Comment

The defense of duress is provided for in Tex. Penal Code § 8.05.

Defining “Preponderance of the Evidence.” The Penal Code does not define “preponderance of the evidence.” While terms left undefined by the legislature should generally remain so in the charge, there is an exception for terms that have a known and established legal meaning. See Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. App. 2000) (inappropriate for jurors to apply own definitions of “arrest”). The court of criminal appeals has not determined whether “preponderance of the evidence” qualifies under this exception, but it long ago upheld an insanity instruction defining preponderance as “the greater weight of credible testimony.” McGee v. State, 238 S.W.2d 707, 716 (Tex. Crim. App. 1950) (op. on reh’g). Unlike the more common “reasonable doubt” standard—which it is better not to attempt to define, Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000)—further explanation of the term “preponderance” may be of appreciable help to jurors. See Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008) (per curiam) (finding no error in judge’s explanations to counter venire’s confusion between clear-and-convincing and preponderance standards). The “greater weight” or “greater weight and degree” definitions have long been used in both civil and criminal jury charges. See, e.g., Harrell v. State, 65 S.W.3d 768, 772 n.2 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (voluntary release in safe place of kidnapping victim); Watts v. State, 680 S.W.2d 667, 672 (Tex. App.—Fort Worth 1984, pet. ref’d) (defense of insanity); Benton v. State, 107 S.W. 837, 838 (Tex. Crim. App. 1908) (jury charge on former jeopardy). That definition is part of the instruction on preponderance of the evidence required in civil cases. Tex. R. Civ. P. 226a (defining preponderance as “the greater weight of credible evidence presented in this case” and explaining that a fact must be “more likely true than not true” to be proved by a preponderance). The Committee thus concluded it would not be error to define the term for jurors and may frequently be helpful.

Force or Threat of Force. Tex. Penal Code § 8.05(c) provides that “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.” Unlike in a misdemeanor case, however, the affirmative defense of duress in a felony applies only where there is a “threat of force,” not actual force. Compare Tex. Penal Code § 8.05(a) with § 8.05(b). Consequently, the instruction on section 8.05(c) is tailored to the applicable statutory language.

Imminent Threat Defined. “ ‘Imminent’ means something that is impending, not pending; something that is 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) (quoting Smith v. State, 874 S.W.2d 269, 272–73 (Tex. App.—Houston [14th Dist.] 1994, 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. Schier, 60 S.W.3d at 343 (citing Smith, 874 S.W.2d at 273).

“Imminent threat” exists if (1) the person making the threat intended and was prepared to carry out the threat immediately and (2) carrying out the threat was predicated on the threatened person’s failure to commit the charged offense immediately. Devine v. State, 786 S.W.2d 268, 270–71 (Tex. Crim. App. 1989) (threats of future harm only were not sufficient threats of imminent bodily injury or death to uphold conviction for robbery); Anguish v. State, 991 S.W.2d 883, 886 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (alleged threat that appellant rob a bank or he and his family would be killed made four days before appellant committed robbery was not imminent); Cameron v. State, 925 S.W.2d 246, 250 (Tex. App.—El Paso 1995, no pet.) (appellant’s general fear of coactor’s temper did not constitute any evidence of specific, objective threat sufficient to warrant duressinstruction); Bernal v. State, 647 S.W.2d 699, 706 (Tex. App.—San Antonio 1982, no pet.) (defendant’s testimony that he feared codefendant “might get violent” held insufficient to support duress instruction). See also Kelso v. State, 562 S.W.3d 120, 132 (Tex. App.—Texarkana 2018, pet. ref’d) (generalized fear of death or serious bodily injury based on abusive spouse’s past reactions when defendant refused his requests was not sufficiently imminent to warrant duress instruction in indecency trial).

In Cormier v. State, 540 S.W.3d 185, 190 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d), the defense argued that a definition of “imminent” was necessary because it had acquired a technical legal meaning in the context of duress. The court of appeals disagreed, pointing to the Penal Code’s widespread use of “imminent” in other statutes. In holding it was not error to refuse to define “imminent,” the court also cited the lack of a statutory definition and concluded that “imminent” had a common meaning. Cormier, 540 S.W.3d at 191–92.

Non-defense of Spousal Persuasion in Section 8.05(e). Section 8.05(e) provides, “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.” The Committee has included this same statutory language immediately before the burden of proof unit of the instruction—to be included where raised by the evidence. Some members of the Committee believed this statutory language was confusing. It most likely signals a departure from a common-law presumption that a wife who commits an offense in her husband’s presence has acted under duress from her husband. See, e.g., Harris v. State, 241 S.W. 175, 177 (Tex. Crim. App. 1922) (op. on orig. submission). By agreement of the parties, the following language may be substituted:

Alternate Language for Affirmative Defenses. The Committee concluded that when an affirmative defense is the only defense raised in a trial, jurors are not usually aided by use of the technical term. It typically only has meaning to jurors when used in comparison to a non-affirmative defense. As a result, trial judges have the option of dropping the word affirmative from the instruction. Where any party prefers the technical term, or when both a defense and an affirmative defense are submitted in the same trial (such as with necessity and duress), the bracketed “affirmative defense” language should be used, as well as the first selection under the burden of proof unit of the instruction.