                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


                                                 §
                                                                 No. 08-07-00100-CV
                                                 §
                                                                    Appeal from the
                                                 §
 IN THE MATTER OF R.D., A                                     289th Judicial District Court
 JUVENILE                                        §
                                                                of Bexar County, Texas
                                                 §
                                                                (TC# 2006-JUV-30111)
                                                 §


                                           OPINION

       This is an appeal from a conviction for delinquent conduct of aggravated robbery.

Appellant challenges the legal and factual sufficiency of the evidence supporting the conviction

arguing: the evidence is legally and factually insufficient to support the jury’s finding that he

used or exhibited a deadly weapon, and the evidence is factually insufficient to support the jury’s

rejection of his affirmative defense of duress. This Court previously determined that the

evidence is legally and factually sufficient to support the finding that Appellant used or exhibited

a deadly weapon. In re R.D., 304 S.W.3d 424, 428 (Tex.App.--El Paso 2009, pet. granted).

With respect to the affirmative defense issue, this Court concluded Appellant failed to preserve it

for our review. Id. at 429. The Texas Supreme Court reversed, holding Appellant adequately

preserved his challenge to the jury’s rejection of his affirmative defense. In re R.D., 304 S.W.3d

368, 370 (Tex. 2010).
                                         BACKGROUND1

       Appellant R.D. was convicted of delinquent conduct of aggravated robbery and sentenced

to commitment to the Texas Youth Commission, with the possible transfer to the Institutional

Division of the Texas Department of Criminal Justice for fifteen years. Appellant thereafter filed

an appeal with this Court. In his first two issues, Appellant challenges the legal and factual

sufficiency of the evidence to support the jury’s verdict that he engaged in the delinquent

conduct, and in the last issue, Appellant challenges the factual sufficiency of the evidence to

support the jury’s rejection of his affirmative defense of duress. We previously held the evidence

is legally and factually sufficient to support the jury’s deadly-weapon finding, and thus overruled

Appellant’s first and second issues. In re R.D., 304 S.W.3d at 428. As for the third issue, we

applied the transferor’s court precedent and concluded Appellant failed to preserve this issue

because he did not specify this ground in his motion for new trial. Id. at 429.

       The Texas Supreme Court reversed, holding that Appellant’s motion for new trial was

sufficient to preserve on appeal the issue of whether the jury’s rejection of his affirmative

defense had no evidentiary support. In re R.D., 304 S.W.3d at 370. The Court reasoned that the

jury’s single finding that Appellant engaged in delinquent conduct by committing aggravated

robbery “subsumed its rejection of [Appellant’s] affirmative defense, which was not submitted as

a separate question but as an instruction to the delinquency question.” Id. Therefore,

Appellant’s motion for new trial, in which he generally challenged the legal and factual

sufficiency of the evidence to support the jury’s delinquency finding, did not constitute a waiver


       1
         This case’s detailed factual background is laid out in more detail in our previous
opinion, In re R.D., 304 S.W.3d 424, 428 (Tex.App.--El Paso 2009, pet. granted), rev’d, 304
S.W.3d 368, 370 (Tex. 2010).

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of his complaint regarding his affirmative defense of duress. In re R.D., 304 S.W.3d at 370. The

case is now before this Court on remand for consideration of Appellant’s remaining issue.

       The only issue remaining is Appellant’s assertion that the trial court erred in denying the

motion for new trial because the evidence is factually insufficient to support the jury’s rejection

of Appellant’s affirmative defense of duress. Although juvenile appeals are categorized as civil

cases, when reviewing challenges to the sufficiency of the evidence supporting a finding that a

juvenile engaged in delinquent conduct, appellate courts utilize the same standards applicable in

criminal appeals. See In re M.D.T., 153 S.W.3d 285, 287 (Tex.App.--El Paso 2004, no pet.).

However, since Appellant’s brief was filed, the Texas Court of Criminal Appeals has ruled that

the only standard applicable to determine whether the evidence is sufficient to support each

element of a criminal offense is the Jackson v. Virginia, legal sufficiency standard. See Brooks v.

State, 323 S.W.3d 893, 895 (Tex.Crim.App. 2010). Therefore, in the interests of justice, and in

light of the Brooks decision, we will construe Issue Three as a challenge to the legal sufficiency

of the evidence. See id. at 899.

       A legal sufficiency review requires the appellate court to determine whether,

“[c]onsidering all the evidence in the light most favorable to the verdict, was a jury rationally

justified in finding guilt beyond a reasonable doubt.” See Brooks, 323 S.W.3d at 899, citing

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). When

conducting such a review, this Court is required to defer to the jury’s role as the sole judge of

witness credibility, and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899.

       Appellant argues he established the affirmative defense of duress through his testimony at

trial that he only robbed the victim because Richard Casarez’s father, who allegedly was a


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member in the Mexican mafia, threatened to harm Appellant’s family if he failed to follow his

order to rob someone.

       The duress defense is applicable to a case in which the 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 .PEN .CODE ANN . § 8.05(a)(West 2003). “Imminent”

means something that is impending, not pending; something 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). Harm is imminent when there is an emergency situation and it is immediately necessary

to avoid that harm; when a split-second decision is required without time to consider the law. Id.

A person is compelled to action within the meaning of the duress defense only if confronted by

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

the pressure. TEX .PEN .CODE ANN . § 8.05(c).

       Viewing the evidence in the light most favorable to the verdict, Appellant testified at trial

that he felt threatened by Mr. Casarez’s father, but he did not feel threatened by Mr. Casarez

himself. However, the evidence shows that at the time of the offense, only Mr. Casarez was with

Appellant. Appellant testified specifically that Mr. Casarez’s father was not around when

Appellant put the gun to the victim’s body, and robbed her at gunpoint. Moreover, after his

arrest, Appellant did not inform the police officers that the reason he committed the offense was

because he feared Mr. Casarez’s father would harm his family. At trial, Appellant testified the

reason he continued not to inform the officers was due to his continued fear of the father. The

jury could have properly rejected Appellant’s testimony that he continued not to inform the

officers, due to a persistent fear of Mr. Casarez’s father, by finding it lacked credibility. See


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Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993). Viewing the evidence in the light

most favorable to the verdict, we conclude the evidence is legally sufficient to support the jury’s

rejection of Appellant’s duress defense. Accordingly, Issue Three is overruled.

       Having overruled Appellant’s issues raised for review, we affirm the trial court’s

judgment.


March 16, 2011
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.




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