Affirmed and Opinion filed May 17, 2012.




                                          In The

                      Fourteenth Court of Appeals

                                  NO. 14-11-00371-CR


                          JOSEPH RODRIGUEZ, Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 232nd District Court
                                Harris County, Texas
                           Trial Court Cause No. 1235083


                                    OPINION

       A jury convicted appellant Joseph Rodriguez of murder and assessed a punishment
of forty years’ imprisonment. Appellant appeals, arguing that the trial court erred by
(1) denying appellant’s requested instruction on the affirmative defense of duress during
the guilt-innocence phase of the trial; and (2) sustaining the State’s objections to certain
questions during cross-examination of one of the State’s witnesses in the punishment
phase of the trial. We affirm.
                                          BACKGROUND

       In 2009, Mario Alanis and his family controlled the drug trade in an area of
southwest Houston where appellant and his cousin Mario Gomez used to sell drugs.
Appellant and Gomez paid the Alanis family “rent” in the amount of $2,500 per week to
do so, until the Alanis family increased the “rent” to $4,000 per week. When the
increased “rent” prompted appellant and Gomez to move their operation elsewhere, the
Alanis family became upset.

       According to appellant and his family, Alanis attempted to kidnap appellant’s
sister over the dispute. Appellant’s father became angry when he learned about the
attempted kidnapping and promised to retaliate.

       Alanis and his associate were leaving an apartment complex in the neighborhood
on September 20, 2009, when a silver Impala drove by and one or more of its occupants
opened fire on Alanis. Alanis and his associate were shot multiple times. The gunfire
also injured several occupants of a vehicle caught between the Impala and Alanis.
Witnesses identified appellant and Gomez as two of the occupants of the Impala,
although no witnesses could affirmatively state whether either individual held or fired a
weapon.

       Alanis died from his injuries, but his associate survived. The medical examiner
could not determine what caliber of bullet caused any of Alanis’s wounds.

       Police recovered multiple .357 SIG cartridge casings and 7.62x39 millimeter1
cartridge casings from the crime scene. Police located the Impala and discovered a .40
caliber bullet lodged in the headliner above the rear passenger’s-side window that
appeared to have been fired from the driver’s-side backseat.

       Appellant gave police a video-recorded statement in which he initially admitted
being present in the driver’s-side backseat of the Impala next to his father, but denied

       1
         The 7.62x39 millimeter cartridge casings were of a type that could be fired from an AK-47 or a
SKS rifle.

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having a firearm or any knowledge that a shooting was about to take place. He told
police that after his father found out that the Alanis family attempted to kidnap
appellant’s sister over the “rent” dispute, their father “got all crazy,” called appellant a
“pussy,” and “forced” him to go with his father in the Impala. Appellant told police that
his father brought an AK-47 and a .40 caliber pistol into the Impala, and that appellant
was “positive” his father was the only person in the vehicle with any firearms. Appellant
claimed that he was not even looking in Alanis’s direction when his father began firing
the AK-47 out of the rear passenger’s-side window, and denied that appellant’s car door
ever opened or that gunfire came out of his side of the vehicle.

        When police revealed to appellant that they recovered two types of cartridge
casings from the crime scene, appellant admitted, “I had a gun,” and stated, “I lied to you,
and I’m sorry, sir.” He maintained that neither he nor Gomez, who had been sitting in the
front passenger seat, fired any weapons, but stated that his father grabbed and began
firing appellant’s .40 caliber pistol when the AK-47 jammed.

        When police showed appellant a surveillance video from a nearby laundry mat that
captured the shooting, appellant again changed his story and stated that Gomez had
brought a .357 caliber Glock pistol that he fired from the vehicle, and that appellant—not
his father—fired the .40 caliber pistol. When police told appellant it appeared that the
surveillance video showed an individual opening the driver’s-side backseat car door and
getting out of the vehicle to fire a weapon, appellant admitted he opened the door but
denied exiting the vehicle or firing a weapon in that manner.2 He stated that when his
father’s AK-47 jammed, he “shot inside the car” once in the same direction his father had
been shooting, and that the bullet went into the headliner of the Impala above the rear
passenger’s-side window. Appellant claimed that that he did not see Alanis or know
where appellant was supposed to be aiming.

        Appellant and Gomez both were indicted and tried together for murder. Over

        2
          The issue of whether the surveillance video showed someone exiting the vehicle to fire over the
trunk at Alanis, or whether it merely showed a door opening, was disputed at trial.

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appellant’s objection, the trial court admitted appellant’s video-recorded statement into
evidence. The jury was instructed that they could find appellant and Gomez guilty based
on a theory of party liability, and the jury convicted both appellant and Gomez of murder.

       During the punishment phase of the trial, the State introduced evidence that
appellant and Gomez had shot and killed two individuals two days prior to the murder of
Alanis. Police recovered multiple .40 caliber and .357 cartridge casings from that crime
scene. The State introduced additional video-recorded statements given to police by
appellant, in which he initially denied any knowledge or participation in the shooting but
suggested his father may have been involved. He later admitted his participation and
stated that he and Gomez believed one of the two individuals had been reaching for a
weapon when first Gomez, and then appellant opened fire on the individuals. During the
defense’s cross-examination of one of the officers who investigated the shooting, the trial
court sustained the State’s objections to testimony regarding certain self-defense related
issues. The trial court denied appellant and Gomez’s requested instruction on self-
defense, and the jury assessed a punishment of 40 years’ imprisonment for both appellant
and Gomez.

       Appellant argues on appeal that the trial court erred by (1) denying appellant’s
requested instruction on the affirmative defense of duress during the guilt-innocence
phase of the trial; and (2) sustaining the State’s objections to certain questions during
cross-examination of the State’s witness in the punishment phase of the trial.

                                        ANALYSIS

I.     Instruction on Duress

       Appellant urges in Issue 1: “The main theory of the appellant’s defense was that,
although he actively participated in the crime, he was compelled to do so by his father, a
dangerous member of the Texas Syndicate who was angered when Alanis drew innocent
members of the appellant’s family into the dispute over ‘rent.’” Appellant contends that
evidence showing appellant was afraid of his father and felt “forced to go” along with the


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murder of Alanis “raised the issue of the affirmative defense of duress,” and that the trial
court should have granted appellant’s request for a jury instruction regarding duress.

       “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 . . . serious bodily
injury to himself or another.” TEX. PEN. CODE ANN. § 8.05(a) (West 2011).

       The affirmative defense of duress is, on its face, a confession-and-avoidance or
“justification” type of defense. This is so because “this justification, by definition, does
not negate any element of the offense, including culpable intent; it only excuses what
would otherwise constitute criminal conduct.” See Shaw v. State, 243 S.W.3d 647, 659
(Tex. Crim. App. 2007) (defining Good Samaritan defense as confession-and-avoidance
or “justification” defense); see also Juarez v. State, 308 S.W.3d 398, 401–03 (Tex. Crim.
App. 2010) (defining defense of necessity as confession-and-avoidance or “justification”
defense).

       The confession-and-avoidance doctrine requires appellant to first admit that he
“engaged in the proscribed conduct” by admitting to all elements of the underlying
offense, then claim that his commission of the offense is justified because of other facts.
See Juarez, 308 S.W.3d at 401–03 (discussing confession-and-avoidance doctrine with
respect to affirmative defenses of necessity, self-defense, and Good-Samaritan defense).
This is a product of the nature of the defense. “One cannot establish that an act is
justified without first identifying, or admitting to the commission of, the predicate act.”
Maldonado v. State, 902 S.W.2d 708, 712 (Tex. App.—El Paso 1995, no pet.); see also
Allen v. State, 971 S.W.2d 715, 720 (Tex. App.—Houston [14th Dist.] 1998, no pet.)
(appellant was not entitled to instruction regarding defense of necessity because she
failed to admit to committing the offense); Maldonado, 902 S.W.2d at 712 (appellant was
not entitled to instruction regarding defense of necessity because he did not testify “or
otherwise admit his crimes”); Bernal v. State, 647 S.W.2d 699, 706 (Tex. App.—Dallas
1983, no pet.) (appellant was not entitled to instruction regarding defense of duress
because he denied having participated in underlying offense).

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       A defendant’s failure to testify, stipulate, or otherwise proffer defensive evidence
admitting that he “engaged in the proscribed conduct” prevents the defendant from
benefitting from the defense of duress. See Shaw, 243 S.W.3d at 659 (defendant is
entitled to jury instruction on such a defense only “when the defendant’s defensive
evidence essentially admits to every element of the offense, including the culpable mental
state, but interposes the justification to excuse the otherwise criminal conduct” (emphasis
omitted)); Hubbard v. State, 133 S.W.3d 797, 801–02 (Tex. App.—Texarkana 2004, pet.
ref’d) (defendant not entitled to defensive instruction on justification unless he or she
“sufficiently admits conduct underlying the offense and provides evidence justifying a
defensive instruction”); see also Juarez, 308 S.W.3d at 404–05 (confession-and-
avoidance admission requirement “trumps” the general rule that a trial court must instruct
the jury as to a defensive issue raised by the evidence without respect to “whether such
evidence was produced by the prosecution or the accused” (internal quotation omitted)).

       We disagree with appellant that he sufficiently admitted that he “engaged in the
proscribed conduct” because he admitted participation in the offense at one point in his
video-recorded statement, which was introduced into evidence by the State over
appellant’s objection and after the trial court had overruled appellant’s motion to
suppress.   “That the prosecutor tendered evidence of guilt does not permit one to
rationally deduce that the defendant admits to the veracity of the evidence tendered,”
much less the veracity of one of multiple conflicting accounts reflected in that evidence.
See Timms v. State, No. 07-09-0001-CR, 2010 WL 1630731, at *2 (Tex. App.—Amarillo
Apr. 22, 2010, pet. ref’d) (mem. op., not designated for publication).

       Because appellant failed to testify, stipulate, or otherwise proffer defensive
evidence admitting his commission of the underlying offense, we conclude that he was
not entitled to a jury instruction on the affirmative defense of duress. We overrule
appellant’s Issue 1.

II.    Self-Defense Evidence

       Appellant argues in Issue 2 that the trial court erred during the punishment phase

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of the trial by excluding evidence that would have shown appellant and Gomez acted in
self-defense when they shot two other individuals two days before the Alanis murder.
Appellant argues that the State’s objections—that the questions called for a legal
conclusion, inadmissible hearsay, and irrelevant testimony—were based on evidentiary
rules that “infring[e] upon a weighty interest of the accused,” and are “arbitrary” or
“disproportionate to the purposes they are designed to serve” because they deprived
appellant of a meaningful opportunity to present a complete defense in violation of his
federal constitutional rights. See Holmes v. South Carolina, 547 U.S. 319 (2006).3

        To preserve a complaint for appellate review, the record must show that the
complaint was presented to the trial court “with sufficient specificity to make the trial
court aware of the complaint, unless the specific grounds were apparent from the
context.” TEX. R. APP. P. 33.1(a)(1)(A). “Under this rule, an objection must be both
timely and specific, alerting the trial court to any and every legal basis upon which the
appellant should desire to predicate a claim later on appeal.” Leza v. State, 351 S.W.3d
344, 361 n.67 (Tex. Crim. App. 2011). To complain about the exclusion of certain
evidence on appeal, therefore, an appellant must demonstrate that he preserved his
argument by offering the evidence during trial, and by making the trial court aware of the


        3
         The trial court sustained the State’s objection that the following question calls for a legal
conclusion:
        Q. But you do agree that a person[,] based upon your training and experience in the cases that you
        have handled[,] does have the right to resort to self-defense, right?

The trial court sustained the State’s relevance-based objections to the following questions:
        Q. Have you worked cases before that involve evidence of self-defense?
                                 *                        *                        *
        Q. Have you ever talked to a prosecutor in a case that you have investigated that involved
        allegations of self-defense?
                                 *                        *                        *
        Q. Some people [involved in shootings] are not guilty [of murder?]

The trial court sustained the State’s hearsay-based objection to the following question:
        Q. Did you ever talk to any witnesses who contradicted their statements of self-defense?

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substance of the evidence and the basis of its admission. See TEX. R. APP. P. 33.1; TEX.
R. EVID. 103(a)(2); Leza, 351 S.W.3d at 360–61.

       At trial, appellant failed to alert the trial court in any way that the trial court’s
evidentiary rulings would violate any federal constitutional right. Because the only
argument that the appellant now pursues on appeal with respect to this evidence was not
preserved by a contemporaneous objection, and because appellant fails to argue that the
constitutional right upon which he relies is—or that we should hold it to be—immune to
ordinary principles of procedural default, we overrule appellant’s Issue 2 without
reaching the merits. See Leza, 351 S.W.3d at 360–61 (declining to reach appellant’s
argument that trial court “committed error of a federal constitutional dimension” under
Holmes regarding exclusion of out-of-court statement under Texas Rules of Evidence
because appellant failed to raise federal constitutional argument to trial court); see also
Piper v. State, No. 14-07-00409-CR, 2008 WL 2133416, at *2 (Tex. App.—Houston
[14th Dist.] May 20, 2008, pet. ref’d) (mem. op., not designated for publication) (same).

                                      CONCLUSION

       Having overruled both appellant’s issues on appeal, we affirm the judgment of the
trial court.




                                          /s/       Sharon McCally
                                                    Justice



Panel consists of Chief Justice Hedges and Justices Jamison and McCally.
Publish — TEX. R. APP. P. 47.2(b).




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