                                                                              PD-1467-14
                                                             COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                          Transmitted 12/22/2014 3:03:11 PM
                                                            Accepted 12/29/2014 2:22:36 PM
                                                                               ABEL ACOSTA
                           CAUSE NO. PD-1467-14                                        CLERK

                                   IN THE
           COURT OF CRIMINAL APPEALS OF TEXAS
                        ______________________________

                      STEPHEN CRAIG WHITWORTH
                                    Appellant/Petitioner

                                      V.

                          STATE OF TEXAS
                                         Appellee/Cross-Petitioner
                        _____________________________

             From the Eleventh Court of Appeals, Eastland, Texas
                    Appellate Cause No. 11-12-00114-CR

           Tried in the 441st District Court, Midland County, Texas
                          Trial Cause No. CR38839

                    ______________________________________

    STATE’S CROSS-PETITION FOR DISCRETIONARY REVIEW
                 ______________________________

                                 Teresa Clingman
                    District Attorney, Midland County, Texas

                             Carolyn D. Thurmond
                           Assistant District Attorney
                            State Bar No. 00785104
December 29, 2014
                         500 North Loraine, Suite 200
                             Midland, Texas 79701
                              (432) 688-4420 voice
                               (432) 688-4938 fax
                      carolyn_thurmond@co.midland.tx.us
LIST OF PARTIES AND THEIR COUNSEL

     Pursuant to TEX. R. APP. P. 38.1(a), the State certifies the

following is a complete list of the names and addresses of the parties to

the final judgment of trial and their counsel.

Appellant, Trial and Appellate Counsel

         Stephen Craig Whitworth, Appellant
          Inmate, Texas Department of Criminal Justice

         David Martinez
          Attorney at Law
          1663 Broadway
          Lubbock, Texas 79401
          Appellate Counsel

         Rick A. Navarrete
          NAVARRETE & SCHWARTZ
          1007 West Texas Avenue
          Midland, Texas 79701
          Former Appellate Counsel

         Roy Scott
          Attorney at Law
          407 N. Big Spring St., Ste. 200
          Midland, Texas 79701
          Trial Counsel




                                    ii
State of Texas Trial Counsel and Appellate Counsel

         The State of Texas, Appellee/Petitioner

         Teresa Clingman
          District Attorney for Midland County, Texas
          500 N. Loraine, Ste. 200
          Midland, Texas 79701

         Laura Nodolf, First Assistant District Attorney
          500 N. Loraine, Ste. 200
          Midland, Texas 79701
          Trial Counsel

         Carolyn D. Thurmond, Assistant District Attorney
          500 N. Loraine, Ste. 200
          Midland, Texas 79701
          Appellate Counsel

Trial Judge

         Hon. Rodney W. Satterwhite
          441st District of Midland County, Texas
          500 N. Loraine, Ste. 901
          Midland, Texas 79701




                                  iii
TABLE OF CONTENTS

Table of Contents

LIST OF PARTIES AND THEIR COUNSEL ...........................................ii

TABLE OF CONTENTS .......................................................................... iv

INDEX OF AUTHORITIES ..................................................................... vi

STATEMENT REGARDING ORAL ARGUMENT .................................. 2

STATEMENT OF THE CASE .................................................................. 2

STATEMENT OF PROCEDURAL HISTORY ......................................... 3

STATE’S GROUND FOR REVIEW .......................................................... 5

        The defense of duress requires the defendant must not
        intentionally, knowingly or recklessly place himself in a
        situation in which it is probable he would be subjected to
        compulsion. A defendant who associated with a drug
        dealer and discussed the murder of another subjected
        himself to the compulsion. Did the Court of Appeals err in
        holding the trial court abused its discretion for failing to
        instruct the jury on the defense of duress.

ARGUMENT ............................................................................................. 6
      A. Court of Appeals Opinion .............................................................. 6
      B. Standard of Review ........................................................................ 6
      C. The Law of Duress Defense ........................................................... 7
      D. Application of Law to the Facts .................................................... 9



                                                  iv
PRAYER FOR RELIEF ........................................................................... 13

CERTIFICATE OF SERVICE................................................................. 15


CERTIFICATE OF COMPLIANCE ........................................................ 16

APPENDIX ................................................................................................ 1




                                                    v
INDEX OF AUTHORITIES

Cases
Anguish v. State, 991 S.W.2d 883 (Tex. App.—Houston [1st Dist.] 1999,
  pet. ref’d) ................................................................................................ 8

Bernal v. State, 647 S.W.2d 699, 706 (Tex. App. – San Antonio 1982, no
  pet.) ........................................................................................................ 9

Cameron v. State, 925 S.W.2d 246, 250 (Tex app – El Paso, 1995, no
 pet.) ........................................................................................................ 9

Guffey v. State, 11-10-00106-CR, 2012 Tex. App. LEXIS 3293 (Tex.
 App.—Eastland 2012, pet. ref’d) ......................................................... 11

Guia v. State, 220 S.W.3d 197 (Tex. App. – Dallas 2007, pet. ref’d) ...... 10

Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993) .......................... 7

Pennington v. State, 54 S.W.3d 852, 856 (Tex. App.—Fort Worth 2001,
  pet. ref’d). ............................................................................................... 7

Ramirez v. State, 336 S.W.3d 846 (Tex. App.—Amarillo 2011, pet. ref’d).
  ................................................................................................................ 8

Whitworth v. State, 11-12-00114-CR, 2014 Tex. App. LEXIS 5864 (Tex.
 App.—Eastland 2014) .............................................................. 2, 4, 6, 11

Whitworth v. State, 2014 Tex. App. LEXIS 10922 (Tex. App.—Eastland
 2014) ....................................................................................................... 5

Statutes

TEX. PENAL CODE § 1.07(a)(10) (2011) ....................................................... 8

TEX. PENAL CODE ANN. § 19.02(b)(1) (2011) .............................................. 3


                                                        vi
TEX. PENAL CODE ANN. § 19.02(b)(2) (2011) .............................................. 3

TEX. PENAL CODE ANN. § 22.02(a)(1) (2011) .............................................. 3

TEX. PENAL CODE ANN. § 22.02(a)(2) (2011) .............................................. 3

TEX. PENAL CODE ANN. § 8.05(a) (2011)..................................................... 7

TEX. PENAL CODE ANN. § 8.05(c) (2011) ................................................. 7, 8

TEX. PENAL CODE ANN. § 8.05(d) (2011)................................................. 8, 9

Rules

TEX. R. APP. P. 38.1(a),...............................................................................ii

TEX. R. APP. P. 66.3(b) ............................................................................. 12

TEX. R. APP. P. 66.3(f) .............................................................................. 12

TEX. R. APP. P. 68.2(b)................................................................................ 5




                                                  vii
                     CAUSE NO. PD-1467-14

                             IN THE
     COURT OF CRIMINAL APPEALS OF TEXAS
                  ______________________________

                STEPHEN CRAIG WHITWORTH

                                        Appellant/Petitioner

                                   V.

                      STATE OF TEXAS

                                     Appellee/Cross-Petitioner
                  _____________________________

STATE’S CROSS-PETITION FOR DISCRETIONARY REVIEW
             ______________________________



     COMES NOW the State of Texas, by and through her District

Attorney, and respectfully asks this Honorable Court to grant

discretionary review of the above named cause and pursuant thereof

would show the Court as follows:




                                   1
STATEMENT REGARDING ORAL ARGUMENT

      The State requests oral argument. The issues raised by both

parties involve defenses of duress and necessity and the

circumstances of the propriety for the trial court to instruct to the

jury concerning these defenses. Oral argument is necessary in this

case for full development of these issues.



STATEMENT OF THE CASE

      Stephen Craig Whitworth, hereafter referred to as “Appellant,”

was tried by jury for the offenses of murder in Count One, and

aggravated assault with the intent to cause serious bodily injury in

Count Two. (CR1 8-10). The Court of Appeals rejected the State’s

argument Appellant placed himself in a situation in which he could

be subjected to compulsion to commit an offense such as murder.

Whitworth v. State, 11-12-00114-CR, 2014 Tex. App. LEXIS 5864,

**12-14 (Tex. App.—Eastland 2014, pet. filed) (mem. op., not

designated for publication). Appellant associated with the co-


1References to the Clerk’s Record are abbreviated as “CR”, followed by the page
number.
                                       2
defendant who supplied marijuana; Appellant believed the co-

defendant associated with members of a prison gang; also discussed

committing rape and murder.



STATEMENT OF PROCEDURAL HISTORY

Proceedings in the Trial Court

      Appellant was indicted in the 441st District Court of Midland

County, Texas, on August 11, 2011, for the offenses of Murder of

Christopher Easley in Count One, and Count Two, Aggravated

Assault with the intent to cause serious bodily injury to Anne Bostic.

(CR 8-10). See TEX. PENAL CODE ANN. § 19.02(b)(1) (2011), TEX.

PENAL CODE ANN. § 19.02(b)(2) (2011), TEX. PENAL CODE ANN. §

22.02(a)(1) (2011), TEX. PENAL CODE ANN. § 22.02(a)(2) (2011). After

the presentation of evidence and argument of counsel, the jury found

Appellant guilty of the offenses of Murder of Christopher Easley and

Aggravated Assault causing serious bodily injury to Anne Bostic as

alleged in the indictment. (CR 80, 82; RR29 60-61). The jury


2 References
          to the Reporter’s Record are abbreviated as “RR” followed by the
volume number and page number.
                                     3
sentenced Appellant to 20 years imprisonment in the Texas

Department of Criminal Justice Institutional Division for each

count. (CR 95, 96; RR10 72-73). The sentences were pronounced on

March 26, 2012. (CR 103, 108; RR10 75-76). The Judgment of

Conviction as to each count was entered on April 3, 2012. (CR 103-

107, 108-113). Appellant timely filed a notice of appeal. (CR 65).

Proceedings in the Court of Appeals

      On May 30, 2014, the Eleventh Court of Appeals affirmed

Appellant’s conviction for murder in Count One. Whitworth v. State,

11-12-00114-CR, 2014 Tex. App. LEXIS 5864, *11 (Tex. App.—

Eastland 2014, pet. filed). The Court reversed Appellant’s conviction

in Count Two for aggravated assault and remanded the case back to

the trial court for a new trial. Id. at *18.

      Appellant requested a rehearing to review the sufficiency of

the evidence under the law of parties as to Count One. The State did

not file a motion for rehearing as to the decision in Count Two. The

Court of Appeals directed the State to file a response. On September




                                     4
30, 2014, the Court of Appeals denied the Motion for Rehearing and

issued an opinion finding the evidence was sufficient to support

Appellant’s conviction for murder under the law of parties.

Whitworth v. State, 2014 Tex. App. LEXIS 10922 *3 (Tex. App.—

Eastland 2014) (mem. op. on reh’g, not designated for publication).

     The State now petitions this Court to review the opinion and

judgment of the Court of Appeals as to Count Two, the reversal of

the conviction for aggravated assault. See TEX. R. APP. P. 68.2(b)

(Even if time to file a petition for discretionary review has expired, a

party may otherwise do so within 10 days after the timely filing of

another party’s petition).



STATE’S GROUND FOR REVIEW

     The defense of duress requires the defendant must not
     intentionally, knowingly or recklessly place himself in a
     situation in which it is probable he would be subjected
     to compulsion. A defendant who associated with a drug
     dealer and discussed the murder of another subjected
     himself to the compulsion. Did the Court of Appeals err
     in holding the trial court abused its discretion for
     failing to instruct the jury on the defense of duress?



                                   5
ARGUMENT
A. Court of Appeals Opinion

       Appellant requested instructions on the defenses of duress and

necessity for each count at the charge conferences. (RR38 305; RR9

7). The prosecutor objected to the inclusion of the both jury

instructions on the basis Appellant placed himself in the situation in

which he would be subjected to the compulsion. (RR8 305-308). The

trial court denied the requested instructions. (RR8 308).

       In its evaluation of the jury instructions for Count Two, the

Court of Appeals disagreed with the State’s argument Appellant was

not entitled to an instruction on the defense of duress because he

placed himself in a situation in which it was probable for him to be

subjected to compulsion. Whitworth, 2014 Tex. App. LEXIS 5864 at

*14.


B. Standard of Review

       It is well settled that a defendant is entitled to an instruction

on every defensive issue raised by the evidence, regardless of

3References to the Reporter’s Record are abbreviated as “RR” followed by the
volume number and page number.
                                      6
whether that evidence is strong, feeble, unimpeached, or

contradicted. Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim. App.

2007). If the issue is raised by a party, refusal to submit the

requested the requested instruction is reviewed under the abuse of

discretion standard. See Muniz v. State, 851 S.W.2d 238, 254 (Tex.

Crim. App. 1993). The evidence submitted in support of a

justification defense is reviewed in the light most favorable to the

defendant. See Pennington v. State, 54 S.W.3d 852, 856 (Tex. App.—

Fort Worth 2001, pet. ref’d).


C. The Law of Duress Defense

     The duress defense is available if “the actor engaged in the

proscribed conduct because he was compelled to do by threat of

imminent death or serious bodily injury to himself or another.” TEX.

PENAL CODE ANN. § 8.05(a) (2011). Compulsion “exists only if 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)

(2011). Furthermore, the defense is unavailable if the actor,

“intentionally, knowingly, or recklessly placed himself in a situation

                                   7
in which it was probable he would be subjected to the compulsion.”

TEX. PENAL CODE ANN. § 8.05(d) (2011).

     In order to raise the defense of duress, the evidence must show

both compulsion and immediacy. Compulsion “exists only if 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)

(2011). There are two components to immediacy. Anguish v. State,

991 S.W.2d 883, 886-887 (Tex. App.—Houston [1st Dist.] 1999, pet.

ref’d). First, the person making the threat must intend and be

prepared to carry out the threat immediately. Second, carrying out

the threat must be predicated upon the threatened person’s failure

to commit the charged offense immediately. Id.; Ramirez v. State,

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

Furthermore, to avail oneself of the defense the accused must admit

to having engaged in the proscribed conduct. Ramirez, 336 S.W.3d at

851. Conduct is defined as, the act or omission and the culpable

mental state. TEX. PENAL CODE § 1.07(a)(10) (2011).




                                  8
D. Application of Law to the Facts

     The evidence at trial showed Appellant mentioned in his

statement to Sheriff’s Investigator Hunnicutt that he was afraid of

Paul Curtis Lee, (hereafter referred to as “Lee”) because he could

overpower him. (RR6 156). Appellant also said he was afraid of Lee

because of his alleged connection to the Texas Syndicate. (RR6 156).

The claim of duress must have an objective reasonable basis.

Cameron v. State, 925 S.W.2d 246, 250 (Tex app – El Paso, 1995, no

pet.) (defendant generally afraid of co-defendant’s temper, there is

no evidence of a specific threat). Bernal v. State, 647 S.W.2d 699, 706

(Tex. App. – San Antonio 1982, no pet.) (fear that co-defendant

might get violent if defendant did not ‘take his turn” in rape held

insufficient to raise defense of duress).

     Furthermore, the defense is unavailable if the actor,

intentionally, knowingly, or recklessly placed himself in a situation

in which it was probable he would be subjected to the compulsion.”

TEX. PENAL CODE ANN. § 8.05(d) (Jones McClure 2012). Appellant

told Investigator Hunnicutt that Lee discussed he wanted to murder


                                     9
someone. He also expressed the desire to rape and kill someone.

(RR6 123; State’s Exhibit 69). Appellant admitted he lived with a

drug dealer who regularly supplied him with marijuana. (RR8 110-

112).

        The events of the night of June 5 through June 6, 2011, show

appellant placed himself in the situation where he would be

subjected to the compulsion. Appellant and Lee had smoked dope at

the duck pond on “A” Street in Midland, Texas, earlier in the

evening. Appellant contacted Bostic for the express purpose to

smoke marijuana. (RR8 120). Lee and Whitworth drove Easley and

Bostic out to a deserted pump jack in the county to smoke marijuana

rather than going back to the duck pond. The trial court determined

Appellant had placed himself in a situation in which it was probable

he would be subjected to the compulsion in its denial of the duress

instruction. (RR8 306-307).

        The Court of Appeals took issue with the State’s reference to

Guia v. State, 220 S.W.3d 197, 205 (Tex. App. – Dallas 2007, pet.

ref’d), to support its contention of a defendant subjecting himself to

                                   10
compulsion. The State pointed out that in Guia, the defendant

attempted to rip off undercover police officer in drug dealing

transaction, he placed himself in a situation in which he recklessly

was subjected to compulsion. Appellant in the case before the court,

associated with Lee who supplied him with marijuana and discussed

killing another person. (RR6 123; State’s Exhibit 69; RR8 110-112).

     The Court of Appeals also disagreed with the State’s

contention the Guffey case was instructive here. Guffey v. State, 11-

10-00106-CR, 2012 Tex. App. LEXIS 3293 (Tex. App.—Eastland

2012, pet. ref’d) (mem. op., not designated for publication). The State

argued that in Guffey, the Eastland Court of Appeals held the trial

court denied instruction for duress as defendant was a member of

Aryan Brotherhood; therefore, it was probable he could be subjected

to compulsion. Id. The Court of Appeals distinguished Guffey, on the

ground that the defendant was a member of a gang and as such, was

expected to follow orders. Whitworth, 2014 Tex. App. LEXIS 5864 at

*14. Although there is not any evidence Appellant was seeking

membership into a gang; Appellant, like Defendant Guffey,

                                  11
continued to associate with a person he believed had connections to

a gang, i.e. the Texas Syndicate, regularly smoked marijuana and

engaged in activities to consume more marijuana this evening in

question. Whitworth had knowledge of Lee’s desire to commit

murder, as such; he intentionally, knowingly and recklessly

subjected himself to the compulsion. The trial court was correct to

deny the requested jury instruction of duress in Count Two.

     For these reasons the Eleventh Court of Appeals erred in its

reversal of the conviction for aggravated assault on the ground the

trial court erred by denying Appellant’s request for the instruction

on duress. The Court of Appeals erred in its analysis that Appellant

did not place himself in a situation in which he would be subject to

compulsion to commit aggravated assault. This is an important

question of state law which should be settled by the Court of

Criminal Appeals. TEX. R. APP. P. 66.3(b). Furthermore, the Court of

Appeals departed from the usual and accepted course of judicial

proceedings so as to call on the exercise of the Court of Criminal

Appeals’ power of supervision. TEX. R. APP. P. 66.3(f).

                                  12
PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, the State prays

the Court of Criminal Appeals grant this Cross-Petition for

Discretionary Review, that the case be set for submission to the

Court of Criminal Appeals; that after submission, this Court reverse

the decision of the Court of Appeals to reverse the conviction on

aggravated assault count. Alternatively, the State prays that the

judgment of the Court of Appeals be reversed and the case remanded

to the Court of Appeals for application of the proper legal standard.

Alternatively the State prays for a summary remand to the Court of

Appeals.




                                  13
Respectfully submitted,

Teresa Clingman
District Attorney of Midland County, Texas

By:

/S/ Carolyn D. Thurmond
Carolyn D. Thurmond
Assistant District Attorney
State Bar No. 00785104
500 North Loraine, Suite 200
Midland, Texas 79701
(432) 688-4938 fax
(432) 688-4420 voice
carolyn_thurmond@co.midland.tx.us




                                14
CERTIFICATE OF SERVICE

      I, Carolyn D. Thurmond, do hereby certify that on the 22nd
day of December 2014, I sent a true and correct copy of the foregoing
State’s Petition for Discretionary Review by United States Mail,
hand delivery or EServe or email to the following entities:

Lisa McMinn
State Prosecuting Attorney
P.O. Box 13046
Capitol Station
Austin, TX 78711
Information@spa.texas.gov

David Martinez
Attorney at Law
1663 Broadway
Lubbock, Texas 79401
Email: dmtz@aol.com
Attorney for Appellant


                             /S/ Carolyn D. Thurmond
                             _____________________________
                             Carolyn D. Thurmond
                             Assistant District Attorney




                                  15
CERTIFICATE OF COMPLIANCE

        I certify the State’s Cross-Petition for Discretionary Review

was prepared with Microsoft Word 2010 and that according to that

program’s word-count function, the sections covered by TEX. R. APP.

P. 9.4(i)(1) contain 1,434 words. I further certify the body text is

Century Schoolbook 14 point font and the footnote text is 12 point

font.

By:

/S/ Carolyn D. Thurmond
____________________________
Carolyn D. Thurmond
Assistant District Attorney




                                    16
                     APPENDIX
1. Memorandum Opinion of the 11TH Court of Appeals, issued
on May 30, 2014.

2. Memorandum Opinion on Motion for Rehearing, issued on
September 30, 2014.
Opinion filed May 30, 2014




                                    In The


        Eleventh Court of Appeals
                                  __________

                             No. 11-12-00114-CR
                                  __________

             STEPHEN CRAIG WHITWORTH, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 441st District Court
                             Midland County, Texas
                         Trial Court Cause No. CR38839



                     MEMORANDUM OPINION
      The jury convicted Stephen Craig Whitworth of murder and aggravated
assault with a deadly weapon. See TEX. PENAL CODE ANN. §§ 7.01 (parties to
offenses), 7.02 (criminal responsibility for conduct of another), 19.02(b)(1), (2)
(murder), 22.02(a) (aggravated assault) (West 2011).      The jury assessed his
punishment at confinement for twenty years on each count.         The trial court
sentenced him accordingly and ordered his sentences to run concurrently.
Appellant raises four issues on appeal. Because we find that the trial court erred
when it failed to instruct the jury on the defense of duress as to the aggravated
assault charge, we reverse and remand with respect to Appellant’s conviction for
aggravated assault with a deadly weapon. We affirm Appellant’s conviction for
murder.
      The evidence at trial showed that Appellant and Paul Lee picked up Anne
Bostic and Chris Easley at approximately 4:00 a.m. on June 6 to go smoke
marihuana. Lee drove the four of them to a shut-down pump jack in Midland.
Bostic testified that, after the four of them finished smoking a marihuana blunt,
Lee called Easley to the trunk of the car and said he wanted to show Easley
something. Easley walked to the rear of the car. Bostic was sitting sideways in the
rear seat on the driver’s side with her feet hanging out of the car when she heard
the trunk slam and someone get hit. She stood up and saw Easley’s legs on the
ground. Lee was kneeling over the top of Easley and hitting him multiple times.
Lee stopped, and Bostic could hear Easley gargling and wheezing. Lee went back
to Easley, and Bostic could hear air escaping from Easley’s lungs, like he had been
stabbed.
      Easley suffered four crushing blows to his face and four stab wounds to his
chest. His heart was perforated by two of the stab wounds, and bone fragments
penetrated his brain due to the crushing blows to his forehead; he died as a result of
the injuries. There was no dispute that Lee killed Easley.
      Bostic testified that, as Lee was attacking Easley, Appellant held her and
forced her to watch the murder. She said that Appellant told her that she needed to
watch and that Easley needed to be taught a lesson. Appellant took her to the front
of the car, and she asked him if they were going to hurt her. He told her that they
were not going to hurt her but that they were going to have to take her somewhere
                                          2
and that she could not talk to anyone for six months.         Bostic testified that
Appellant left her at the front of the car and went and talked to Lee. When she
started walking away, Appellant came up behind her, started choking her, and
popped her neck. Bostic let her body go limp, and she fell to the ground and
“played dead.” Appellant dragged her over to a bush at the place where he had
already dragged Easley. Bostic heard him say, “She’s dead. It’s okay. She’s
dead.” Bostic then heard footsteps coming toward her. Someone lifted her head
by her hair and cut her throat. She felt blood pouring out of her throat and felt a
hand on her back. Bostic testified that she passed out, woke up next to Easley, and
heard Lee and Appellant getting in Lee’s car and leaving. She waited until the sun
came up and started walking down the road.
      Bostic was able to get back to the main road where a man saw her running
and waving her hands as if she was in need of help. The man stopped to help her,
called 911, and gave her water and a shirt that she could use to stop the bleeding
from her neck. Bostic was treated at Midland Memorial Hospital. She required
immediate surgical intervention in order to survive. She had suffered major trauma
to her neck; her internal jugular veins had been cut. Bostic also suffered multiple
stab wounds to her torso.
      Appellant testified that he, Lee, Bostic, and Easley were standing around the
trunk of the car smoking marihuana when Lee, out of nowhere, attacked Easley
with a set of bolt cutters that Lee had gotten from the trunk of the vehicle.
Appellant testified that he did not try to stop Lee when Lee was hitting Easley
because he knew that Lee could overpower him and that Lee had a weapon; he was
afraid of Lee. He grabbed Bostic by her hand and walked her to the front of the
car. Appellant made her sit on the car and face him. He told her not to watch and
to stay calm. Both he and Bostic were “freaking out.” Appellant saw Lee hit
Easley over and over again with the bolt cutters and saw Lee stab Easley in the
                                         3
neck and in the chest. He did not want to run because Lee had the keys to the car
and because he was afraid Lee would chase him down in the car. He also did not
want to leave Bostic and did not think she would be able to run because Easley had
had to help her to the car when Lee and Appellant picked them up to go smoke
marihuana.
      After Lee had killed Easley, he walked over to Appellant and told him that
he needed to get rid of Easley’s body. Appellant, according to his testimony, just
stood there. Lee gave Appellant “a look” and again told him to get rid of the body.
Appellant walked to the back of the vehicle and was horrified and shocked by what
he saw. He was scared of what Lee could do to him and Bostic after he saw what
Lee had done to Easley. Lee told him again to get rid of the body, and because
Appellant did not want Lee to kill him, Appellant dragged Easley to a nearby bush.
Appellant went back to check on Bostic.
      Lee asked to see Appellant’s cell phone, and he typed a message on
Appellant’s phone that said it was Appellant’s turn to finish Bostic and, if he did
not finish her, he would be next. Appellant testified that he believed that meant, if
he did not kill Bostic, Lee would kill him. Appellant took Bostic fifty feet away
from the vehicle and pretended to break her neck by putting her in a choke hold
and cracking his knuckles loudly. He testified that he was trying to make her pass
out. Her body went limp, and he put her on the ground. He told Lee that she was
dead. Lee said, “She’s still breathing. You’ve got to stab her.” Appellant told Lee
that he could not do that and tried to convince Lee that he had broken her neck and
that she was already dead. Lee told Appellant to give him his knife. Appellant
testified that he was scared and that Lee had this look on his face like he was going
to do something to Appellant if he did not comply. Appellant gave Lee his knife,
and Lee stabbed Bostic four times in the back. Lee then told Appellant to help
move her body next to Easley’s body. The two moved her body and started
                                          4
walking away. Lee began to have second thoughts about Bostic being alive.
Appellant again tried to convince him that she was dead and that he should just
leave her alone. Lee walked back to her body and stabbed her in the neck.
      Lee and Appellant went back to the Travelodge where they were living at
the time, and Lee ordered him to take a shower. Appellant testified that he started
taking sleeping pills in an effort to overdose because he did not want to live after
what he had seen. He then decided that he still needed to tell the police what had
happened, so he stopped taking the pills. After they had showered and picked up
their roommate from work, Lee told Appellant that Appellant had to go with him to
get rid of the clothes that they had been wearing. They drove to a dirt road and set
the clothes on fire. Appellant and Lee then returned to the Travelodge and went to
sleep. Appellant testified that he could not leave because Lee was watching him
and never let him out of his sight. He tried to stay awake until Lee fell asleep, but
the sleeping pills made him fall asleep first. Appellant was later awakened by
Midland County Sheriff’s officers, and they apprehended him and Lee.
      In his first issue, Appellant argues that the evidence was insufficient to
support his conviction as the principal actor for the murder of Easley and the
aggravated assault with a deadly weapon of Bostic. He specifically argues that the
State failed to prove that Appellant himself, as the principal actor, personally
committed either of the charged felonies. Appellant asserts that the State relied on
the law of parties to convict Appellant; however, Appellant does not challenge the
sufficiency of the evidence to support his convictions of murder and aggravated
assault with a deadly weapon based upon the law of parties.           The jury was
instructed under both principal and party theories as to each charge and returned a
general verdict of guilty on each. Even if we were to agree that the evidence was
insufficient to support the convictions of Appellant as a principal actor, he has
failed to challenge the sufficiency of the evidence under the law of parties and has
                                          5
repeatedly stated in his brief that the jury could have convicted him only on the
basis of the law of parties. Therefore, we overrule Appellant’s first issue.
      Appellant asserts in his third and fourth issues that the trial court erred when
it denied his request for a jury instruction on the defense of duress and the defense
of necessity. When the evidence at trial raises a defensive issue, and the defendant
properly requests a jury instruction on that issue, the trial court must submit the
issue to the jury. Booth v. State, 679 S.W.2d 498, 500 (Tex. Crim. App. 1984).
“[A] defense is supported (or raised) by the evidence if there is some evidence,
from any source, on each element of the defense that, if believed by the jury,
would support a rational inference that that element is true.” Shaw v. State, 243
S.W.3d 647, 657–58 (Tex. Crim. App. 2007). When determining whether the
evidence raises a defense, the credibility of the evidence is not at issue; the
evidence may be strong, weak, contradicted, unimpeached, or unbelievable. Muniz
v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993).
      The doctrine of confession and avoidance applies to the defense of duress
and the defense of necessity. Juarez v. State, 308 S.W.3d 398, 399 (Tex. Crim.
App. 2010) (necessity); Gomez v. State, 380 S.W.3d 830, 834 (Tex. App.—
Houston [14th Dist.] 2012, pet. ref’d) (duress).        Thus, to be entitled to an
instruction on the defense of duress, Appellant must point to defensive evidence
that shows that he admits to every element of the offense, including the culpable
mental state. Shaw, 243 S.W.3d at 659.
      The State argues that Appellant did not admit to the charged
conduct: murder and aggravated assault with a deadly weapon. Although the State
is correct in this assertion as far as Appellant’s involvement as a principal is
concerned, Appellant did admit to conduct that could implicate him as a party to
the offense of aggravated assault with a deadly weapon. A person can be held
criminally responsible as a party to an offense, even when the person does not
                                          6
commit the actual offense, if the person is criminally responsible for the act of
another. See TEX. PENAL CODE ANN. § 7.01 (West 2011). A person is criminally
responsible for an offense committed by the conduct of another if, with the intent
to promote or assist the commission of the offense, the person solicits, encourages,
directs, aids, or attempts to aid the other person to commit the offense.         Id.
§ 7.02(a)(2).
      The State argues that Appellant denied assisting in the offense as a party
because, when specifically asked whether he solicited, encouraged, directed, aided,
or attempted to aid Lee in murdering Easley or in assaulting Bostic, he responded
that he did not. However, Appellant testified that, when Lee told him to stab
Bostic and he responded that he could not do that, Lee demanded Appellant’s
knife. Appellant handed Lee his knife, and Lee stabbed Bostic. In addition, in his
statement to police, Appellant said that he told Lee that Bostic was still breathing
and that he told Lee to “finish her.” Thus, although Appellant never admitted to
actually stabbing Bostic or to committing the specific acts as listed in the statute,
he did admit to conduct that showed that he aided and encouraged Lee to commit
the offense of aggravated assault with a deadly weapon.
      We do not believe, however, that Appellant admitted to conduct that would
implicate him as a party to the offense of murder. The only act in relation to the
murder of Easley that Appellant admitted to was that he dragged Easley’s body to
a bush after Lee told him multiple times to do so. This conduct occurred after Lee
had already committed the offense of murder. Acts done after the offense is
completed do not make the accused a party to the offense. Gross v. State, 380
S.W.3d 181, 185–88 (Tex. Crim. App. 2012); Morrison v. State, 608 S.W.2d 233,
235 (Tex. Crim. App. 1980). Thus, Appellant did not admit to conduct that made
him liable as a party to the offense of murder. The trial court did not err when it
denied Appellant’s request for an instruction on the defenses of duress and
                                         7
necessity as to the charge of murder. We overrule Appellant’s third and fourth
issues as to the murder charge.
      As to the aggravated assault charge, we must now look to whether the
evidence supports an instruction on the defense of duress. The affirmative defense
of duress requires the actor to have engaged in the conduct because he was
compelled to do so by threat of imminent death or serious bodily injury to himself
or another. PENAL § 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). 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.” Id. § 8.05(d).
      Appellant testified that Lee typed a message on Appellant’s phone that said
that it was Appellant’s turn to finish Bostic and that, if he did not finish her, he
would be next. Appellant believed that Lee meant that, if Appellant did not kill
Bostic, Lee would kill him. Appellant then pretended to kill her and told Lee that
she was dead. When Lee told Appellant that she was still breathing and that
Appellant needed to stab her, Appellant told Lee that he could not do that and tried
to convince Lee that she was already dead. Lee called Appellant a “pussy” and
told Appellant to give him his “f-----g” knife. Appellant testified that he was
scared and that Lee had this look on his face like he was going to do something to
Appellant if he did not comply. Appellant gave Lee his knife, and Lee stabbed
Bostic.
      Appellant also testified that Lee had become more aggressive since he
started selling marihuana. Lee was bigger and taller than Appellant and had
overpowered him in several physical altercations. Appellant also testified that Lee
had connections with prison and street gangs and that he feared what Lee could do
to him if he told the police what had happened. He explained that the reason he
                                          8
finally told police about what had happened was because he was moved to
“segregation” in jail and realized that Lee could not get to him there.
      After reviewing the relevant evidence, we find that the evidence does
support an instruction on the defense of duress.         Appellant testified that he
pretended to kill Bostic because he was afraid Lee was going to kill him if he did
not kill her and that he gave Lee his knife to stab Bostic because he was afraid of
what Lee would do to him. In addition, Appellant’s testimony indicates that the
incident with Bostic occurred after Appellant watched Lee kill Easley and after he
was forced to drag Easley’s body to a bush—an act that he also testified he
committed because he was in fear for his and Bostic’s lives. Thus, Appellant
presented some evidence, regardless of how strong, weak, contradicted,
unimpeached or unbelievable, to show that he engaged in conduct to aid and
encourage Lee to commit the offense of aggravated assault against Bostic because
he was compelled to do so by threat of imminent death or serious bodily injury.
See Muniz, 851 S.W.2d at 254.
      The State argues that, even if the defense was raised in this case, Appellant
was not entitled to an instruction because he placed himself in a situation in which
it was probable for him to be subjected to compulsion. We disagree. The State
directs us to Guia v. State, 220 S.W.3d 197 (Tex. App.—Dallas 2007, pet. ref’d),
and Guffey v. State, No. 11-10-00106-CR, 2012 WL 1470185 (Tex. App.—
Eastland April 26, 2012, pet. ref’d) (mem. op., not designated for publication), to
support its argument.         Each of these cases is distinguishable from the
circumstances of this case.
      In Guia, the Dallas Court of Appeals was asked to review the sufficiency of
the evidence to support the jury’s rejection of the defendant’s duress defense.
Guia, 220 S.W.3d at 205. The court stated that it would “find the evidence
factually sufficient to support the rejection of a claim of duress where the evidence
                                          9
shows that the defendant intentionally, knowingly, or recklessly placed himself in a
situation in which it was probable that he would be subjected to compulsion.” Id.
After reviewing the evidence, the court held that it could not conclude that the
overwhelming weight of the evidence supported the defendant’s claim of duress.
Id. The court in Guia did not hold that the defendant was not entitled to an
instruction on duress but, rather, that the evidence was sufficient to support the
jury’s rejection of the defense. Id. The question before us is not one of sufficiency
of the evidence, but one addressed at entitlement to a jury issue. Furthermore, the
defendant in that case claimed that he sold drugs to an undercover police officer
only after the officer confronted him, armed with three guns. Id. However, the
evidence showed that the officer gave the defendant money to buy drugs and that
the defendant then took off. Id. at 200. The officer later found the defendant at his
home and demanded that the defendant give him the drugs. Id. The officer had
already purchased drugs from the defendant at an earlier date. Id. at 200. The
circumstances in Guia are very different from the facts of this case; Guia does not
support the State’s argument that Appellant was not entitled to an instruction on
the defense of duress.
      In Guffey, we held that the defendant was not entitled to an instruction
because the evidence showed that he was a member of the Aryan Brotherhood and
that a higher ranking member commanded him to kidnap a woman that had just
ended a romantic relationship with the higher ranking gang member. Guffey, 2012
WL 1470185, at *1, 3. We explained that the defendant, through his membership
in the Aryan Brotherhood, placed himself in a situation in which he would be
obligated to carry out orders from higher ranking members and, thus, placed
himself in a situation in which he would be subjected to compulsion. Id. at *3–4.
      Here, the State contends that Appellant also placed himself in a situation in
which he would be subjected to compulsion because Appellant continued to live
                                         10
with and associate with a person that he believed had connections with organized
crime, a person that had expressed a general desire to murder and rape someone, a
person that had dealt and consumed drugs, and a person that was bigger than
Appellant and could overpower him. These circumstances are very different from
the circumstances in Guffey in which the defendant was a member of a gang and,
through that membership, knew that he would have to take orders from higher
ranking members. The evidence here did not show that Lee had ever threatened
Appellant to act in a certain way or that Appellant was afraid that Lee would use
his prison gang connections against him prior to the murder and aggravated assault.
Furthermore, we do not believe that Appellant’s testimony, that Lee had recently
made the comment that Lee wanted to murder and rape someone, shows that
Appellant placed himself in a situation in which he would be forced to commit
such a heinous crime. Therefore, because we find that Appellant admitted to
conduct that made him responsible as a party to the aggravated assault, that
Appellant testified that he was in fear for his life when he committed such conduct,
and that the evidence does not show that he placed himself in a situation in which
he would be subject to compulsion, we hold that the trial court erred when it
denied Appellant’s request for an instruction on the defense of duress.
      Having found that the trial court erred, we must now determine whether the
error was harmful. A properly preserved error in the jury charge requires reversal
if the error was calculated to injure the rights of the defendant, meaning that
reversal is required if the accused suffered some harm from the error. TEX. CODE
CRIM. PROC. ANN. art. 36.19 (West 2006); Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1985). The actual degree of harm caused by the error must be
determined in light of the entire jury charge; the state of the evidence, including the
contested issues and the weight of the probative evidence; the argument of counsel;


                                          11
and any other relevant information revealed by the record. Almanza, 686 S.W.2d
at 171.
      Here, Appellant properly preserved error when he requested the defensive
instruction and when he objected to the trial court’s exclusion of the instruction
from the jury charge. Thus, if we find that Appellant suffered some harm from the
trial court’s decision to exclude the defensive instruction as to the aggravated
assault charge, then we must reverse that conviction. Appellant’s theory was that
he was forced to participate in the aggravated assault because Lee threatened to kill
him if he did not. Appellant testified that he had no idea that either of the crimes
was going to take place and that he thought they were just going to smoke some
marihuana and then were going to go to the motel and go to sleep. Because
Appellant’s defense in the aggravated assault case was based upon duress, we
cannot say that he did not suffer some harm from the trial court’s error. We sustain
Appellant’s third issue as to his conviction for aggravated assault with a deadly
weapon.
      Because we have found that the trial court erred when it failed to instruct the
jury on the defense of duress, it is not necessary for us to address Appellant’s
fourth issue, as to the aggravated assault charge, in which Appellant contends that
the trial court also erred when it failed to instruct the jury on the defense of
necessity. See TEX. R. APP. P. 47.1. It is also not necessary for us to address
Appellant’s second issue as to whether the trial court erred when it excluded expert
testimony regarding Appellant’s susceptibility to duress. See id.




                                         12
      We affirm the judgment of the trial court as to Appellant’s conviction and
punishment for murder.       We reverse the judgment of the trial court as to
Appellant’s conviction for aggravated assault with a deadly weapon, and we
remand the cause to the trial court for further proceedings on that charge.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


May 30, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




                                         13
Opinion filed September 30, 2014




                                     In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-12-00114-CR
                                   __________

             STEPHEN CRAIG WHITWORTH, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 441st District Court
                              Midland County, Texas
                         Trial Court Cause No. CR38839


                  MEMORANDUM OPINION ON
                   MOTION FOR REHEARING
      Appellant, Stephen Craig Whitworth, has filed a motion for rehearing in this
court in which he asks us to reconsider our opinion dated May 30, 2014. See
Whitworth v. State, No. 11-12-00114-CR, 2014 WL 2527762 (Tex. App.—
Eastland May 30, 2014, no pet. h.). Appellant contends in his motion that we erred
when we held that Appellant did not challenge the sufficiency of the evidence
under the law of parties, and he urges us to consider the issue in the interest of
justice. Although we believe that Appellant failed to present the issue to this court
in his original briefing, we will address the issue in order to resolve any concerns
that our original opinion may have raised. Because our analysis of this issue does
not change our disposition of Appellant’s appeal, we deny Appellant’s motion for
rehearing.
      Appellant specifically argues that our opinion dated May 30, 2014, raises
serious doubts as to whether Appellant was guilty as a party to the offense of
murder because we held that Appellant’s conduct of dragging Chris Easley to a
bush, after Paul Lee had stabbed Easley with bolt cutters, was not conduct that
implicated Appellant as a party to the offense of murder because it occurred after
the offense. See id. at *4 (“Acts done after the offense is completed do not make
the accused a party to the offense.”). If Appellant’s conduct of dragging Easley
had been the only evidence at trial of Appellant’s involvement in Easley’s murder,
Appellant would be correct in his assertion that the evidence was insufficient to
support a conviction for murder under the law of parties. However, this was not
the only evidence that was presented regarding Appellant’s involvement in the
murder; it was just the only act that Appellant admitted to committing.
      Anne Bostic, who was present at the time of the murder, and Deven Bomar,
who was housed with Appellant in the Midland County jail, testified regarding
Appellant’s involvement in the murder. Bostic testified that Appellant came up
behind her, grabbed her around the throat with one arm, held her arm with his other
hand, and told her that she needed to watch this because “Chris needs to be taught
a lesson.” Bomar testified that Appellant told him that he was in jail for beating up
and stabbing someone. Appellant said that he had been partying one night, became
pretty drunk, took some pills, went to the country, and got into a fight with Easley.
Appellant beat up Easley, stabbed him multiple times, and dragged Easley’s body
                                          2
away. Appellant also told Bomar that Bostic began retaliating and so Appellant
tried to break her neck and stabbed her as well. Bomar summed up his testimony
by saying, “[H]e just said he was in here for stabbing Chris and beating him up and
trying to drag him off and that Anne tried to get in the way and he tried to kill her,
too.”
        We hold that this evidence was sufficient to support Appellant’s conviction
for murder under the law of parties. See TEX. PENAL CODE ANN. § 7.01 (West
2011). A person is criminally responsible for an offense committed by the conduct
of another if, with the intent to promote or assist the commission of the offense, the
person solicits, encourages, directs, aids, or attempts to aid the other person to
commit the offense.       Id. § 7.02(a)(2).     Although Appellant denied that he
participated in the murder beyond being forced to drag Easley’s body away, the
jury, as the trier of fact, was the sole judge of the credibility of the witnesses and of
the weight to be given their testimony. TEX. CODE. CRIM. PROC. ANN. art. 36.13
(West 2007), art. 38.04 (West 1979). As such, the jury was entitled to accept or
reject any or all of the testimony of any witness. Adelman v. State, 828 S.W.2d
418, 421 (Tex. Crim. App. 1992). In addition, the jury was entitled to draw
reasonable inferences from the evidence. Jackson v. Virginia, 443 U.S. 307, 319
(1979). Here, the jury could have inferred that Appellant assisted Lee in the
commission of the offense by holding Bostic or by stabbing Easley himself. We
have reviewed the evidence in the light most favorable to the verdict, and we hold
that a rational trier of fact could have found beyond a reasonable doubt that
Appellant committed the offense of murder under the law of parties. See id.




                                           3
      Appellant’s motion for rehearing is denied, and our opinion dated May 30,
2014, stands.




                                                JIM R. WRIGHT
                                                CHIEF JUSTICE


September 30, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




                                        4
