                                                                  ACCEPTED
                                                              01-14-01016-CR
                                                   FIRST COURT OF APPEALS
                                                           HOUSTON, TEXAS
                                                         7/22/2015 3:28:19 PM
                                                        CHRISTOPHER PRINE
                                                                       CLERK
    No. 01-14-01016-CR
            In the
     Court of Appeals
           For the                       FILED IN
                                  1st COURT OF APPEALS
  First District of Texas             HOUSTON, TEXAS
         At Houston               7/22/2015 3:28:19 PM
                       CHRISTOPHER A. PRINE
                                          Clerk
       No. 1399329
 In the 177th District Court
  Of Harris County, Texas
 
GERARDO TAPIA-LOPEZ
          Appellant
              V.
 THE STATE OF TEXAS
           Appellee
 

STATE’S APPELLATE BRIEF

 

                     DEVON ANDERSON
                     District Attorney
                     Harris County, Texas

                     KATIE DAVIS
                     Assistant District Attorney
                     Harris County, Texas
                     State Bar Number: 24070242
                     davis_katie@dao.hctx.net

                     JUSTIN KEITER
                     Assistant District Attorney
                     Harris County, Texas

                     1201 Franklin Street, Suite 600
                     Houston, Texas 77002
                     Telephone: (713) 755-5826
                     Fax Number: (713) 755-5809

ORAL ARGUMENT WAIVED
                 STATEMENT REGARDING ORAL ARGUMENT

       Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State waives

oral argument since the issues appear well-settled in Texas jurisprudence. But the

State will present argument if this Court deems it necessary.


                         IDENTIFICATION OF THE PARTIES

Counsel for the State:

       Devon AndersonDistrict Attorney of Harris County

       Katie DavisAssistant District Attorney on appeal

       Justin KeiterAssistant District Attorney at trial

Appellant or Criminal Defendant:

       Gerardo Tapia-Lopez

Counsel for Appellant:

       Alexander Bunin—Chief Public Defender of Harris County

       Bob Wicoff—Counsel on Appeal, Assistant Public Defender

       Mario Madrid—Counsel at trial


Trial Judge:

       Honorable Reagan ClarkVisiting Judge of 177th District Court




                                         i
                                              TABLE OF CONTENTS
                                                                                                                            Page
STATEMENT REGARDING ORAL ARGUMENT .......................................................... i

IDENTIFICATION OF THE PARTIES ................................................................................ i

TABLE OF CONTENTS........................................................................................................... ii

INDEX OF AUTHORITIES ................................................................................................... iii

STATEMENT OF THE CASE ................................................................................................. 1

STATEMENT OF FACTS ........................................................................................................ 1

SUMMARY OF THE ARGUMENT ..................................................................................... 4

REPLY TO APPELLANT’S SOLE POINT OF ERROR .................................................... 5
   I.       Standard of Review and Applicable Law .............................................................. 7

   II. The trial court did not err in failing to include “other unknown individuals”
       in the jury charge’s application of the affirmative defense of duress. ............... 8

   III. The appellant was not egregiously harmed by the failure to include “other
        unknown individuals” in the charge’s application paragraph regarding the
        defense of duress. ......................................................................................................... 12
CONCLUSION .........................................................................................................................16

CERTIFICATE OF SERVICE AND COMPLIANCE ...................................................... 17




                                                                  ii
                                           INDEX OF AUTHORITIES


CASES

Almanza v. State,
  686 S.W.2d 157 (Tex. Crim. App. 1984) ..................................................................... 7, 12
Anguish v. State,
  991 S.W.2d 883 (Tex. App.—
  Houston [1st Dist.] 1999, pet. ref’d) ........................................................................ 8, 9, 14
Arrington v. State,
  451 S.W.3d 834 (Tex. Crim. App. 2015)......................................................................... 12
Barrera v. State,
  982 S.W.2d 415 (Tex. Crim. App. 1998) .......................................................................... 9
Blount v. State,
  542 S.W.2d 164 (Tex. Crim. App. 1976)............................................................... 8, 10, 14
Cameron v. State,
  925 S.W.2d 246 (Tex. App.—
  El Paso 1995, no pet.) .......................................................................................................... 10
Devine v. State,
  786 S.W.2d 268 (Tex. Crim. App. 1989) ..................................................................... 8, 11
Druery v. State,
  225 S.W.3d 491 (Tex. Crim. App. 2007) .......................................................................... 7
Longoria v. State,
  14-11-01019-CR, 2013 WL 655710 (Tex. App.—
  Houston [14th Dist.] Feb. 21, 2013, pet. ref’d) ......................................................... 13, 15
Matthews v. State,
 582 S.W.2d 832 (Tex. Crim. App. 1979) ........................................................................ 12
Ngo v. State,
  175 S.W.3d 738 (Tex. Crim. App. 2005) ......................................................................... 12
Oursbourn v. State,
  259 S.W.3d 159 (Tex. Crim. App. 2008) .......................................................................... 7




                                                                 iii
Potier v. State,
  01-11-00861-CR, 2012 WL 5545352 (Tex. App.—
  Houston [1st Dist.] Nov. 15, 2012, no pet.) ......................................................... 10, 11, 14
Rolle v. State,
  367 S.W.3d 746 (Tex. App.—
  Houston [14th Dist.] 2012, pet. ref’d) ..............................................................................15
Sanders v. State,
  632 S.W.2d 346 (Tex. Crim. App. 1982) ......................................................................... 11
Vega v. State,
  394 S.W.3d 514 (Tex. Crim. App. 2013) ..................................................................... 9, 16


STATUTES

TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007) ....................................................... 7
TEX. PENAL CODE ANN. § 8.05(a) (West 2011) .................................................................... 7


RULES

TEX. R. APP. P. 39.1 ....................................................................................................................... i
TEX. R. APP. P. 9.4(g) .................................................................................................................. i




                                                                     iv
TO THE HONORABLE COURT OF APPEALS:


                          STATEMENT OF THE CASE

      The State charged the appellant with possessing methamphetamine with

the intent to deliver in an amount of at least 400 grams, and the jury found the

appellant guilty (CR – 7, 218; 4 RR 246). The jury assessed punishment at 23 years

confinement in the Institutional Division of the Texas Department of Criminal

Justice and a $1.00 fine (CR – 224-26; 5 RR 28-29). The trial court sentenced the

appellant in accordance with the jury’s verdict (CR – 224-26; 5 RR 28-30). The

appellant filed a timely notice of appeal, and the trial court certified that he had

the right to appeal (CR – 228-30).


                            STATEMENT OF FACTS

      On August 16, 2012, the Houston Police Department’s (HPD) Street Level

Narcotics Unit set up surveillance at the Ashford Apartments after receiving

information that someone was trafficking narcotics (3 RR 19). Officer Moises

Zamora led the surveillance team (3 RR 77). Zamora observed the appellant at the

apartment complex working as a carpet cleaner (3 RR 79). The appellant had

access to several apartment units in order to perform his job (3 RR 79-80). Zamora

noticed that the appellant would use a key only when he went in and out of

Apartment 1303 (3 RR 82-3). At one point during the day, the appellant entered
Apartment 1303 with two other males (3 RR 85). Based on his experience as a

narcotics investigator, Zamora believed that the appellant provided these males

samples of the drugs (3 RR 86).

      Later the appellant retrieved a white bucket from a van in the parking lot (3

RR 95). See (St. Ex. #46). The appellant took the bucket, which appeared empty at

this time, with him into Apartment 1303 (4 RR 7-8). He was in the apartment for

five to ten minutes and then returned to the van with the bucket, which now

appeared full (4 RR 8-10). The appellant placed the bucket in the back of the van

(4 RR 10). He drove the van and parked it towards the rear of the parking lot (4

RR 10-12). Zamora observed the appellant get out, meet with another unknown

male briefly, and then leave the parking lot in a blue Dodge Neon (4 RR 12). The

van remained under surveillance, and no one else approached or entered the van (4

RR 19). A K-9 unit reported to the scene and alerted on the van, indicating that

narcotics were inside (4 RR 13, 114).

      Officer Carl Sanders with HPD worked as a uniformed unit with Zamora on

August 16 (4 RR 68-70). Sanders observed the appellant driving, that he failed to

signal a right-hand turn, that he stopped past the stop point at a stop sign, and

that he changed lanes without signaling (4 RR 73). Sanders activated his

emergency lights and pulled the appellant over for the traffic violations (4 RR 73-

75). The appellant cooperated and allowed Sanders to search his vehicle (4 RR



                                        2
84). Sanders spoke with the appellant and asked him to return to the apartment

complex (4 RR 87).

      The appellant voluntarily drove back to the apartment complex (4 RR 87).

Sanders asked the appellant for consent to search the van, but the appellant told

him that the van was no longer there (4 RR 90). Sanders knew this was a lie and

observed the appellant’s cheek muscle begin to twitch (4 RR 90). The appellant’s

story kept changing about his van and its location (4 RR 91-2). The appellant

ultimately admitted that the van was in the parking lot and gave officers

permission to search it (4 RR 16). Zamora located the white bucket he had

observed the appellant carrying earlier; inside were multiple packages of crystal

methamphetamine (meth) (4 RR 20-24). In total the appellant possessed over four

kilograms of meth (4 RR 23-24).

      The officers contacted the apartment management, and the manager

explained that no one was supposed to be in Apartment 1303 (3 RR 35). She stated

that no one should have access, including the appellant (3 RR 36; 4 RR 30-31). The

manager gave the officers consent to search the apartment (3 RR 36). Inside, the

officers found no personal belongings or furniture (3 RR 38). In the kitchen

cabinet, they found more meth as well as meth oil (3 RR 38, 43; 4 RR 30-31). The

meth oil product is something that drug dealers smuggle into the country and then

cook into crystallized meth (4 RR 36). Zamora estimated that the officers



                                        3
recovered over half-a-million dollars’ worth of narcotics that would have made

40,000 servings (4 RR 41).

      Ahtavea Barker, a criminalist with the Houston Forensic Science Center

(HFSC), tested the narcotics found in both the apartment and the bucket and

confirmed that it was meth (4 RR 116). She calculated that the total amount of

meth weighed 4,295.3 grams (4 RR 125-26). Jisel Bailon, a DNA analyst with

HFSC, tested items that were found on top of the drugs in the white bucket (4 RR

136). See (St. Ex. #53-54). Bailon determined that the appellant could not be

excluded as a contributor to the DNA found on those items (4 RR 136).


                       SUMMARY OF THE ARGUMENT

      In his sole point of error, the appellant argues that the jury charge restricted

the jury’s consideration of the appellant’s defense of duress by limiting it to one

person, Miguel Zuniga. But the appellant failed to show that the threats from

“other unknown individuals” were imminent. Furthermore, the appellant failed to

show egregious harm.




                                          4
             REPLY TO APPELLANT’S SOLE POINT OF ERROR

      In the appellant’s sole point of error, he argues that the trial court erred in

its application of the law to the facts on his affirmative defense of duress. (App’nt

Brf. 5). Specifically, the appellant argues that the jury charge limited his

affirmative defense of duress to fear of imminent loss of life or serious bodily injury

only at the hands of Zuniga. (App’nt. Brf. 5).

      The application paragraph to the appellant’s affirmative defense of duress in

the jury charge, read:

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

             If, however, after viewing the facts from the defendant’s
      standpoint at the time, you do not find by a preponderance of the
      evidence that the defendant’s participation in the said offense, if any,
      was compelled by such threat of imminent death or serious bodily
      injury to himself or another at the hands of Miguel Zuniga as would
      render a person of reasonable firmness incapable of resisting the
      pressure thereof, then you will find against the defendant on his
      defense of duress (CR – 213-14).


                                          5
      The appellant contends that the evidence showed that the appellant was

not only in fear of Zuniga but of persons other than Zuniga. (App’nt Brf. 5-10). The

appellant testified that he received a call from Zuniga while he was working at the

apartments (4 RR 146). The appellant knew Zuniga from his home in Michoacan,

Mexico (4 RR 147). He explained that Zuniga was supposed to marry his sister,

but she called off the wedding (4 RR 147-49). The appellant claimed that Zuniga

was involved with the drug trade, and he considered Zuniga to be a dangerous

person (4 RR 149). He testified that drug cartels will kill you, cut off your head, or

hurt you if you do not do what they ask, that “[t]hey don’t think twice to do this.”

(4 RR 149, 158). The appellant explained that Zuniga threatened him (4 RR 150).

He stated that Zuniga called him and told him that another person would deliver

drugs to where he worked (4 RR 150-51). He testified that Zuniga said that if he

did not do this, Zuniga would kill him and his family (4 RR 153, 155).

      The appellant further testified that he was “really nervous” and felt that

“[t]hey could have done it at the same time at the moment.” (4 RR 156). Trial

counsel then asked the appellant, “So your feeling is if you don’t do this, they’re

going to kill my family. If I don’t do this today, they know where my wife lives, my

kids live, my parents live, they’re going to go over there and kill them?” and the

appellant answered “Yes.” (4 RR 156).




                                          6
      I.     Standard of Review and Applicable Law
      A trial judge has the absolute duty to prepare a jury charge that accurately

sets out the “law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14

(West 2007); Oursbourn v. State, 259 S.W.3d 159, 179-80 (Tex. Crim. App. 2008).

When a rule or statute requires an instruction under the particular circumstances,

that instruction is the law applicable to the case, and the trial court must instruct

the jury on “whatever the statute or rule requires.” Oursbourn, 259 S.W.3d at 180.

The trial court must give the instruction for the law applicable to the case

regardless of whether it has been specifically requested. Id. at 179-80. If the

defendant fails to request such an instruction, as in the present case, the appellate

court must review the effect of the omission under the egregious harm standard.

Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007) (citing Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1984)).

      Duress is an affirmative defense that applies when a defendant “engaged in

the proscribed conduct because he was compelled to do so by threat of imminent

death or serious bodily injury to himself or another.” TEX. PENAL CODE ANN. §

8.05(a) (West 2011). In order to establish duress, a defendant must prove by a

preponderance of the evidence that a threat of death or serious bodily injury was

imminent and would render a person of reasonable firmness incapable of resisting




                                         7
the pressure. Id.; Anguish v. State, 991 S.W.2d 883, 886–87 (Tex. App.—Houston [1st

Dist.] 1999, pet. ref’d).

       An “imminent threat is a present threat of harm.” Anguish, 991 S.W.2d at 886

(citing cases in which the Court of Criminal Appeals has construed the term

“imminent” in other contexts). This Court has determined that an imminent threat

has two components of immediacy. Id. “First, the person making the threat must

intend and be prepared to carry out the threat immediately” and “[s]econd,

carrying out the threat must be predicated upon the threatened person’s failure to

commit the charged offense immediately.” Id. (citing Devine v. State, 786 S.W.2d 268,

270–71 (Tex. Crim. App. 1989), and Blount v. State, 542 S.W.2d 164, 166 (Tex. Crim.

App. 1976)).

       II.     The trial court did not err in failing to include “other unknown
               individuals” in the jury charge’s application of the affirmative
               defense of duress.
       The appellant argues that he was in fear of imminent death or serious bodily

injury to himself or another by not only Zuniga but by “other unknown individuals

who were involved with Zuniga or involved in a drug cartel.” (App’nt Brf. 8). But

the evidence did not raise the defense of duress from “other unknown individuals.”

In fact, the record does not even support duress by Zuniga. None of the threats

that the appellant testified placed him in fear of his or his family’s life were

imminent. See (4 RR 153, 155-56).


                                         8
      Although duress by Zuniga is “the law applicable to the case” because the

trial court appears to have charged the jury on the defense sua sponte, it does not

automatically entitle the appellant to a charge on duress caused by anyone. See

Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App. 1998) (holding that a trial

court has no duty to sua sponte charge the jury on unrequested defensive issues

raised by the evidence, but if the trial court on its own does instruct the jury on an

issue then it signals that the defense was “the law applicable to the case.”). The

facts still must support the application of duress to these “other unknown

individuals.” In other words, the appellant was required to show an imminent

threat from these “other unknown individuals.” Anguish, 991 S.W.2d at 886.

      The appellant relies on Vega v. State, 394 S.W.3d 514, 519-20 (Tex. Crim. App.

2013). (App’nt Brf. 9). But Vega dealt with the affirmative defense of entrapment,

not duress. Id. at 520. In Vega, the trial court sua sponte provided an instruction on

entrapment in the jury charge and instructed the jury to acquit Vega if it found

that he was induced by Marshall Whitlock, a law enforcement officer. Id. at 518.

For the first time on appeal, Vega argued that the application should also have

included a second person named “Jerry.” Id. Vega argued and the court agreed that

the record showed “Jerry” was a confidential informant that had informed

Whitlock about the appellant and that it was at Jerry’s suggestion that the

appellant delivered the drugs to Whitlock. Id. at 520. Therefore, the court found

                                          9
that “Jerry” should have also been included in the charge’s application of

entrapment. Id.

      In the present case, the record does not show that the appellant was in

imminent danger by these “other unknown individuals.” The appellant never

articulated a particular threat that these individuals made. The appellant merely

testified that they threatened him without expanding more (4 RR 150, 155).

Additionally, the appellant did not testify that one of these “other unknown

individuals” was with him or his family members so that such an individual could

have carried out any supposed threat immediately. He testified that he merely felt

that if he did not handle the narcotics then “they” would kill him or his family (4

RR 155-56).

      A threat of death at some indefinite time in the future is insufficient to

satisfy the requirement of imminence. Blount, 542 S.W.2d at 166; Potier v. State, 01-

11-00861-CR, 2012 WL 5545352, at *5 (Tex. App.—Houston [1st Dist.] Nov. 15,

2012, no pet.) (mem. op., not designated for publication). There is no evidence that

these “other unknown individuals” made a specific, objective threat to the

appellant or another if the appellant did not participate in moving the narcotics.

See Cameron v. State, 925 S.W.2d 246, 250 (Tex. App.—El Paso 1995, no pet.)

(finding no objective basis for a claim of compulsion when evidence showed only

that defendant was afraid of co-conspirator’s temper and followed his orders).


                                         10
      Even if the appellant articulated what “they” said, between the alleged

threat and the time the appellant handled the narcotics, he had the opportunity to

contact the police or leave the apartment complex. See Potier, 2012 WL 5545352 at

*5 (finding that a threat from a co-defendant no longer present with the Potier

was not imminent because he had the opportunity to contact the police, let the

victims go, or simply leave the apartment between the time of the threat and the

time he killed the victims).

      Furthermore, not knowing who “they” are or where “they” are does not

indicate the “presence of a threat” required to prove imminence. See Devine, 786

S.W.2d at 270–71 (defining imminent as ready to take place, near at hand,

impending, hanging threateningly over one’s head, menacingly near, certain,

immediate, and threatening to occur immediately). While there may be situations

where a defendant does not know the person or persons’ names that intend to do

him harm, an identifiable person or persons is needed to meet the requirement of

imminence. For instance, in cases of self-defense from multiple assailants, courts

have allowed the term “others” when the evidence showed the defendant

perceived a threat from a defined group of people. See, e.g., Sanders v. State, 632

S.W.2d 346, 348 (Tex. Crim. App. 1982) (finding that the jury instruction on self-

defense should have included multiple assailants because the evidence showed a

particular group of people attacking the defendant) (citing Matthews v. State, 582


                                        11
S.W.2d 832, 834 (Tex. Crim. App. 1979)). Therefore, the trial court did not err in

excluding “other unknown individuals” from the charge’s application of duress

because the evidence failed to show that there were imminent threats from these

individuals.

      III.     The appellant was not egregiously harmed by the failure to
               include “other unknown individuals” in the charge’s application
               paragraph regarding the defense of duress.
      Even if not including “other unknown individuals” in the charge’s

application of duress was error, the appellant never requested that specific

instruction during the charge discussion (4 RR 219). Therefore, this Court must

review any effect of the omission under the egregious harm standard. Arrington v.

State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015) (citing Ngo v. State, 175 S.W.3d

738, 743–44 (Tex. Crim. App. 2005)). And errors which result in egregious harm

are those which deny an appellant a fair and impartial trial. Almanza, 686 S.W.2d at

171. Examining the alleged error in light of the entire jury charge, the state of the

evidence, the argument of counsel, and the record of the trial as a whole, the

appellant has not shown egregious harm. See id.

      The evidence strongly supported a guilty verdict. The appellant was

observed entering and exiting an apartment that contained meth as well as items

to make more meth (3 RR 79-86). Zamora observed that the appellant only locked

Apartment 1303, despite entering and exiting other apartments that day, in an



                                         12
apparent effort to keep the contents secure (3 RR 82-3). Zamora testified that no

one else entered or exited Apartment 1303 (3 RR 82-86). Additionally, the majority

of the drugs were found in the white bucket inside the appellant’s van (4 RR 20-

24). Zamora testified he observed the appellant take this empty bucket into

Apartment 1303 and return it to his van with something inside of the bucket (3 RR

95; 4 RR 7-8). And just as with Apartment 1303, no one else approached or entered

the van after the appellant moved it to the rear of the parking lot (4 RR 19).

      Additionally, the appellant’s DNA could not be excluded from contents

inside of the bucket, and the appellant admitted that he put the packages of meth

into the bucket (4 RR 154, 205). Furthermore, the appellant failed to tell Zamora

about Zuniga and “other unknown individuals” when given the opportunity (4 RR

201-8). Rather, the appellant told Zamora that his friend asked him to receive a

package and that someone would pick it up later; the appellant knew it would be

drugs and still accepted it (4 RR 202). Finally, the appellant admitted on cross-

examination that he was a liar (4 RR 198).

      Any error in an unjustified defensive instruction is not harmful. See Longoria

v. State, 14-11-01019-CR, 2013 WL 655710, at *7 (Tex. App.—Houston [14th Dist.]

Feb. 21, 2013, pet. ref’d) (mem. op., not designated for publication) (finding no

egregious harm in charge’s error in placing the burden of proof in a consent

instruction when the appellant was not entitled to the instruction in the first



                                         13
place). As previously stated, the appellant was not entitled to an instruction on

duress because he failed to show that the imminent threats. The evidence only

showed that the threats came directly from Zuniga, which were not sufficient to

justify a duress instruction.

      Zuniga’s threats were made over the phone from Mexico (4 RR 146-47). The

appellant testified that Zuniga told him if he did not accept the narcotics that he

would kill him and his family (4 RR 153-55). But, as previously stated, threats of

death at some indefinite time are insufficient to establish duress. Blount, 542

S.W.2d at 166; Potier, 2012 WL 5545352 at *5. Zuniga’s threat was made over the

phone; therefore any threat made by Zuniga could not have been immediately

carried out. See Potier, 2012 WL 5545352 at *5 (finding that a threat over the phone

from a co-defendant no longer present with the defendant was not imminent).

      No evidence was presented that Zuniga was with the appellant’s family or

near them when the threat was made. Furthermore, there is no evidence that

Zuniga gave the appellant a deadline by which to accept the narcotics and how

long to hold them (4 RR 150). See Anguish, 991 S.W.2d at 886–87 (concluding that a

threat was not imminent to establish duress because “there was no evidence that

the persons making the threat gave appellant a time by which he was to commit

the robbery, much less that he was to commit the robbery immediately”).




                                        14
      Moreover, as previously stated, the appellant did not establish an imminent

threat from “other unknown individuals.” There was no evidence about what the

“other unknown individuals” said that forced the appellant into committing the

charged offense (4 RR 155-58). Furthermore, the appellant established throughout

trial that Zuniga was a leader in the cartel, and therefore any harm caused by

others would have come at his direction.

      Because the appellant was not entitled to an instruction on duress, any error

in excluding “other unknown individuals” in the instruction’s application does not

establish egregious harm. Longoria, 2013 WL 655710 at *7. Thus, the appellant

failed to show that any possible error was egregious harm. See id.; see also Rolle v.

State, 367 S.W.3d 746, 757 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d)

(noting that egregious harm is “such harm that the defendant has not had a fair

and impartial trial”).

      Finally, looking at the record as a whole the appellant failed to show

egregious harm. The appellant does not complain about any other sections of the

jury charge (CR – 211-18). Moreover, neither the State nor the appellant suggested

that there was any distinction between Zuniga and the “other unknown

individuals.” The appellant argued that he was in fear of his life without referring

to a specific person in closing argument (4 RR 223-25, 230). And the State urged

the jury to reject the defense, not because others had made threats, but because the


                                         15
appellant had failed to show any imminent threat (4 RR 236-46). See Vega, 394

S.W.3d at 521-22 (finding no harm in the trial court’s failure to apply entrapment

to a second individual under the Almanza factors). Therefore, it is unlikely the jury

that rejected duress caused by Zuniga would have acquitted the appellant based

on duress caused by “other unknown individuals.” The exclusion of “other

unknown individuals” did not affect the very basis of the case, and the appellant’s

sole point of error should be overruled.


                                  CONCLUSION

      It is respectfully submitted that all things are regular and the conviction

should be affirmed.

                                                    DEVON ANDERSON
                                                    District Attorney
                                                    Harris County, Texas


                                                    /S/ Katie Davis
                                                    KATIE M. DAVIS
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                    1201 Franklin Street, Suite 600
                                                    Houston, Texas 77002
                                                    Telephone (713) 755-5826
                                                    Fax Number (713) 755-5809
                                                    Davis_Katie@dao.hctx.net
                                                    State Bar Number: 24070242




                                           16
               CERTIFICATE OF SERVICE AND COMPLIANCE
      This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 3,771 words in it; and (b) a
copy of the foregoing instrument will be served by efile.txcourts.gov to:



Bob Wicoff
Assistant Public Defender
Harris County, Texas
1201 Franklin, 13th Floor
Houston, TX 77002
Bob.Wicoff@pdo.hctx.net




                                                  /S/ _ Katie Davis
                                                  KATIE M. DAVIS
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin Street, Suite 600
                                                  Houston, Texas 77002
                                                  Telephone (713) 755-5826
                                                  Fax Number (713) 755-5809
                                                  Davis_Katie@dao.hctx.net
                                                  State Bar Number: 24070242

Date: July 22, 2015




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