                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                  §
 FRANCISCO GARCIA,                                                No. 08-09-00277-CR
                                                  §
                         Appellant,                                    Appeal from
                                                  §
 v.                                                           Criminal District Court No. 1
                                                  §
 THE STATE OF TEXAS,                                            of El Paso County, Texas
                                                  §
                         Appellee.                                 (TC #20090D02260)
                                                  §

                                           OPINION

       Francisco Garcia appeals his conviction for the offense of delivery of cocaine in an amount

equal to or more than 400 grams. A jury found Appellant guilty and assessed punishment at

imprisonment for fifteen years in the Texas Department of Criminal Justice, Institutional Division.

We affirm.

                                      FACTUAL SUMMARY

       On April 29, 2009, Detective Esteban Anchondo, an undercover officer with the El Paso

Police Department Narcotics Division, spoke with an unknown person about buying two kilos of

cocaine, one to be delivered and paid in full while paying half the price for the other to be delivered

at a later date. After the initial conversation, Anchondo drove his unmarked police unit, a Chevy

pickup truck, to the parking lot of the Hooters restaurant at Cielo Vista Mall in El Paso, Texas to

conduct the undercover drug buy. Anchondo parked about 100 yards north of the restaurant facing

west and remained alone inside his vehicle. Nearby, other members of the unit were assisting in

surveillance and recording audio and video of the undercover operation. Appellant drove up next

to Anchondo’s pickup in a green Toyota Tacoma and parked. Anchondo motioned to Appellant that
the passenger door was unlocked and he got into the passenger seat, placing the jacket he was

carrying on his lap.

       Once in Anchondo’s pickup, Appellant opened the jacket that laid on his lap and revealed

a bundle, which Anchondo immediately recognized as a kilo of cocaine. Anchondo asked if he was

supposed to give Appellant all of the money, $23,000 for one kilo plus $12,000 for the second kilo,

but Appellant merely answered, “Uh-huh.” After handing over the money Anchondo asked if he

could see the cocaine, placed the bundle on the center console of his pickup, and proceeded to take

out a small pocket knife with which he cut into the wrapping on the bundle to determine it was

cocaine. As Anchondo cut into the wrapping he noticed a white powder over another layer of tape,

which he thought unusual. Appellant explained that after the cocaine is packaged they put another

layer of white powder that is similar to baby powder or talcum powder. After the exchange was

complete, law enforcement officers announced themselves and Appellant was arrested.

       Appellant is a Mexican national who was living in Ciudad Juarez, Chihuahua, Mexico at the

time of his arrest. He shared a house, which included a small store, with his mother and sister. At

trial, Appellant raised the affirmative defense of duress and explained that he had received threats

to his life and the lives of his family members if he did not assist in getting drugs to the United

States. He testified that between January 2009 and a approximately a week before he was arrested

the following occurred: (1) he was approached to assist in trafficking drugs across the international

border with the United States from Mexico and declined; (2) his family’s home and store were shot

at by a group of unknown men in a pickup truck; (3) he was contacted by an unknown male who told

him, “You see, I had already told you, they don’t play around;” (4) he was visited by a second group

of unknown men who referenced the shooting of his home and store-front and informed him

that,“They’re going to call you on the phone, that’s all;” (5) after succumbing to the “warnings,”
Appellant spoke on the phone and then met with an unknown man with a “hoarse voice” who

threatened him with a gun if he did not comply with the requests to deliver drugs. Two days before

he was arrested in this case, Appellant went to see the man with the hoarse voice. The man

instructed Appellant to cross the border at the Zaragoza bridge and someone would be waiting for

him to take him where he needed to go. Appellant added that in addition to being scared of the man

with the “hoarse voice,” he was scared because “there had already been a lot of people killed in

Juarez.”

       During cross-examination, Appellant testified that at his meeting two days before his arrest

the man did not have a gun and the man did not threaten Appellant or his family. He also testified

that even on the day of his arrest, no one threatened Appellant or his family with imminent death or

bodily harm should Appellant refuse to go through with the plan. Appellant revealed that he had not

made any mention of the requests to transfer drugs, warning phone calls, warning visits, or threats

to his family until approximately a month before trial.

       The trial court’s charge included an instruction on duress. The jury rejected Appellant’s

defense and found him guilty of delivery of cocaine as charged in the indictment.

                                       CHARGE ERROR

       In his sole issue, Appellant complains that the second application paragraph of the jury

charge, which included the affirmative defense of duress, was so confusing and misleading that the

jury could not properly apply the law to the facts. The application paragraph authorized the jury to

find the defendant not guilty:

       If you find that the defendant did not unlawfully intentionally or knowingly
       deliver, to-wit: actually transfer or a constructive transfer to Esteban Anchondo a
       controlled substance, namely cocaine, having an aggregate weight, including
       adulterants or dilutants, of 400 grams or more or if you have a reasonable doubt
       thereof, or if then you find by a preponderance of the evidence that at the time of the
       conduct charged, 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, you will find the defendant not guilty (VERDICT FORM A).
       [Emphasis added].

Specifically, Appellant contends that the charge should have included one or the other of the

highlighted clauses, but not both. The State counters with the invited error doctrine. At the charge

conference, the State asked that the latter phrase be stricken, while Appellant insisted that he was

entitled to have it included.

       In reviewing charge error, we generally must first determine whether error exists. Druery

v. State, 225 S.W.3d 491, 504 (Tex.Crim.App. 2007). If we find error, we then determine whether

the error caused sufficient harm to require reversal. Id. The degree of harm necessary for reversal

depends upon whether the appellant preserved the error. Id. Since Appellant did not preserve error,

the egregious harm standard would normally apply. See id. But it does not apply here because the

error was invited.    Druery, 225 S.W.3d at 505-06; Prystash v. State, 3 S.W.3d 522, 531

(Tex.Crim.App. 1999).

       As a species of estoppel, the doctrine of invited error acts to exclude, as error, “those actions

of the trial court actually sought by the party in that tribunal.” Prystash, 3 S.W.3d at 531. The

Prystash court found that the defendant was not permitted to complain that the trial court’s deletion

of a portion of the charge at the defendant’s request was error. Id. at 532. “Just as the law of

entrapment estops the State from making an offense of conduct that it induced, the law of invited

error estops a party from making an appellate error of an action it induced.” Id. at 531; Willeford v.

State, 72 S.W.3d 820, 823 (Tex.App--Fort Worth 2002, pet. ref’d.)(the invited error rule prohibits

a party from succeeding in having an alleged jury charge error reviewed by a higher court in hopes

of reversal, where that party requested the jury charge and the charge was given or the party
affirmatively argued that the trial court include or exclude a portion of the charge).

       Appellant also maintains that the charge is erroneous because it includes the affirmative

defense of duress in the second application paragraph rather than in a separate paragraph. The

meaning of a jury charge “should be taken from the whole charge, not just from a certain few

instructions read in isolation.” Hernandez v. State, 340 S.W.3d 55, 60 (Tex.App.--Houston [1st

Dist.] 2011, no pet.), quoting Plata v. State, 926 S.W.2d 300, 302 (Tex.Crim.App. 1996), overruled

on other grounds by Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997). Jurors are not

authorized to return a verdict except under those conditions given by the application paragraph of

the charge. Delapaz v. State, 228 S.W.3d 183, 212 (Tex.App.--Dallas 2007, pet. ref’d). A charge

is adequate “if it either contains an application paragraph specifying all of the conditions to be met

before a conviction under such theory is authorized, or contains an application paragraph authorizing

a conviction under conditions specified by other paragraphs of the jury charge to which the

application paragraph necessarily and unambiguously refers, or contains some logically consistent

combination of such paragraphs.” Id., quoting Plata, 926 S.W.2d at 304.

       The San Antonio Court of Appeals addressed an analogous argument in Wingo v. State, 143

S.W.3d 178 (Tex.App.--San Antonio 2004), aff’d, 189 S.W.3d 270 (Tex.Crim.App. 2006). Wingo,

who had been convicted of tampering with a governmental record, argued on appeal that the

placement and positioning of his statutory defense precluded him from having the defense clearly

presented to the jury. Id. at 190. The statutory defense and its application to the facts was included

in paragraph VI of the charge, followed by the application paragraph regarding the offense in

paragraph VII. Id. Citing Plata, Wingo asserted that the statutory defense was not logically arranged

in relation to the application paragraph and that the structure of the charge diminished the relevance

and importance of the statutory defense while amplifying the meaning of the conviction language
in the application paragraph. Id. The court of appeals rejected his argument. Id.

       Like the defendant in Wingo, Appellant has not cited any authority for his argument that the

affirmative defense of duress should have been included in a separate paragraph, nor are we

persuaded that a separate paragraph is the only logical construction. The second application

paragraph sets forth all of the conditions under which the jury would be required to find Appellant

not guilty. We overrule the sole point and affirm the judgment of the trial court.



September 28, 2011
                                                     ANN CRAWFORD McCLURE, Justice

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

(Do Not Publish)
