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
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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
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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.




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