                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                §
 THOMAS ALEJANDRO MAGRO-                                       No. 08-08-00027-CR
 MALO,                                          §
                                                                  Appeal from the
                   Appellant,                   §
                                                                416th District Court
 V.                                             §
                                                              of Collin County, Texas
 THE STATE OF TEXAS,                            §
                                                               (TC# 416-80588-07)
                   Appellee.                     §

                                                 §

                                          OPINION

       Thomas Magro-Malo was convicted by a jury of aggravated robbery and sentenced to 21

years’ imprisonment. He raises one issue on appeal in which he asserts he was deprived of his

right to effective assistance of counsel. We affirm.

       On February 12, 2007, Martha Morales was working as a lead teller in the Preston Road

branch of Chase Bank in Plano, Texas. Just before noon, she was approached by a Hispanic

male who pulled out a pistol and told her to give him money. She gave the man over $7,000 in

cash, and he walked out of the bank. Once the man was gone, Ms. Morales reported the robbery

to her manager and notified the police. Officers from the Plano Police Department arrived

moments later.

       Detective Bruce Miller headed the investigation. The bank provided Detective Miller

with numerous still photographs of the robber taken by security cameras inside the main lobby.

Detective Miller released those photos to the media in an attempt to identify the suspect. The
following day, an individual contacted the police department, and identified the suspect as

Thomas Magro-Malo. When the detective compared the bank photos to a driver’s license photo

under the same name, he believed it was the same man. Ms. Morales also identified Appellant as

the robber when the detective presented her with a photo lineup. Appellant was located and

arrested days later.

        During an interview with Detective Miller, Appellant admitted to robbing the Chase Bank

on February 12. He also admitted to another similar bank robbery in Addison, Texas on

February 10. Appellant also told police that he had a partner who was also involved in both

crimes. However, Appellant refused to identify the other man because he was afraid his partner

would hurt him. During the Addison bank robbery, Appellant’s partner had gotten angry when

Appellant took “too long” in the bank, and took “too many chances” trying to increase the

amount they stole. At some point, the other man threatened Appellant with a gun, and told

Appellant, “If I get caught , its not going to be good for you.” Appellant did tell the police that

he had known this other man for approximately six months before the robberies. On prior

occasions, Appellant had refused to take part in the other man’s criminal schemes, such as

smuggling illegal immigrants and dealing drugs.

        Appellant was charged with aggravated robbery for the February 12, Plano bank robbery.

The jury convicted Appellant and sentenced him to twenty-one years’ imprisonment. On appeal,

Appellant raises a single issue in which he argues that he was denied his constitutional right to

effective assistance of counsel by his trial attorney’s failure to request a jury instruction on the

affirmative defense of duress.

        We review claims of ineffective assistance of counsel under a two-pronged test. First, an


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appellant must establish counsel’s performance fell below an objective standard of

reasonableness under prevailing professional norms. Strickland v. Washington, 466 U.S. 668,

693-94, 104 S.Ct. 2052, 2067-68, 80 L.Ed.2d 674 (1984); Mallet v. State, 65 S.W.3d 59, 62-3

(Tex.Crim.App. 2001). Second, the appellant must establish that counsel’s deficient

performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Jackson v.

State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Prejudice is established by a showing that

there is a reasonable probability that but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2068; Mallet, 65

S.W.3d at 62-3. A reasonable probability is a probability sufficient to undermine confidence in

the outcome. Mallet, 65 S.W.3d at 63. Claims of ineffective assistance must be proved by a

preponderance of the evidence. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002).

       When we review a claim of ineffective assistance, we must indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable, professional assistance, and the

appellant must overcome the presumption that the challenged conduct can be considered sound

trial strategy. Jackson, 877 S.W.3d at 771. The reviewing court will not conclude the challenged

conduct constituted ineffective assistance unless the conduct was so outrageous that no

competent attorney would have engaged in it. See Thompson v. State, 9 S.W.3d 808, 814

(Tex.Crim.App. 1999). Allegations of ineffectiveness must be firmly founded in the record.

Mallet, 65 S.W.3d at 64-5. In sum, an appellant challenging trial counsel’s performance faces a

difficult burden and a substantial risk of failure. See Thompson, 9 S.W.3d at 813.

       Appellant argues he was denied effective assistance of counsel because his trial attorney

failed to request a jury instruction on the affirmative defense of duress. He asserts that counsel’s


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decision to forgo the defense is not entitled to the presumption of reasonableness because it was

“so outrageous that no competent attorney would have engaged in it.”

       A defendant it entitled to an instruction of every defensive issue raised by the evidence,

regardless of the strength of that evidence. Hayes v. State, 728 S.W.2d 804, 807 (Tex.Crim.App.

1987). The duress defense is applicable to a case in which the actions “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.” TEX .PENAL CODE ANN . § 8.05(a)(Vernon 2003). “Imminent” means

something that is impending, not pending; something on the point of happening, not about to

happen. Schier v. State, 60 S.W.3d 340, 343 (Tex.App.--Houston [14th Dist.] 2001, pet. ref’d).

Harm is imminent when there is an emergency situation and it is immediately necessary to avoid

that harm; when a split-second decision is required without time to consider the law. Id. A

person is compelled to action within the meaning of the duress defense only if confronted by

force or threat of force that would render a person of reasonable firmness incapable of resisting

the pressure. TEX .PENAL CODE ANN . § 8.05(c).

       The record in this case demonstrates that counsel made a conscious decision to pursue a

“lack of intent” defense, instead of a duress defense. The following exchange took place during

the jury’s deliberations:

       The Court:      In addition, it appears from the argument, as I was
                       observing you, you made a tactical decision not to request
                       the defensive charge of duress, but simply decided to argue
                       intent. Is that your tactical decision?

       Defense Counsel:       Yes sir.

       The record does not support Appellant’s conclusion that counsel’s decision not to pursue



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a duress defense was outside the zone of reasonable assistance. Based on the record, Appellant’s

attorney could have reasonably determined that the facts of the case did not raise a duress

defense. According to the lead detective in the Plano robbery, Appellant’s partner offered

Appellant a part in several other criminal schemes before Appellant agreed to take part in the

robberies. The detective also testified that Appellant’s partner threatened him, not in order to

coerce Appellant to commit the crime, but in order to keep Appellant from talking to the

authorities, and to prevent Appellant from telling the police who his partner was. Appellant told

the detective that of the $7,500 the two men took from the second robbery, Appellant kept

$4,500, while his partner only received $3,000. The detective agreed that Appellant expressed

concerns about his partner retaliating against him and his family if he were to refuse to take part

in, or continue the robberies. However, the detective was not able to state whether these

concerns motivated Appellant to participate in the crimes. During his interview with the

detective, Appellant was not clear whether he had these thoughts before, during, or after the

robberies.

       In these circumstances, it was reasonable for Appellant’s attorney to conclude that

Appellant’s actions were not motivated by “imminent” harm as defined by the statute.1 Given

the lack of evidence that Appellant committed these crimes under a threat of imminent harm,

counsel made the decision to simply hold the State to its burden of proof on the elements of the

offense. Whether or not, in hindsight, counsel’s decision was a desirable trial strategy is not an

appropriate inquiry. See Smith v. State, 968 S.W.2d 490, 492 (Tex.App.--Texarkana 1998, no


       1
          It was also reasonable for Appellant’s attorney to conclude that a duress defense was not
raised by the evidence, and the instruction could be properly denied by the trial court. See Young
v. State, 991 S.W.2d 835, 839 (Tex.Crim.App. 1999).

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pet.), citing Blott v. State, 588 S.W.2d 588, 592 (Tex.Crim.App. 1979). Because there is a

reasonable explanation for counsel’s decision to forego a jury instruction on duress, Appellant

has failed to establish the conduct fell below an objective standard of reasonableness. Issue One

is overruled.

       We affirm the trial court’s judgment.



June 17, 2009
                                               DAVID WELLINGTON CHEW, Chief Justice

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

(Do Not Publish)




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