                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00250-CR

RUTH BUSBY,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                              From the County Court
                              Navarro County, Texas
                              Trial Court No. C34053


                          MEMORANDUM OPINION


      Ruth Busby appeals from a conviction for the offense of possession of a

controlled substance for which she was sentenced to 180 days in the state jail. TEX.

HEALTH & SAFETY CODE ANN. § 481.112 (West 2010). In her sole issue, Busby complains

that the trial court erred by refusing to include an instruction on duress in the jury

charge. Because we find no error, we affirm the judgment of the trial court.
Jury Charge Error

         Busby complains that the trial court erred by denying her request for an

instruction on the affirmative defense of duress. See TEX. PEN. CODE ANN. § 8.05 (West

2011). Busby contends that evidence that her husband held a gun to her head and

forced her to smoke methamphetamine a year before the instant offense and her fear of

her husband divorcing her or destroying her property was sufficient to require the trial

court to include the instruction in the jury charge in the guilt-innocence phase of the

trial.

         We review jury charge error with a two-step process. Ngo v. State, 175 S.W.3d

738, 744 (Tex. Crim. App. 2005). First, we determine whether error exists in the charge.

Id. We review a trial court's decision not to include an instruction on a defensive issue

in the charge for an abuse of discretion, and we view the evidence in the light most

favorable to the defendant's requested submission. See Bufkin v. State, 207 S.W.3d 779,

782 (Tex. Crim. App. 2006); Love v. State, 199 S.W.3d 447, 455 (Tex. App.—Houston [1st

Dist.] 2006, pet. ref'd).   Second, if error exists, we review the record to determine

whether the error caused sufficient harm to require reversal of the conviction. Ngo, 175

S.W.3d at 744.

         The Penal Code defines the defense of 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 death or serious bodily injury to himself or another."


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TEX. PENAL CODE ANN. § 8.05(a). In this context, 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). The defense of duress is not available to a defendant who

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

probable that he would be subjected to compulsion." Id. § 8.05(d).

        When the evidence raises a defensive theory, the theory must be submitted to the

jury regardless of whether the supporting evidence is strong, feeble, unimpeached,

contradicted, credible, or incredible. See Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim.

App. 2007).

        Busby argues that she put a quantity of her husband's methamphetamine in her

purse and hid it in a closet approximately two days prior to its discovery by law

enforcement. The methamphetamine was her husband's and he had been keeping it on

his bedside table. Busby testified that she took the methamphetamine at a time when

her husband was not at home because she was trying to keep her husband from

consuming it. Busby testified that she was primarily afraid that if she left her husband

he would destroy or get rid of her property or that she would lose him. She also

testified that she was afraid of what he would do if he found out that she had taken it

from him.

        There was no evidence that Busby's husband threatened her with imminent

serious bodily harm or death if she did not possess the methamphetamine.            Any


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potential threat would have been upon her husband's discovery that Busby had taken

the drugs from him, not because she refused to possess it based on a theoretical threat.

There was no evidence of a threat and no evidence of imminent serious bodily injury or

death if Busby did not commit the offense. The trial court did not abuse its discretion

by denying Busby's requested instruction on duress. We overrule Busby's sole issue.

Conclusion

        Having found no error, we affirm the judgment of the trial court.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 22, 2013
Do not publish
[CR25]




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