Comment

In a felony case, duress is an affirmative defense requiring the accused to prove, by a preponderance of the evidence, that he committed the offense “because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another.” Tex. Penal Code §§ 2.04(d), 8.05(a); Edwards v. State, 106 S.W.3d 833, 843 (Tex. App.—Dallas 2003, pet. ref’d). To raise the defense, the evidence must show both compulsion and imminence. Compulsion “exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure,” and imminence exists if the person making the threat intends and is prepared to carry out the threat immediately on the accused’s failure to commit the charged offense. Tex. Penal Code § 8.05(c); Anguish v. State, 991 S.W.2d 883, 886 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (holding threat of future harm cannot be construed as “imminent” under the statute). This affirmative defense is not available to an accused if he “intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion.” Tex. Penal Code § 8.05(d).

In a misdemeanor case, duress is an affirmative defense if the accused proves that he committed the offense because he was compelled to do so by force or threat of force. Tex. Penal Code § 8.05(b). No proof of imminence is required. Compare Tex. Penal Code § 8.05(a) (felony prosecution), with § 8.05(b) (misdemeanor prosecution).

Compulsion. To establish compulsion, a defendant must prove that “the force or threat of force [rendered] a person of reasonable firmness incapable of resisting the pressure.” Tex. Penal Code § 8.05(c); Edwards, 106 S.W.3d at 843. “Reasonable firmness” is evaluated on an objective standard. See United States v. Willis, 38 F.3d 170, 176 (5th Cir. 1994); Wood v. State, 18 S.W.3d 642, 651 n.8 (Tex. Crim. App. 2000); Kessler v. State, 850 S.W.2d 217, 222 (Tex. App.—Fort Worth 1993, no pet.). Therefore, the defendant’s personal proclivities or idiosyncrasies are not relevant to establish compulsion. See Moreno v. State, 605 S.W.3d 475, 476–77 (Tex. Crim. App. 2020) (defense of duress applies only to the type of compulsion that a person of “reasonable firmness” could not resist; a defendant’s PTSD evidence would show merely that he had a greater sensitivity to compulsion than a person of reasonable firmness; a person of reasonable firmness is not someone who has become more susceptible to coercion because of a traumatic event).

Relationship to Necessity Defense. If the evidence before the jury appears to raise both duress and necessity, should the jury be instructed on both?

In Bowen v. State, 162 S.W.3d 226, 229–30 (Tex. Crim. App. 2005), the court rejected the argument that submitting both self-defense and necessity was inappropriate: “[S]elf-defense’s statutorily imposed restrictions do not foreclose necessity’s availability.” See also Gilbert v. State, No. PD-1645-08, 2010 WL 454966 (Tex. Crim. App. Feb. 10, 2010) (not designated for publication) (necessity instruction not supported by evidence; duress instruction submitted); Moreno v. State, 586 S.W.3d 472 (Tex. App.—Dallas 2019), rev’d on other grounds, 605 S.W.3d 475 (jury charged on both duress and necessity).

One pre-Bowen case took the opposite position regarding necessity and duress. In Hermosillo v. State, 903 S.W.2d 60, 68–69 (Tex. App.—Fort Worth 1995, pet. ref’d), the court held that although the facts logically raised both necessity and duress, the defendant was entitled only to a duress instruction. Giving a necessity instruction, it reasoned, would nullify the legislature’s careful placement of the burden of proof on the defendant. Hermosillo, 903 S.W.2d at 69.

Hermosillo relied heavily on Butler v. State, 663 S.W.2d 492, 496 (Tex. App.—Dallas 1983), aff’d on other grounds, 736 S.W.2d 668 (Tex. Crim. App. 1987), finding necessity instructions inappropriate where self-defense instructions were properly given. Butler may have been implicitly disapproved by Bowen. But see Perry v. State, No. 06-07-00113-CR, 2008 WL 3287038, at *2–3 (Tex. App.—Texarkana Aug. 12, 2008) (not designated for publication) (Butler and similar cases rather than Bowen apply when defendant seeks instructions on both necessity and self-defense involving deadly force under section 9.32, because applying Bowen would circumvent then-applicable retreat provision in section 9.32).

Defining “Threat” Required. The U.S. Supreme Court has commented that “[m]odern cases have tended to blur the [common-law] distinction between duress and necessity.” United States v. Bailey, 444 U.S. 394, 410 (1980) (declining to speculate on “precise contours” of whatever defenses of or akin to duress or necessity might be available under federal law in prosecution for escape).

In fact, however, much of any such blurring as might have occurred is due in large part to at least occasional failures to recognize the kind of threat on which a claim of duress must be based. The threat must be one conditioned on the subject’s refusal or failure to commit the offense. Other threats may serve as the basis for a claim of necessity or perhaps self-defense, but not duress.

For example, a prison inmate charged with escape might produce evidence that prison guards beat him and threatened to continue those beatings out of general hostility to the inmate and that he escaped in response to these threats. This defendant has not, however, produced evidence of a threat as that term is used in duress law. Suppose, however, the inmate’s evidence is that a fellow prisoner threatened to kill the inmate unless the inmate accompanied the fellow prisoner in his escape. Now the evidence shows a threat conditioned on the defendant’s refusal to himself commit the crime of escape. In the first situation, the threats might well raise an issue of necessity, but they do not trigger duress law under Penal Code section 8.05.

This thesis is not explicitly recognized in Texas case law. It is, however, consistent with the results and is implicit in at least some judicial decisions and discussions. Johnson v. State, 638 S.W.2d 636 (Tex. App.—El Paso 1982), aff’d, 650 S.W.2d 414 (Tex. Crim. App. 1983), overruled on other grounds by Boget v. State, 74 S.W.3d 23 (Tex. Crim. App. 2002), for example, was a prosecution for carrying a weapon on licensed premises. The evidence tended to show that other persons threatened Johnson with physical harm and he carried the weapon in response to these threats. The court of appeals held that the trial court erred in refusing instructions on necessity and self-defense. The trial court did not err in refusing an instruction on duress:

Johnson, 638 S.W.2d at 637. On discretionary review, the court of criminal appeals held that the nature of the charged offense made self-defense inapplicable. It added that the availability of necessity “is sufficient to protect the interest of the accused” and would avoid “the dire consequences envisioned by the Court of Appeals.” Johnson, 650 S.W.2d at 416.

Further, in Jackson v. State, 50 S.W.3d 579 (Tex. App.—Fort Worth 2001, pet. ref’d), Jackson was charged with intoxication manslaughter. He sought a duress instruction on the basis of evidence that he drove as he did to escape from one Shepard. Jackson believed Shepard was chasing and threatening him. The court found insufficient evidence of the threat required by duress, because the evidence failed to show “that Shepard threatened [Jackson] with imminent death or serious bodily injury if he did not drive [in the manner constituting the charged offense].” Jackson, 50 S.W.3d at 596. Rather, the evidence tended to show that “Shepard was motioning for [Jackson] to pull over.” Jackson, 50 S.W.3d at 596. Accord Smith v. State, No. 06-02-00144, 2003 WL 21665013 (Tex. App.—Texarkana July 17, 2003) (not designated for publication) (evidence in prosecution for evading arrest did not raise duress because it tended to show only that defendant fled because he feared officer was one of several corrupt law enforcement officers who had targeted him, and because the evidence failed to show that the threats were to harm him if he did not flee from the arresting officer).

Johnson and Jackson clearly require that the threat be one to inflict some harm if the defendant does not engage in the conduct constituting the charged offense. In the Johnson court’s terminology, the threat must be made to implement the threatening person’s desire that the defendant engage in that conduct.

The instructions embody the approach of Johnson and Jackson by putting the basic requirement for the defense as demanding proof that the defendant “was compelled to engage in the conduct [by force or a threat of the required severity] if he did not engage in that conduct.”

This formulation, of course, goes beyond the statutory language. Additional specificity is necessary to avoid confusion between duress and other defenses, such as necessity and self-defense. Steps to avoid such confusion are particularly demanded if under Bowen (as discussed above) juries will often be instructed on overlapping defenses.

Unanimity. The instructions require that the jury be unanimous on whether the defendant has proved that duress applies. They do not require unanimity on the specific reason for finding duress inapplicable, that is, what the defendant failed to prove.

Burden of Proof. The defendant has the burden of proving an affirmative defense by a preponderance of the evidence. Tex. Penal Code § 2.04(d).

Confession and Avoidance. To assert the defense of duress, the defendant must admit to committing the proscribed conduct. See Bernal v. State, 647 S.W.2d 699, 706 (Tex. App.—San Antonio 1982, no pet.) (defendant not entitled to duress instruction because he denied having participated in offense); see also Anguish, 991 S.W.2d at 885 (“[A] defendant who claims duress must establish that the threatened harm was conditioned on his committing the charged offense, as opposed to some other offense.”).

So far, it is uncontroverted that the defense of duress also requires some sort of admission to the conduct constituting the crime. In Bernal, a sexual assault defendant was held not entitled to an instruction on duress because he did not offer evidence that he had been threatened with imminent death or serious bodily injury and, “[m]ore importantly, [he] denied having had sexual intercourse with the complainant, and thus did not raise the issue of his having ‘engaged in the proscribed conduct’ because of duress.” Bernal, 647 S.W.2d at 706.

This suggestion in Bernal has been followed in a number of cases. See Gomez v. State, 380 S.W.3d 830, 834 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“Duress is, on its face, a confession-and-avoidance or ‘justification’ type of affirmative defense.”); Rodriguez v. State, 368 S.W.3d 821, 824 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Ramirez v. State, 336 S.W.3d 846, 851 (Tex. App.—Amarillo 2011, pet. ref’d) (“To avail oneself of the affirmative defense of duress, the accused must admit to having engaged in the proscribed conduct.”).

Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010), reaffirming that confession and avoidance applies with regard to the defense of necessity, did not address the doctrine’s application to duress.