                                                                                             ACCEPTED
                                                                                        13-14-00201-CR
                                                                          THIRTEENTH COURT OF APPEALS
                                                                                CORPUS CHRISTI, TEXAS
        FILED                                                                      2/18/2015 4:01:27 PM
IN THE 13TH COURT OF APPEALS                                                          DORIAN RAMIREZ
        CORPUS CHRISTI                                                                           CLERK

          2/18/15                IN THE COURT OF APPEALS
DORIAN E. RAMIREZ, CLERK           FOR THE THIRTEENTH
BY DTello                           DISTRICT OF TEXAS        RECEIVED IN
                                                       13th COURT OF APPEALS
                                 CAUSE NO. 13-14-00201-CR
                                                       CORPUS CHRISTI/EDINBURG, TEXAS

                                  ON DIRECT APPEAL    FROM:2/18/2015 4:01:27 PM
                                                            DORIAN E. RAMIREZ
                                                                   Clerk
                                  IN THE DISTRICT COURT OF
                               THE 107TH JUDICIAL DISTRICT IN
                                   CAMERON COUNTY, TEXAS

                                 CAUSE NO. 2012-DCR-02626

          THE STATE OF TEXAS                     §    IN THE DISTRICT COURT
                                                 §
          Vs.                                    §    107TH JUDICIAL DISTRICT
                                                 §
          JOANNA GONZALEZ                        §    CAMERON COUNTY, TEXAS

                                    * * * * * * * * * *
                                     APPELLANT'S BRIEF
                                    * * * * * * * * * *
                                      By:
                                          Larry Warner,
                                          Counsel for Appellant
                                          3109 Banyan Circle
                                         Harlingen,Tx 78550
                                         Phone 956 230 0361;
                                         Fax 866 408 1968
                                         Tex.State Bar# 20871500
                                         Usdc,Stdx# 1230
                                         office@larrywarner.com
                                         website: larrywarner.com
                                         Member, Bar of the Supreme Court
                                         of the United States(1984)
                                         Board Certified, Criminal Law
                                         Texas      Board     of    Legal
                                         Specialization(1983)

          APPELLANT REQUESTS ORAL ARGUMENT,
          PURSUANT TO TEX.R.APP.PROC.39.7
Pursuant to Tex.R.App.Proc.38.1(a),Appellant provides the
following identity of parties and counsel:


             PARTIES AND INTERESTED PERSONS

 1.   Joanna Gonzalez, Appellant.

 2.   Hon. Peter C. Gilman, State Bar No. 07952500,
      Assistant District Attorney, Cameron County
      Courthouse, 964 East Harrison, Brownsville,
      Texas 78520, Phone (956) 544-0849.
      PROSECUTING ATTORNEY AT TRIAL

 3.   Hon. Gabriela Martinez, State Bar No. 24062873,
      Assistant District Attorney, Cameron County
      Courthouse, 964 East Harrison, Brownsville,
      Texas 78520, Phone (956) 544-0849.
      PROSECUTING ATTORNEY AT TRIAL

 4.   Hon. Luis V. Saenz, State Bar No. 17514880,
      District Attorney, District Attorney, Cameron
      County Courthouse, 964 East Harrison,
      Brownsville, Texas 78520, Phone (956) 544-0849.
      PROSECUTING ATTORNEY AT TRIAL AND ON APPEAL

 5.   Hon. Raynaldo Rodriguez, Jr., State Bar No.
      24046745, Attorney at Law, 1000 East Van Buren,
      Brownsville, Texas 78520, Phone (956) 778-8445
      DEFENSE ATTORNEY AT TRIAL

 6.   HON. LARRY WARNER, State Bar No. 20871500, Law
      Office of Larry Warner, 3109 Banyan Circle,
      Harlingen, TX 78550. Phone (956) 230-0361.
      DEFENSE ATTORNEY ON APPEAL




                      INITIAL BRIEF - 2
Pursuant to Tex.R.App.Proc.38.1(b,Appellant provides
the following table of contents:


                   TABLE OF CONTENTS

                                                    PAGE

IDENTITY OF PARTIES...................................2

TABLE OF CONTENTS.....................................3

TABLE OF AUTHORITIES..................................4

STATEMENT OF CASE.....................................5

ISSUES PRESENTED......................................6

 1.   Did Young Woman (Ms. Joanna Gonzalez) prove her

      defense of duress by a preponderance of the

      evidence?



STATEMENT OF FACTS....................................7

SUMMARY OF ARGUMENT................................8-10

ARGUMENT..........................................11-23

CONCLUSION AND REQUEST FOR RELIEF....................24

CERTIFICATE OF SERVICE...............................25

CERTIFICATE OF COMPLIANCE............................25




                      INITIAL BRIEF - 3
Pursuant to Tex.R.App.Proc.38.1(c),Appellant provides
the following index of authorities arranged
alphabetically and indicating the pages of the brief
where the authorities are cited:

                 INDEX OF AUTHORITIES

CASES                                         PAGES
Belt v. State,485 S.W.2d39,42hn2(Ga.App.1997,no pet.)
. . . . . . . . . . . . . . . . . . . . . . . . . .   22
Commonwealth v. Bullock, 590 Pa. 480, 913 A.2d 207,
212–13 (2006) . . . . . . . . . . . . . . . . . . .   15
Commonwealth v. Reffitt (1912) 149 Ky 300, 148 SW 48,
42 LRA NS 329 . . . . . . . . . . . . . . . . . . .   16
Hernandez v. State,191S.W.3d370(Tex.App.–Waco 2006)   14
Jackson v. Virginia,443 U.S.307(1979) . . . . . . .   22
Lawrence v. State,240 S.W.3d 912,917 hn12
fn24(Tex.Crim.App.2007) . . . . . . . . . . . . . .   15
People v. Dupree, 284 Mich. App. 89, 771 N.W.2d 470
(2009), aff'd, 486 Mich. 693, 788 N.W.2d 399 (2010)   15
People v. Keating,174Cal.Rptr.286(Cal.App.[1st Dist.
{4th Div.}]1981,no pet.) . . . . . . . . . . . . 22-23
Rex v. Crutchley (1831) 5 Car & P 133, 172 Eng Reprint
909 . . . . . . . . . . . . . . . . . . . . . . . 17-18
Rice v. State (App. 6 Dist. 1995) 893 S.W.2d 734,
rehearing overruled, petition for discretionary review
refused . . . . . . . . . . . . . . . . . . . . . .   14
State Bank of Commerce v. U.S.Fidelity,28 S.W.2d 184
(Tex.Civ.App.–Texarkana 1930)[internal quotations
unchanged] . . . . . . . . . . . . . . . . . . . .    15


CODES:

V.T.C.A., Penal Code § 8.05   . . . . . . . . . . 12-15
http://law2.umkc.edu/faculty/projects/ftrials/zenger/ze
ngerrecord.html(accessed February 2, 2015) . . . .    18




                      INITIAL BRIEF - 4
Pursuant to Tex.R.App.P.38.1(a), Appellant provides the
following statement of the case, stating concisely the
nature of the case, the course of the proceedings, and
the trial court's disposition of the case:


                 STATEMENT OF THE CASE

 The defendant was charged by indictment with illegal

possession of a firearm.

 She pleaded not guilty.

 She tried the issue of guilt or innocence to a jury.

 She testified in her own behalf and averred duress,

saying that she had had the gun at the instance of her

boyfriend, who threatened her to get her to say it was

her gun.

 The jury found her guilty.

 The judge rejected her application for probation and

sentenced her to confinement in the penitentiary.




                      INITIAL BRIEF - 5
Pursuant to Tex.R.App.Proc.38.1(e), Appellant presents
this statement of issues presented:


                   ISSUES PRESENTED

 1.   Did Young Woman (Ms. Joanna Gonzalez) prove her

      defense of duress by a preponderance of the

      evidence?




                      INITIAL BRIEF - 6
Pursuant to Tex.R.App.Proc.38.1(f), Appellant provides
the following statement of facts stating concisely
without argument the facts pertinent to the issues of
points presented:


                  STATEMENT OF FACTS

1. Did Young Woman (Ms. Joanna Gonzalez) prove her

defense of duress by a preponderance of the evidence?



 Young woman testified that boyfriend threatened to

kill her if she did not take possession of the firearm

and the drugs and that was why she had possession of

the firearm and the drugs.

     "Q. (BY MR. RODRIGUEZ) Okay. So he told you this
     and he threatened your life; is that correct?
     A.[BY JOANNA GONZALEZ] Yes.
     Q. Did you feel he was capable of actually
     harming you?
     A. He is. He's a gang member from the Texas
     Syndicate.
     Q. As a matter of fact, you told that to the
     officers, correct?
     A. I told that to the officers. I went to the
     D.A.'s office. I've been everywhere to inform
     them that I'm afraid of my life.
     Q. What did you do after that? When he told you
     to do this, what did you do?
     A. Well, I grabbed the stuff and I did what he
     asked me to." (2012-DCR-2626, Court Reporter's
     Record, Volume 7, Page 217).



                      INITIAL BRIEF - 7
Pursuant to Tex. R. App. Proc. 38.1(g), Appellant
provides the following summary of the argument which he
hopes the Court will find to be a succinct and accurate
statement of the argument made in the body of the brief
not merely a repetition of the issues or points
presented for review:


                  SUMMARY OF ARGUMENT

 A rational jury could not have found against the

defendant on the issue of duress, an affirmative

defense.

 Duress is an affirmative defense. On an affirmative

defense, the defendant must introduce evidence and

prove the defense by a preponderance of the evidence.

One party may adopt the evidence of another or of an

opposing party.

 The State’s own Magistrate believed Defendant’s fear

and acted upon that belief and issued a protective

order. The State’s own officer, Officer Camacho,

testified that the victim of domestic violence was

under duress. The very prosecutor who prosecuted Young

Woman, Ms. Gonzalez, had believed Ms. Gonzalez and had

therefore prosecuted the boyfriend for aggravated

assault on Ms. Gonzalez. The boyfriend had admitted

                      INITIAL BRIEF - 8
that he committed the aggravated assault on Ms.

Gonzalez. A state judge had accepted the admission and

had sentenced the boyfriend to the penitentiary. The

defendant said that the boyfriend had threatened her if

she did not say that the gun and the drugs were hers.

 A rational jury could not have found against the

defendant on the issue of duress, an affirmative

defense.

 To find against the defendant on duress, the jury

would have had to have rejected the evidence that the

boyfriend confessed to assaulting Ms. Gonzalez, the

Judge believed the boyfriend’s confession, another

judicial official believed Ms. Gonzalez when she asked

for a protective order and issued a protective order

against the boyfriend, as well as rejecting the

testimony of Officer Camacho that a victim of domestic

violence was under duress.

 Officer Camacho and the two state Judges were

disinterested witnesses. It would be unreasonable to

reject their testimony.

 As anticipatory rebuttal, this is not attempt to

                      INITIAL BRIEF - 9
return to the factual sufficiency review which we

employed from 1997 for twenty years or more; that is a

separate question. It is an assertion that the jury

were simply unreasonable, irrational in rejecting the

evidence from three disinterested state witnesses.

 The Court of Appeals should find the verdict

irrational and acquit appellant.

 Alternatively, it should take the courageous step of

using this case as an example of why we should return

to the use of a review of the factual sufficiency of

the evidence. Counsel may properly argue for a

modification of existing law.




                      INITIAL BRIEF - 10
Pursuant to Tex. R. App. Proc. 38.1(h), Appellant
provides the following argument or the contentions
made, with appropriate citations to the authorities and
to the record:
                        ARGUMENT

  Could a rational jury have found against Young Woman

on the issue of duress?

 Did Young Woman (Ms. Gonzalez) prove duress by a

preponderance of the evidence?

 A rational jury could not have found against the

defendant on the issue of duress, an affirmative

defense.

 To find against the defendant on duress, the jury

would have had to have rejected the evidence that the

boyfriend confessed to assaulting Ms. Gonzalez, the

Judge believed the boyfriend’s confession, another

judicial official believed Ms. Gonzalez when she asked

for a protective order and issued a protective order

against the boyfriend, as well as rejecting the

testimony of Officer Camacho that a victim of domestic

violence was under duress.

 Officer Camacho and the two state Judges were

disinterested witnesses. It would be unreasonable to

                      INITIAL BRIEF - 11
reject their testimony.

 As anticipatory rebuttal, this is not attempt to

return to the factual sufficiency review which we

employed from 1997 for twenty years or more; that is a

separate question. It is an assertion that the jury

were simply unreasonable, irrational in rejecting the

evidence from three disinterested state witnesses.

 The Court of Appeals should find the verdict

irrational and acquit appellant.

 Alternatively, it should take the courageous step of

using this case as an example of why we should return

to the use of a review of the factual sufficiency of

the evidence. Counsel may properly argue for a

modification of existing law.

 Two provisions of the Penal Code are apposite:

     V.T.C.A., Penal Code § 8.05
     § 8.05. Duress Currentness
         (a) 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.
         (b) In a prosecution for an offense that does
         not constitute a felony, it is an affirmative
         defense to prosecution that the actor engaged
         in the proscribed conduct because he was

                      INITIAL BRIEF - 12
compelled to do so by force or threat of
force.
(c) Compulsion within the meaning of this
section exists only if the force or threat of
force would render a person of reasonable
firmness incapable of resisting the pressure.
(d) The defense provided by this section is
unavailable if the actor intentionally,
knowingly, or recklessly placed himself in a
situation in which it was probable that he
would be subjected to compulsion.
(e) It is no defense that a person acted at
the command or persuasion of his spouse,
unless he acted under compulsion that would
establish a defense under this section.
Credits
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1,
eff. Jan. 1, 1974. Amended by Acts 1993, 73rd
Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
Notes of Decisions (92) And V.T.C.A., Penal
Code § 2.04 § 2.04. Affirmative Defense
Currentness
(a) An affirmative defense in this code is so
labeled by the phrase: “It is an affirmative
defense to prosecution . . . .”
(b) The prosecuting attorney is not required
to negate the existence of an affirmative
defense in the accusation charging commission
of the offense.
(c) The issue of the existence of an
affirmative defense is not submitted to the
jury unless evidence is admitted supporting
the defense.
(d) If the issue of the existence of an
affirmative defense is submitted to the jury,
the court shall charge that the defendant
must prove the affirmative defense by a
preponderance of evidence.
Credits
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1,
eff. Jan. 1, 1974. Amended by Acts 1993, 73rd

           INITIAL BRIEF - 13
          Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
          Notes of Decisions (48)

 The trial court correctly submitted an instruction on

duress to the jury. Evidence that defendant killed

victim while acting under fear engendered by third

person's threats that she would kill him if he did not

kill victim was sufficient to support charge to jury on

affirmative defense of duress.       Rice v. State (App. 6

Dist. 1995) 893 S.W.2d 734, rehearing overruled,

petition for discretionary review refused.

 The trial judge was correct to submit the issue to the

jury in Young Woman’s case because she testified that

there was imminent danger of death or serious bodily

injury to her from her boyfriend if she did not “take

the rap” for him; it was his gun, not hers.

Testimony of a defendant that his possession of

contraband was under duress is admissible. Hernandez v.

State,191S.W.3d370(Tex.App.–Waco 2006)

 The evidence showed by a preponderance of the evidence

that the force or threat of force would render a person

of reasonable firmness incapable of resisting the


                      INITIAL BRIEF - 14
pressure. TEX.PEN.CODE 8.05( c)

 Texas courts may consider the opinions of other

common-law   jurisdictions. The Court of Appeals may

rely upon opinions of other jurisdictions. “Numerous

decisions of other appellate courts, including Texas

courts of appeals and courts of other jurisdictions,

are in accord with our holdings....”Lawrence v.

State,240 S.W.3d 912,917 hn12 fn24(Tex.Crim.App.2007)

 The defense of duress is applicable to a charge of

being a felon-in-possession. (Per M.J. Kelly, J., with

one judge concurring.) M.C.L.A. § 750.224f. People v.

Dupree, 284 Mich. App. 89, 771 N.W.2d 470 (2009),

aff'd, 486 Mich. 693, 788 N.W.2d 399 (2010).

Commonwealth v. Bullock, 590 Pa. 480, 913 A.2d 207,

212–13 (2006)

 Texas Courts may rely on decisions of courts of

England interpreting the common law of England, which

the Republic of Texas adopted effective 1841:

  “In 1840 the Legislature [Congress] of Texas enacted

 the following statute:

 “The common law of England, so far as it is not
                       INITIAL BRIEF - 15
 inconsistent with the Constitution and laws of this
 State, shall together with such Constitution and laws,
 be the rule of decision, and shall continue in force
 until altered or repealed by the Legislature.” Article
 1, Rev. Civ. Statutes 1925.***Since the adoption of
 the common law the courts of this state have adhered
 to the decisions of the English courts with as much
 strictness as the courts of the other states who have
 the common law, not by adoption, but by inheritance,
 so to speak.”“ State Bank of Commerce v.
 U.S.Fidelity,28 S.W.2d 184(Tex.Civ.App.–Texarkana
 1930)[internal quotations unchanged]

 The Court may acquit the defendant if the defense of

duress is established by a preponderance of the

evidence. Thus, in Commonwealth v. Reffitt (1912) 149

Ky 300, 148 SW 48, 42 LRA NS 329, defendant, accused of

selling pooled tobacco in violation of a statute,

admitted signing the pooling contract but alleged that

he was compelled to do so under the belief that his

failure or refusal to do so would result in his

suffering bodily harm or property destruction at the

hands of night riders who were then terrorizing the

tobacco-growing belt. The court, affirming acquittal of

defendant, relied entirely upon civil cases and held

that an instruction to the jury defining the term


                      INITIAL BRIEF - 16
"duress" as such violence or threats as were calculated

to operate on a person of ordinary firmness and inspire

a just fear of great injury to person, reputation, or

property was correct, and fairly and fully covered the

law of the case. In so holding, the court commented

that a strong case in favor of defendant had been

presented, since here the fear which induced the making

of the contract was not alone the loss of property, but

of physical punishment as well. The court further

stated that defendant's testimony that he was warned by

several persons that he would be in danger if he did

not pool was competent evidence tending to show not the

truth or falsity of reported outrages committed by the

night riders, but the fact that it was currently

reported that such outrages had been committed, since

the object of all such evidence was to show that

defendant had not voluntarily signed the contract

pooling his tobacco, but had done so only under duress.

 And in Rex v. Crutchley (1831) 5 Car & P 133, 172 Eng

Reprint 909, defendant was held not guilty of the

charge of destroying a threshing machine where it

                      INITIAL BRIEF - 17
appeared that the mob which broke the machine had

compelled defendant as well as others to join them and

strike the machine with a sledge hammer, and that

before defendant had gone very far with the mob, he

decided to run away from them at the first opportunity

and subsequently succeeded in doing so. Crutcher was

part of the “common law of England” adopted by the

Republic of Texas, effective 1841. Although Crutcher is

a trial rather than an appellate opinion, it occupies

the same place in jurisprudence as the trial of John

Peter Zenger, who was acquitted as well.

     “The Verdict
     The jury withdrew to begin deliberations, but
     quickly returned with their verdict. Asked by the
     clerk whether John Peter Zenger was guilty of
     printing and publishing the libels in the
     information, Thomas Hunt, the jury formean
     replied: "Not guilty."

     Zenger wrote that with those two words "there
     were three huzzas in the hall, which was crowded
     with people; and the next day I was discharged
     from my
     imprisonment."http://law2.umkc.edu/faculty/projec
     ts/ftrials/zenger/zengerrecord.html(accessed
     February 2, 2015)




                      INITIAL BRIEF - 18
 It was uncontroverted that the same state which

prosecuted Joanna Gonzalez, who said her boyfriend had

assaulted her and that is why she held the gun and the

drugs, had prosecuted that very boyfriend for that very

assault.

     ”The abrasions, the bruises, the bleeding,
     the complaining of pain, the nervousness, the
     fearfulness, crying, being afraid, everything is in
     here in her report.
     This is in her report. As a matter of fact, what do
     they use this report for? What do they use this
     report for?
     This report was instrumental. Her police work was
     instrumental in one thing: Sending the case to the
     D.A.'s office, this very same D.A.'s office, the
     case against Luis Villarreal for assaulting with a
     deadly    weapon    my    client.”     (2006-DCR-A-
     vol.008,p.25,lines 1-10)[Defense closing]
     ***

     “What happens after that? He gets indicted.
     What does he do? He pleads guilty and is sent to
     prison for that. He is sent to prison. So this case
     is such a contradiction in itself. They're telling
     you, "We believed her wholeheartedly back two or
     three years ago. We believed her. We believed her
     so much that we sent the man to prison for it,"
     okay? You're going to have that evidence, ladies
     and gentlemen. Now they're telling you today,
     "Don't believe her. It didn't happen. It doesn't
     make sense. Her story doesn't make sense." I'm
     going to tell you, ladies and gentlemen, right now,
     I do not understand why we're here today. I do not
     understand why we're hereto day.” (2006-DCR-A-
     vol.008,p.25,line 23-p.26,line 11)[Defense closing]


                      INITIAL BRIEF - 19
        In Crutcher, a fellow under-keeper said that the mob

 had laid hold of him and Crutcher and compelled them to

 go      break   the    machines.          In   Gonzalez,    it    was

 uncontradicted that a magistrate had believed her fear

 and issued an emergency protective order:

        “She told you she was in fear for
        her life. What more do you want? An emergency
        protective order was issued on her behalf. What
        does that mean?
        That means that a magistrate judge, who's been a
        magistrate for over 32 years, issued an emergency
        protective order to protect her from future
        violence.”     (2006-DCR-A-vol.008,p.29)[Defense
        closing]

 Crutcher was a report of a                trial, rather than an

appellate opinion, but it is instructive because in both

Crutcher and Gonzalez, someone other than the defendant

testified about the defendant’s fear. In determining if

the defendant carried her burden to prove the affirmative

defense of duress by a preponderance of the evidence, the

Court    of   Appeals   should     note     that   the   State’s   own

magistrate found her fear to be well founded and acted

accordingly in issuing a protective order.

 There was testimony about the threats:

        ”That is precisely what happened in this
                           INITIAL BRIEF - 20
      case. That is exactly what happened in this case.
      She was beat with this gun, and she was made to
      hold these this contraband and the gun under
      duress.”(2006-DCR-A-vol.008,p.29)[Defense
      closing]

 The state’s own witness, Officer Camacho, testified that

a victim of domestic violence is under duress.

      “I asked him, in your opinion, professional
      opinion, is someone that is the victim of an
      assault under duress? He said, yeah, absolutely. A
      victim of an assault is a victim of duress.”(2006-
      DCR-A-vol.008,p.35)[Defense closing]

 Considering that the State’s own Magistrate believed

Defendant’s fear and acted upon that belief and issued a

protective order, that the State’s own officer, Officer

Camacho, testified that the victim of domestic violence

was   under   duress,   and    considering      that   the     very

prosecutor who prosecuted Young Woman, Ms. Gonzalez, had

believed her and prosecuted the boyfriend for aggravated

assault on her, and that the boyfriend had admitted the

aggravated assault, and that a state judge had accepted

the   admission   and   sentenced       the   boyfriend   to   the

penitentiary, and further considering that the defendant

said that the boyfriend had threatened her if she did not

say that the gun and the drugs were hers, a rational jury

                        INITIAL BRIEF - 21
could not have found against the defendant on the issue

of duress, an affirmative defense.

 When a rational jury could not have reached a particular

verdict upon stated evidence, the verdict is irrational

and it is a violation of federal due process to deprive

one of her liberty predicated upon such an irrational

verdict. Jackson v. Virginia,443 U.S.307(1979)

        The Jackson rationality standard applies to the

review of proof of duress as an affirmative defense. Belt

v. State,485 S.W.2d39,42hn2(Ga.App.1997,no pet.)

        “Belt's     two    enumerations challenging the
        sufficiency of the evidence are reviewed under the
        standard of Jackson v. Virginia, 443 U.S. 307, 319,
        99 S.Ct. 2781, 2789, 61 L.Ed.2d 560***
        This testimony contradicted Belt's claim of duress.
        Under the Jackson v. Virginia standard, a rational
        trier of fact could find appellant guilty of the
        offenses charged beyond Belt's participation and
        conduct as a party to these crimes.”Belt v.
        State,485 S.W.2d39,42hn2(Ga.App.1997,no pet.)

 The affirmative defense of duress negates an element of

t h e        o f f e n s e .                 P e o p l e     v .

Keating,174Cal.Rptr.286(Cal.App.[1st                   Dist.{4th

Div.}]1981,no pet.) The “defense of duress is a factual


                        INITIAL BRIEF - 22
contention, which if proven, tends to negate an element

of    the     charged          crime.”     People    v.

Keating,174Cal.Rptr.286,294fn1(Cal.App.[1st    Dist.{4th

Div.}]1981,no pet.)




                      INITIAL BRIEF - 23
Pursuant to Tex. R. App. Proc. 38.1(I), Appellant
provides a short conclusion that clearly states the
nature of the relief sought:


           CONCLUSION AND REQUEST FOR RELIEF

 The Court of Appeals should conclude that a failure of

proof on the affirmative defense of duress negates an

element of the offense, that a rational jury could not

have found against the defendant on the issue of duress,

an affirmative defense.

 The Court of Appeals should acquit defendant.

                       Respectfully submitted,

                       /s/Larry Warner
                       Larry Warner,
                       Counsel for Appellant
                       3109 Banyan Circle
                       Harlingen,Tx 78550
                       Phone 956 230 0361;
                       Fax 866 408 1968
                       Tex.State Bar# 20871500
                       Usdc,Stdx# 1230
                       office@larrywarner.com
                       website: larrywarner.com
                       Member, Bar of the Supreme Court
                       of the United States(1984)
                       Board Certified, Criminal Law
                       Texas     Board      of    Legal
                       Specialization(1983)




                      INITIAL BRIEF - 24
                  CERTIFICATE OF SERVICE

 I certify that I had delivered a copy of the foregoing

Appellant’s   Initial   Brief    via     fax   to   the   following

counsel of record on this 18th day of February, 2015 to

the District Attorney’s office at 964 E. Harrison Street,

2nd Floor, Brownsville, Texas 78520. Fax: 1-956-544-0869.

                         Respectfully Submitted,
                         February 18, 2015.

                         /s/Larry Warner
                         Larry Warner,
                         Counsel for Appellant


                Certificate Of Compliance

 I certify that this brief complies with TEX.R.APP.9(i)

(2)(B) and was prepared using WordPerfect X3, font in

Courier New 14pt. And contains 3100 words as counted by

the WordCount Tool of this software program.

                         Respectfully Submitted,
                         February 18, 2015.

                         /s/Larry Warner
                         Larry Warner,
                         Counsel for Appellant




                        INITIAL BRIEF - 25
