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
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
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.
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?
INITIAL BRIEF - 11 reject their testimony.
return to the factual sufficiency review which we
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.
INITIAL BRIEF - 25