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. Unlike the provisions for the defense of duress in a felony case, Texas Penal Code section 8.05(b) provides for the affirmative defense in a misdemeanor case to be based on either “force” or a “threat of force.” Compulsion “exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.” Tex. Penal Code § 8.05(c). 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 subject to compulsion. Tex. Penal Code § 8.05(d).

Conceptually, expanding the affirmative defense to “force” does not make sense, particularly since this is not provided for in the felony defense. If the evidence shows that a third person literally compelled the defendant to engage in the prescribed conduct “by force,” that conduct would not be voluntary within the meaning of Penal Code section 6.01(a). Evidence of this would trigger the state’s obligation to prove that the conduct was voluntary, and this would seem to supersede any possible question of duress on which the defendant has the burden of persuasion.

Although section 8.05(b) uses the term force, it most likely means harm, and more specifically harm less serious than the death or serious bodily injury described in section 8.05(a). Of course, the legislature could easily have used terms such as harm, injury, or bodily injury, but did not.

Apparently, force could possibly include effort applied to a person or even to property, without regard to whether that force caused any pain, damage, disruption, or any adverse impact whatever.

The instruction follows the statutory language, even though it seems to make little sense.

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.