jackson v. Virginia legal sufficiency standard applies. See, e.g., Strauser v. State, No. 04–16–00478–CR, 2017 WL
4657467, at *1 (Tex. App.––San Antonio Oct. 18, 2017, no pet.) (mem. op., not designated for publication); Pridgen v. State, No.
12–13–00136–CR, 2014 WL 6792583, at *1 (Tex. App.—Tyler Dec. 3, 2014, pet. ref’d) (mem. op., not designated for publication).

                                                             –22–
       (2) the desirability and urgency of avoiding the harm clearly outweigh, according
       to ordinary standards of reasonableness, the harm sought to be prevented by the law
       proscribing the conduct; and

       (3) a legislative purpose to exclude the justification claimed for the conduct does
       not otherwise plainly appear.

TEX. PENAL CODE ANN. § 9.22; see Stefanoff, 78 S.W.3d at 500.

       A necessity defense requires that the defendant reasonably believe his conduct is

immediately necessary to avoid a greater harm. See TEX. PENAL CODE ANN. § 9.22; Mays v. State,

318 S.W.3d 368, 385 (Tex. Crim. App. 2010). A “‘[r]easonable belief’ means a belief that would

be held by an ordinary and prudent man in the same circumstances as the actor.” TEX. PENAL

CODE ANN. § 1.07(42); see Mays, 318 S.W.3d at 385; see also Harper v. State, 508 S.W.3d 461,

467–68 (Tex. App.—Fort Worth 2015, pet. ref’d); Cummings v. State, No. 05–17–00852–CR,

2018 WL 3629105, at *5 (Tex. App.––Dallas July 31, 2018, pet. ref’d) (mem. op., not designated

for publication). Whether the accused’s belief is reasonable is a question of fact and should be

viewed from the accused’s standpoint at the time he acted. See Fitzgerald v. State, 782 S.W.2d

876, 885 (Tex. Crim. App. 1990). “‘Imminent’ means something that is impending, not pending;

something that is on the point of happening, not about to happen.” Schier v. State, 60 S.W.3d 340,

343 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d); see also Stefanoff, 78 S.W.3d at 501.

“‘Harm’ means anything reasonably regarded as loss, disadvantage, or injury, including harm to

another person in whose welfare the person affected is interested.” TEX. PENAL CODE ANN. §

1.07(a)(25).

       The defendant has the initial burden of producing evidence regarding the necessity defense.

See Stefanoff, 78 S.W.3d at 500; Cummings, 2018 WL 3629105, at *5. If the defendant makes this

initial showing, the burden shifts to the State to disprove the necessity defense beyond a reasonable

doubt. See Stefanoff, 78 S.W.3d at 500; Cummings, 2018 WL 3629105, at *5. If the jury finds the

defendant guilty, it implicitly rejected his defensive theory. Zuliani v. State, 97 S.W.3d 589, 594

                                               –23–
(Tex. Crim. App. 2003).

       To reinforce his argument that the evidence was legally insufficient to support the jury’s

rejection of his necessity defense, appellant emphasizes that on both occasions when he left the

garage––to buy cleaning supplies and to retrieve Villanueva––he was ordered to do so by Armijo.

In addition, when appellant held down Gutierrez’s legs while Armijo taped his hands, appellant

did this, too, at Armijo’s direction. Appellant feared Armijo––who pointed a gun at him––and he

eventually reported the incident because he was afraid Armijo would harm both appellant and his

family. Also, the threats were imminent because appellant’s family lived only two blocks away,

and Armijo knew where they lived. Appellant argues that to the extent his conduct was illegal, it

was justified because of the reasonable belief his conduct was immediately necessary to avoid

imminent harm.

       Even if Armijo ordered appellant to leave to get the cleaning supplies and to pick up

Villanueva, the evidence heard by the jury shows appellant left the offense location––alone––twice

while Armijo beat and tortured Gutierrez, and appellant returned each time. The jury could have

concluded that, rather than seeking help and/or not returning to the crime scene, appellant

purchased the cleaning supplies and brought them back to Armijo, leaving yet again to get

Villanueva. And, as we noted before, the threats of violence against appellant were based on his

account of the incident, which the jury was free to reject. The jury could have reasonably

concluded appellant was not faced with imminent, impending harm to either himself or his mother.

See, e.g., Stefanoff, 78 S.W.3d at 501 (“‘Imminent’ means something that is immediate, something

that is going to happen now.”). We conclude the evidence is legally sufficient to support the jury’s

rejection of appellant’s necessity defense, and we overrule appellant’s third issue.

                                            III. PTSD

       In his sixth, seventh, and eighth issues, appellant contends the trial court erred in excluding

                                               –24–
from the guilt–innocence phase of the trial testimony from Dr. Lisa Clayton, Dr. Michael Pittman,

and Detective Michael Yeric showing appellant suffered from PTSD.

        Appellant proffered the testimony of Dr. Pittman, Dr. Clayton, and Detective Yeric out of

the presence of the jury during the guilt–innocence phase. The proffered testimony of Dr. Pittman,

a medical doctor specializing in forensic psychiatry, showed that he examined appellant to

determine his competency to stand trial. He found appellant competent but concluded appellant

suffered from “a potentially severe mental illness,” which was “most probably post-traumatic

stress disorder.” Dr. Pittman testified that appellant discussed in detail a prior incident that

“sounded like a home invasion,” and that appellant’s father was shot during this incident, dying

while appellant held him. Appellant had problems after that “with anxiety, depression, nightmares,

that sort of thing.” Pittman also found appellant’s intelligence to be between borderline intellectual

functioning and low average and that he “wasn’t that bright,” but he was not “mentally retarded at

all.”

        Dr. Clayton, also a forensic psychiatrist, testified that she reviewed appellant’s school

records and background materials from the case (e.g., offense reports and witness statements)

before she evaluated him, concluding he suffered from PTSD. Regarding the charged offense, she

proffered that appellant’s PTSD “affected his––his perception of the––the dangerousness that Mr.

Armijo threatened to him, and then also to his family, specifically his mother.” She said appellant

had “almost a learned helplessness” and “felt kind of terrorized and in shock” when he thought

that Armijo “was threatening his life.” Dr. Clayton testified that she used criteria from the fifth

edition of the Diagnostic and Statistical Manual of Mental Disorders in reaching her conclusion,

and that the traumatic event in appellant’s life was the home invasion where he was beaten; his

mother assaulted; his niece assaulted; and his father murdered. Asked how PTSD might have

affected appellant’s behavior more than someone who did not have it, Dr. Clayton testified that

                                                –25–
because of his PTSD, appellant was “more physically afraid” and “essentially kind of froze” when

he was with Armijo and Gutierrez, experiencing a “sense of helplessness” and seeing Armijo as

“being extremely powerful.” He feared Armijo was going to kill him and then kill his mother,

who lived in the same neighborhood.

       Appellant also made a bill of exception proffering the testimony of Detective Yeric

regarding the details of the 2012 home invasion. Yeric, the lead detective in the case, testified that

appellant’s father, Lorenzo Moreno, was murdered during a home invasion of the family’s home

on North Ezekial Avenue that occurred on Sunday, May 6, 2012. The detective explained that in

addition to appellant and his father, appellant’s mother, Adela Moreno, and his niece were present.

They were all beaten by the masked intruders. Appellant’s mother and niece were beaten in front

of appellant and appellant’s mother was thrown up against a wall––hitting it with sufficient force

to leave a hole in the wall, according to Yeric’s testimony. Appellant also was severely beaten,

suffering two black eyes and a gash on his head that required eight staples. Yeric testified that

Lorenzo Moreno was killed in front of appellant. A total of five people were arrested following

this incident, and two of them were ultimately prosecuted for murder. The person identified as the

shooter was convicted and sentenced to fifty-five years in prison; the other individual pleaded

guilty and received a thirty-year sentence. Detective Yeric and Dr. Clayton both testified during

the punishment phase.

       The State objected to the PTSD-related testimony based on hearsay, relevance, and rule

403. The trial court ultimately concluded that evidence appellant had PTSD was not admissible

during the guilt–innocence phase of the trial. The trial court excluded Dr. Pittman’s testimony

from both phases of the trial; excluded Dr. Clayton’s testimony during guilt–innocence because it

was “not relevant in this part of the trial”; and excluded Detective Yeric’s testimony during guilt–

innocence.

                                                –26–
       A defendant has a fundamental right to present evidence of a defense as long as the

evidence is relevant and not excluded by an established evidentiary rule. Miller v. State, 36 S.W.3d

503, 506 (Tex. Crim. App. 2001); Hernandez v. State, 191 S.W.3d 370, 372 (Tex. App.––Waco

2006, no pet.) (citing Miller). Evidence is considered relevant if it is material and probative.

Miller, 36 S.W.3d at 507. To be material, the evidence must be shown to be addressed to the proof

of a material proposition, i.e., any fact that is of consequence to the determination of the action.

Id. (quoting 1 STEVEN GOODE ET AL., TEXAS PRACTICE: GUIDE TO THE TEXAS RULES OF EVIDENCE

§ 401.1). Evidence is considered probative if it tends to make the existence of the fact more or

less probable than it would be without the evidence. Id. Proffered evidence is relevant if it has

been shown to be material to a fact in issue and if it makes that fact more probable than it would

be without the evidence. Id. Rule 403 allows for the exclusion of otherwise relevant evidence

when its probative value is substantially outweighed by the danger of unfair prejudice. See TEX.

R. EVID. 403; Hernandez v. State, 390 S.W.3d 310, 323 (Tex. Crim. App. 2012). We review the

trial court’s decision excluding evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d

727, 736 (Tex. Crim. App. 2010); Miller, 36 S.W.3d at 507.

       Appellant argues that “Dr. Clayton’s testimony, in particular, along with Dr. Pittman’s and

Detective Yeric’s testimony would have demonstrated that [a]ppellant was more susceptible to

duress than an ordinary person.” Appellant further argues that the force or threat of force in this

case would have rendered a person of “reasonable firmness” incapable of resisting pressure. The

State responds that appellant is acknowledging that the expert testimony would have focused on

his subjective beliefs. Additionally, according to the State, the requirements for establishing

duress do not account for appellant’s “subjective susceptibility.” A defendant must prove “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) (emphasis added); see Edwards, 106 S.W.3d at 843.

                                               –27–
The inquiry, in other words, is objective, not subjective. Yet, the only court of criminal appeals

authority cited by appellant or the State in support of their arguments––or that we have found––is

Cobb v. State, No. AP–74,875, 2007 WL 274206 (Tex. Crim. App. Jan. 31, 2007) (not designated

for publication), an unpublished opinion. See TEX. R. APP. P. 77.3. Our research has similarly

failed to identify a published case from a Texas appellate court resolving this question.

        In Cobb, the appellant argued the trial court erroneously excluded testimony from two

defense expert witnesses because their testimony was relevant to his duress defense. See Cobb,

2007 WL 274206, at *2. The disputed expert testimony, however, did not concern PTSD, but

rather testimony that the defendant suffered from cognitive weaknesses consistent with fetal

alcohol syndrome, making him more suggestible to outside forces and compulsion and less able to

consider other options than an average person. See id. at *3. The court concluded that the trial

court did not abuse its discretion in excluding this testimony because the inquiry on duress is an

objective inquiry based on a “person of reasonable firmness,” and not a subjective one. See id.

        In reaching its conclusion that the trial court did not abuse its discretion, Cobb cited a Fifth

Circuit decision concerning the inadmissibility of expert testimony that the defendant suffered

from battered women’s syndrome. See United States v. Willis, 38 F.3d 170 (5th Cir. 1994). As a

state court we are, of course, not bound to follow precedent from the Fifth Circuit even on matters

of federal law. See, e.g., Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993)

(per curiam). We may look to Fifth Circuit opinions as persuasive authority. See Miller, 36

S.W.3d at 507. But a closer examination of Willis shows it is readily distinguishable from this

case.

        In Willis, a defendant was charged and convicted of carrying a firearm during and in

relation to a drug trafficking crime. Willis, 38 F.3d at 173. The defendant raised the defense of

duress and sought to introduce expert testimony she suffered from battered women’s syndrome,

                                                 –28–
which in turn forced her to commit the alleged crimes under duress. Id. at 173–74. As the Fifth

Circuit noted in its opinion:

       The district court permitted Willis substantial latitude in introducing evidence to
       support her theory that she was actually in fear for her life when she committed the
       acts in question. Six witnesses, including two Dallas police officers, were called to
       testify about [David] Perez’s violent nature and Willis’ fear of him. In addition,
       Willis called Dr. James Harrison, a clinical psychologist, to testify as to his
       conclusions and evaluations regarding Willis. Harrison testified that Willis had
       been the victim of a pattern of abuse that had its origin in a dysfunctional family
       wherein both of Willis’ parents were alcoholics. This led to abuse by both Willis’
       mother and a series of stepfathers. This pattern of abuse continued through two
       marriages to abusive men and escalated during the violent relationship with David
       Perez.

       In addition to testifying about specific acts of violence against Willis, Harrison
       testified about her mental state. He stated that Willis was in a great deal of
       emotional turmoil and showed signs of anxiety and depression. Moreover, she was
       constantly experiencing tension due to a strong desire to be loved and a very intense
       fear that she might be harmed or humiliated in a relationship. Accordingly, Dr.
       Harrison testified that Willis’ relationships fell into a very clear sort of classical
       pattern of a battered woman syndrome and an abusive relationship.

       The prosecution objected to this testimony, however. The district court sustained
       this objection and instructed counsel that it would not hear any more testimony
       about the battered woman’s syndrome. Even so, Dr. Harrison did go on to testify
       that Willis was terribly afraid of Perez and would basically do anything that he
       wanted so as to keep any further violence away.

Id. at 174. It was in this context that the Fifth Circuit held that “while evidence that a defendant

is suffering from the battered woman’s syndrome provokes our sympathy, it is not relevant, for

purposes of determining criminal responsibility, to whether the defendant acted under duress.” Id.

at 177. The Willis court reasoned that duress had always been a defense based on the hypothetical

objectively reasonable person, and permitting evidence of battered women’s syndrome would

impermissibly render that test subjective. Id. at 175. Such a defense, the court concluded,

necessarily related to why this particular “unusually susceptible” defendant succumbed rather than




                                               –29–
why the hypothetical objectively reasonable person would. Id. at 175–76.6

          It is also worth noting that, more recently, most federal and state courts have reached a

different conclusion on the admissibility of battered woman’s syndrome evidence, finding such

evidence relevant and admissible. See United States v. Lopez, 913 F.3d 807, 821 (9th Cir. 2019);

United States v. Nwoye, 824 F.3d 1129, 1137–38 (D.C. Cir. 2016); Dando v. Yukins, 461 F.3d 791,

801 (6th Cir. 2006); United States v. Ceballos, 593 F. Supp. 2d 1054, 1060–63 (S.D. Iowa 2009);

United States v. Marenghi, 893 F. Supp. 85, 91–97 (D. Me. 1995); Commonwealth v. Asenjo, 477

Mass. 599, 82 N.E.3d 966, 973–74 (2017); Wonnum v. State, 942 A.2d 569, 572–73 (Del. 2007);

State v. Williams, 132 Wash.2d 248, 937 P.2d 1052, 1058 (1997) (en banc); United States v.

Ramirez, 87 Fed. R. Evid. Serv. 1154, 2012 WL 733973, at *3 (D.P.R. 2012). But see Willis, 38

F.3d at 177; State v. B.H., 183 N.J. 171, 870 A.2d 273, 285 (2005). As the D.C. Circuit stated in

Nwoye, “Reasonableness is the touchstone of a duress defense.” Nwoye, 824 F.3d at 1136.

However, reasonableness “is not assessed in the abstract.” Id. at 1137. “Rather, any assessment

of the reasonableness of a defendant’s actions must take into account the defendant’s ‘particular

circumstances,’ at least to a certain extent.” Id.; see also State v. Richter, 245 Ariz 1, 424 P.3d

402, 408 (2018) (citing Nwoye, 824 F.3d at 1137).

          In the present case, unlike in Willis, the trial court permitted the defense no comparable

latitude in presenting evidence in support of its duress defense. Neither Dr. Pitman nor Dr. Clayton

was permitted to testify to any of their conclusions or evaluations regarding appellant, nor was

Detective Yeric allowed to testify to any of the facts underlying the home invasion. The jury, in


     6
       Another case that is cited in Cobb is Wood v. State, 18 S.W.3d 642, 650 (Tex. Crim. App. 2000), where the court of criminal
appeals rejected the appellant’s equal protection claim that the reasonable firmness standard of section 8.05 was unconstitutional
as applied to him because appellant was not, and never would be, a person of reasonable firmness. Distinguishing Willis, which
the appellant had cited, the court stated that “[w]hile Willis recognized that section 8.05 establishes an objective test, the defendant
there did not raise an equal protection claim, nor did the Court address any equal protection concerns.” Wood, 18 S.W.3d at 651
n.8. Cobb also cited Kessler v. State, 850 S.W.2d 217, 221–22 (Tex. App.––Fort Worth 1993, no pet.), where the court of appeals
noted that duress requires a present threat of harm, not a past or a future threat––a proposition of law that neither party in this case
appears to dispute. Furthermore, no equal protection argument has been made in this case. Thus, Wood and Kessler, too, are
distinguishable from the instant case.

                                                                –30–
other words, did not hear testimony identifying aspects of appellant’s particular circumstances that

could have aided them in assessing the reasonableness of his actions. See Nwoye, 824 F.3d at

1137. And knowledge of the circumstances under which an alleged crime was committed is

essential to a jury’s determination of whether a defendant’s actions were reasonable. See Richter,

424 P.3d at 408.

          Based on the record before us, we believe Detective Yeric’s testimony regarding the violent

home invasion and the expert testimony of Dr. Pittman and Dr. Clayton regarding their diagnosis

that appellant suffered from PTSD could indeed have identified relevant and probative aspects of

appellant’s particular circumstances. On balance, therefore, we are not persuaded appellant’s

proffered testimony would, as the State fears, alter the duress defense’s reasonable person

standard. The question is still whether or not “a person of reasonable firmness” would have been

incapable of resisting the pressure to engage in the proscribed conduct. See TEX. PENAL CODE

ANN. § 8.05(c). Thus, we conclude the proffered evidence was relevant and probative and that the

trial court abused its discretion in categorically excluding the testimony of Dr. Pittman, Dr.

Clayton, and Detective Yeric from the guilt–innocence part of the trial. For these same reasons,

we reject the State’s argument that the trial court could have concluded the proffered testimony

was overly confusing or misleading to the jury. See TEX. R. EVID. 403.7

          Having concluded the trial court erred, we now turn to the question of harm. In general,


      7
        This is not to suggest, of course, that all proffered testimony from Dr. Pittman or Dr. Clayton should have been heard by the
jury. Their testimony, like Detective Yeric’s, should not serve as a mere conduit for otherwise inadmissible evidence. See, e.g.,
TEX. R. EVID. 703 (allowing expert witness to base opinion on facts and data not otherwise admissible if such information is
reasonably relied on by experts in that field in forming opinions or inferences); TEX. R. EVID. 705 (inadmissible facts or information
relied on by expert excluded unless value of that evidence to explain or support expert’s opinion outweighs danger the evidence
would be used for other purposes); Martinez v. State, 22 S.W.3d 504, 508 (Tex. Crim. App. 2000) (“Since the trial court implicitly
found [a witness] qualified as an expert, the State had no burden to invoke an exception to the hearsay rule.”). But see TEX. CODE
CRIM. PROC. ANN. art. 46B.007 (“A statement made by a defendant during a[ ] [competency] examination [or] the testimony of an
expert based on that statement . . . may not be admitted in evidence against the defendant in any criminal proceeding, other than at:
(1) a trial on the defendant’s incompetency; or (2) any proceeding at which the defendant first introduces into evidence a statement
[or] testimony . . . described by this article.”). We leave it to the trial court’s discretion on remand to determine, consistent with
this opinion, the extent to which Dr. Pittman or Dr. Clayton can offer admissible evidence beyond their diagnosis that appellant
suffered from PTSD.


                                                               –31–
we evaluate harm in the erroneous admission or exclusion of evidence for non-constitutional error

under rule 44.2(b) of the Texas Rules of Appellate Procedure. Ray v. State, 178 S.W.3d 833, 836

(Tex. Crim. App. 2005); see also TEX. R. APP. P. 44.2(b).8 For non-constitutional error in criminal

cases, the error must be disregarded unless it affected the defendant’s substantial rights. See TEX.

R. APP. P. 44.2(b). A substantial right is not affected “when, after examining the record as a whole,

the reviewing court has a fair assurance that the error did not influence the jury or had but a slight

effect.” McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005).

          In assessing the likelihood that the jury’s decision was adversely affected by the
          error, the appellate court should consider everything in the record, including any
          testimony or physical evidence admitted for the jury’s consideration, the nature of
          the evidence supporting the verdict, the character of the alleged error and how it
          might be considered in connection with other evidence in the case.

Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). “The reviewing court may also

consider the jury instructions, the State’s theory and any defensive theories, closing arguments and

even voir dire, if applicable.” Id. at 355–56. Additionally, reviewing courts may examine whether

the State emphasized the errors. Id. at 356.

          The disputed testimony went to the heart of appellant’s case, and its categorical exclusion

had the practical effect of eviscerating his defense. While we acknowledge there is other evidence

in this record from which the jury could have concluded appellant’s defense of duress was not

credible, we simply cannot say with any degree of assurance, given the record in this case, that the

proffered testimony would have had no effect, or only a slight effect, on the jury’s consideration

of appellant’s duress defense. See TEX. R. APP. P. 44.2(b). As the Austin Court of Appeals held

under similar circumstances:

          We agree with the State that there is other evidence tending to rebut appellant’s

      8
        Neither party addressed the issue of what sort of harm analysis we should follow––i.e., whether we should apply rule 44.2(a),
the test for constitutional errors, or rule 44.2(b), which applies to all other errors. But we agree with the Austin Court of Appeals,
which addressed this issue on remand from the court of criminal appeals after that court remanded the case for a rule 44.2 harm
analysis in Miller v. State, 36 S.W.3d at 509, that the proper standard in this instance is rule 44.2(b). See Miller v. State, 42 S.W.3d
343, 345 (Tex. App.––Austin 2001, no pet.).

                                                                –32–
       claim of duress. But while we do not necessarily believe the jury would have
       acquitted appellant but for the court’s error, we cannot state with fair assurance that
       the excluded testimony would have had no effect, or but slight effect, on the jury’s
       consideration of appellant’s affirmative defense. See Johnson v. State, 967 S.W.2d
       410, 417 (Tex. Crim. App. 1998) (conviction should not be overturned for
       nonconstitutional error if appellate court, after examining whole record, has fair
       assurance that error did not influence jury, or had but slight effect). We intimate
       no opinion as to the credibility of appellant’s duress defense. We decide only that,
       on this record, appellant was harmed when the jury was not given the opportunity
       to hear testimony relevant to appellant’s defense and assess its credibility along
       with the other evidence in the case

Miller, 42 S.W.3d at 347 (on remand from court of criminal appeals, holding that the defendant

was harmed when the jury was not given an opportunity to hear testimony relevant to the

defendant’s duress defense that she was assaulted shortly after she sold cocaine).

       We reach the same conclusion in this case. We express no opinion on whether appellant’s

defense of duress is ultimately credible in light of the proffered testimony. We hold only that,

based on the record before us, the trial court erred in categorically excluding this evidence during

the guilt–innocence phase of the trial and that appellant was harmed. We therefore sustain

appellant’s sixth, seventh, and eighth issues.

                                     IV. Motion to Suppress

       Because the issue is likely to arise again on remand and has been briefed by the parties, we

also address appellant’s ninth issue, in which he argues the trial court erred in denying appellant’s

pretrial motion to suppress the July 6, 2016 interview with the police.

       We review a trial court’s denial of a motion to suppress for an abuse of discretion, applying

a bifurcated standard of review. Alford v. State, 358 S.W.3d 647, 652 (Tex. Crim. App. 2012).

We defer to the trial court’s determination of historical facts that are based on assessments of

credibility and demeanor. Id. We review de novo questions that do not turn on credibility and

demeanor, including whether the historical facts constitute custodial interrogation. Id.

       Statements made by a defendant during a custodial interrogation are inadmissible if, before


                                                 –33–
making the statements, the defendant did not receive warnings set out in Miranda v. Arizona, 384

U.S. 436, 479 (1966), and the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.

ANN. art. 38.22, § 3(a)(2); Herrera v. State, 241 S.W.3d 520, 525–26 (Tex. Crim. App. 2007).

The defendant bears the initial burden to prove a statement was the product of a custodial

interrogation. Herrera, 241 S.W.3d at 526.

       The meaning of “custody” is the same for purposes of Miranda and article 38.22. Id.

Generally, four situations may constitute custody: (1) the defendant is physically deprived of his

freedom of action in any significant way; (2) a law enforcement officer tells the defendant he is

not free to leave; (3) law enforcement officers create a situation that would lead a reasonable person

to believe his freedom of movement has been significantly restricted; or (4) there is probable cause

to arrest the defendant, and law enforcement officers do not tell him he may leave. Gardner v.

State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009); Dowthitt v. State, 931 S.W.2d 244, 255 (Tex.

Crim. App. 1996). Under the first three situations, the restriction on the defendant’s freedom of

movement must reach “the degree associated with an arrest” instead of an investigative detention.

Dowthitt, 931 S.W.2d at 255. Under the fourth situation, an officer’s knowledge of probable cause

must be manifested to the defendant and the record also must demonstrate “‘other circumstances’

of the interview, such as duration or factors of ‘the exercise of police control over [the defendant],’

would lead a reasonable person to believe that he is under restraint to the degree associated with

an arrest.” Saenz v. State, 411 S.W.3d 488, 496 (Tex. Crim. App. 2013) (quoting Dowthitt, 931

S.W.2d at 255).

       An officer’s knowledge of probable cause must be manifested to the suspect, and that

manifestation could occur “if information substantiating probable cause is related by the officers

to the suspect or by the suspect to the officers.” Dowthitt, 931 S.W.2d at 255; Garcia v. State, 237

S.W.3d 833, 837 (Tex. App.—Amarillo 2007, no pet). “However, the manifestation of probable

                                                –34–
cause does not automatically establish custody.” Garcia, 237 S.W.3d at 837; see also Saenz, 411

S.W.3d at 496. “‘Even a clear statement from an officer that the person under interrogation is a

prime suspect is not, in itself, dispositive of the custody issue.’” Saenz, 411 S.W.3d at 497 (quoting

Stansbury v. California, 511 U.S. 318, 325 (1994)). “[T]he question turns on whether, under the

facts and circumstances of the case, ‘a reasonable person would have felt that he or she was not at

liberty to terminate the interrogation and leave.’” Ervin v. State, 333 S.W.3d 187, 205 (Tex. App.

––Houston [1st Dist.] 2010, pet. ref’d) (quoting Nguyen v. State, 292 S.W.3d 671, 678 (Tex. Crim.

App. 2009)). The reasonable person standard presupposes an innocent person. Dowthitt, 931

S.W.2d at 254. The subjective intent of law enforcement officials to arrest is irrelevant unless that

intent is somehow communicated or otherwise manifested to the suspect. Ervin, 333 S.W.3d at

205; Dowthitt, 931 S.W.2d at 254.

       On February 19, 2018, the trial court conducted a motion to suppress hearing to determine

the admissibility of appellant’s statements, and only Detective Cayce Shelton testified. Detective

Shelton testified that Detective Trujillano initially interviewed appellant on July 1, 2016. As the

investigation continued and he gathered more information, Detective Shelton interviewed

appellant again on July 6, 2016. Shelton and Detective Trujillano went to appellant’s house for

the second interview, which was conducted by Shelton. During the approximately twenty-eight

minute interview, appellant appeared cooperative and willing to talk, and he willingly answered

the detective’s questions. Detective Shelton did not arrest appellant at the conclusion of the

interview; he gave appellant his business card, told appellant he might call him the next day to

update him on the investigation, and left. Shelton acknowledged that, at the time of the second

interview, he had viewed Armijo’s cell phone videos, including the video showing appellant in the

background with the bleach and towels. He also had Villanueva’s statement about appellant’s

bringing her to the offense location. When defense counsel asked, “You knew you were going to

                                                –35–
arrest [appellant] for something?” Shelton replied, “I believed he took part in some aspect of the

crime.” And when defense counsel asked Shelton if he knew whether he was going to arrest

appellant for some offense at the time of the July 6th interview, Shelton answered, “Yes, I did.”

Shelton also testified, however, that he “was investigating the totality of the incident,” that he

“can’t say I knew I was going to arrest [appellant] for anything,” and that he “had not decided at

that time to charge [appellant] with any criminal offense.”

       Appellant argues that, combined with incriminating statements he made during the

interview, Shelton’s “foreknowledge” that he planned to arrest appellant elevated any investigative

detention into an arrest, thereby requiring the administration of appellant’s rights under Miranda

and article 38.22. But giving due deference to the court’s resolution of issues regarding credibility

and demeanor, it was free to accept Shelton’s testimony that he had not decided to charge appellant

with any criminal offense. And even if we accept appellant’s interpretation of the record, Shelton

never manifested probable cause to arrest appellant during the July 6th interview. He emphasized

that Armijo was in jail; that appellant was in the video Armijo had recorded on his cell phone; that

the detective was trying to determine how honest appellant could be; and that it would do appellant

no good to lie. Additionally, appellant was interviewed in his own home; he was not handcuffed

at any time; the length of the interview was not unreasonable; the overall tone of the interview was

conversational and non-confrontational; and there is no indication appellant’s freedom of

movement was restricted in any way or that he was not free to terminate the interview at any time.

       Under these circumstances, we conclude a reasonable person would not have believed he

was under restraint to the degree associated with an arrest. See Saenz, 411 S.W.3d at 496. Based

on the record before us, the trial court did not abuse its discretion in denying appellant’s pretrial

motion to suppress.

       Our disposition of appellant’s sixth, seventh, and eighth issues renders it unnecessary for

                                               –36–
us to address the other issues raised by appellant or the State’s cross-point seeking modification of

the judgment.    We reverse the judgment of conviction and remand this cause for further

proceedings.


                                                   /Lana Myers/
                                                   LANA MYERS
                                                   JUSTICE


Publish
Tex. R. App. P. 47.2(b)
180271F.P05




                                               –37–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 RICKY MORENO, Appellant                            On Appeal from the 283rd Judicial District
                                                    Court, Dallas County, Texas
 No. 05-18-00271-CR         V.                      Trial Court Cause No. F17-00878-T.
                                                    Opinion delivered by Justice Myers. Chief
 THE STATE OF TEXAS, Appellee                       Justice Burns and Justice Molberg
                                                    participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED

and the cause REMANDED for further proceedings consistent with this opinion.

Judgment entered this 29th day of August, 2019.




                                             –38–
