Joseph Demetrius Farris v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 15, 2023
• Docket: 10-21-00204-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-21-00203-CR No. 10-21-00204-CR No. 10-21-00205-CR No. 10-21-00206-CR

JOSEPH DEMETRIUS FARRIS, Appellant v.

THE STATE OF TEXAS, Appellee

From the 12th District Court Madison County, Texas Trial Court No. 18-13064, 18-13066, 18-13068, and 18-13070

MEMORANDUM OPINION

Pursuant to a plea agreement, Appellant Joseph Demetrius Farris pleaded guilty

to two counts of possession of child pornography and two counts of aggravated sexual

assault of an eight-year-old child. The trial court assessed Farris’s punishment at ten

years in prison on the possession of child pornography counts and life in prison on the aggravated sexual assault of a child counts. Farris appeals from the trial court’s denial

of his pretrial motion to suppress and from the trial court’s grant of the State’s pretrial

motion to exclude testimony of the affirmative defense of duress. Farris raises two

issues on appeal.

Issue One

In his first issue Farris contends:

Sufficient evidence existed for Farris to present evidence on the justification defense of duress and the Trial Court abused its discretion in preventing Farris from presenting that justification defense to a jury because more than a scintilla of evidence existed to support the confession-and-avoidance justification for Farris’ conduct.

AUTHORITY

“Under the duress statute, ‘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.’” Moreno v. State, 605

S.W.3d 475, 477 (Tex. Crim. App. 2020) (quoting TEX. PENAL CODE ANN. § 8.05(a)). A

defendant is entitled to an instruction on a defensive issue raised by the evidence even

if the evidence is weak, contradicted, or of suspect credibility. See Maciel v. State, 631

S.W.3d 720, 723 (Tex. Crim. App. 2021). A defense may be raised by evidence “from

any source, on each element of the defense that, if believed by the jury, would support a

rational inference that that element is true.” Shaw v. State, 243 S.W.3d 647, 657–58 (Tex.

Crim. App. 2007). “Even a minimum quantity of evidence is sufficient to raise a defense

Farris v. State Page 2 as long as the evidence would support a rational jury finding as to the defense.” Rogers

v. State, ___ S.W.3d ___, No. PD-0242-19, 2022 WL 14692354, at *3 (Tex. Crim. App. Oct.

26, 2022) (citing Shaw, 243 S.W.3d at 657). We do not apply the usual rule of appellate

deference to trial court rulings when reviewing a trial court's decision to deny a

requested defensive instruction; rather, we view the evidence in the light most

favorable to the defendant's requested submission. Bufkin v. State, 207 S.W.3d 779, 782

(Tex. Crim. App. 2006). “Whether a defense is supported by the evidence is a

sufficiency question reviewable on appeal as a question of law.” Shaw, 243 S.W.3d at

658.

Compulsion in the context of the affirmative defense of duress “exists only if the

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

resisting the pressure.” Moreno, 605 S.W.3d at 477 (quoting TEX. PENAL CODE ANN. §

8.05(c)). In the context of duress, the definition of compulsion creates an objective

standard, and we will look to the effect the pressure would have on “a person of

reasonable firmness.” Id. “In order to support submission of an affirmative defense

instruction of duress based upon compulsion, there must be some evidence of a specific,

objective threat of death or serious bodily harm.” Edwards v. State, 106 S.W.3d 833, 843

(Tex. App.—Dallas 2003, pet. ref’d).

When evaluating the sufficiency of evidence for a duress defense an imminent

threat is a present threat of harm. Cormier v. State, 540 S.W.3d 185, 190–91 (Tex. App.—

Farris v. State Page 3 Houston [1st Dist.] 2017, pet. ref’d) (citing Anguish v. State, 991 S.W.2d 883, 886 (Tex.

App.—Houston [1st Dist.] 1999, pet. ref'd)). Furthermore, immediacy in the context of

duress has two components: (1) the person making the threat must intend and be

prepared to carry out the threat immediately, and (2) carrying out the threat must be

predicated upon the threatened person's failure to commit the charged offense

immediately. Ramirez v. State, 336 S.W.3d 846, 851 (Tex. App.—Amarillo 2011, pet.

ref’d). If the trial court determines that the threat the defendant contends compelled his

commission of the proscribed conduct was not imminent, the trial court properly

excludes evidence of the threat. Anguish, 991 S.W.2d at 886 (citing Kessler v. State, 850

S.W.2d 217, 222 (Tex. App.—Fort Worth 1993, no pet.)).

DISCUSSION

At a pre-trial hearing on the State’s motion to exclude testimony of the

affirmative defense of duress, Farris was the only witness called to testify. During the

hearing, Farris conceded he engaged in the conduct of which he was accused and

asserted that he was compelled to commit the conduct because of a threat of imminent

death or serious bodily injury to himself or another.

Farris’ testimony described how two men, one he did not know and the other he

came to know because he was the attorney for Farris’ landlord, directed him to make

pornographic video recordings of the victim and later the victim and himself. Farris

detailed that he was surveilled, followed, pressured, and led to believe bad things

Farris v. State Page 4 would happen to him on almost a daily basis by the men if he did not do as instructed.

Farris’ testimony reflected that he was subjected to a pervasive campaign of threats and

pressure that compelled him to commit the conduct even though at the time Farris was

engaging in the conduct, neither of the men were making threats nor even present.

Farris said the first threat occurred when both men came to Farris’ house one

evening. Farris testified that the attorney instructed Farris to do “exactly what the F I’m

told and I’d be fine” while the man he did not know put a gun to his forehead. Farris

said the encounter ended with him begging for his life, “more or less.” About an hour

after the two men left, the unknown man with the gun returned and instructed Farris to

film the victim by herself because that is what the attorney wanted. The unknown man

told Farris that he better do what he was told, that it would be wise to do so, and that

the unknown man knew of other incidents with other families where they didn't do

what they were told, and horrible things happened to them. Farris testified to other

encounters with the men in which he was told “don’t end up dead,” and “the last time

this had happened, the child had ended up in a paper bag.”

Farris testified he started making video recordings of the victim and ultimately

made video recordings of the victim and himself because of the threats. Farris indicated

that the video recordings were made between the months of August 2017 and April

2018.

Farris v. State Page 5 On cross-examination Farris agreed that while he was making the video

recordings of the sexual acts there was no one present compelling, forcing or

threatening him to do it. Farris added that if he had not engaged in the conduct, it

would have resulted in something far worse happening to them. We recognize that

section 8.05 of the Penal Code does not require actual presence of an individual

compelling proscribed behavior. See Duson v. State, 559 S.W.2d 807, 809 (Tex. Crim.

App. 1977). However, immediacy of the threat of death or serious bodily injury

requires that the person making the threat must intend and be prepared to carry out the

threat immediately, and carrying out the threat must be predicated upon the threatened

person's failure to commit the charged offense immediately. Ramirez, 336 S.W.3d at 851.

There is no evidence that the threats described by Farris were immediate. “A threat of

harm at some indefinite time in the future is insufficient to satisfy the requirement of

imminence.” Kelso v. State, 562 S.W.3d 120, 132 (Tex. App.—Texarkana 2018, pet. ref’d)

(citing Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989); Ramirez, 336 S.W.3d

at 851–52; Anguish, 991 S.W.2d at 886). The threats made to Farris were of future harm

only. Threatening to kill or cause serious bodily injury to Farris at some time in the

future if he refused to produce child pornography or engage in conduct that constituted

aggravated sexual assault of a child is not sufficient to show a threat of serious bodily

injury or death to be inflicted imminently. See Devine, 786 S.W.2d at 270–71.

Farris v. State Page 6 Farris contends in his supplemental brief, in what is labeled a supplemental

issue, that the trial court’s findings fail to harmonize the undefined language “imminent

threat” with interpretations of the same language under the terroristic threat and

assault statutes. This amounts to only an additional argument that the trial court

abused its discretion in preventing Farris from presenting his duress defense to the jury.

Farris argues that the statutory term “imminent threat” in Penal Code section 8.05(a)

should be construed consistently with other Penal Code sections using the same term.

As examples, Farris refers to the offenses of Terroristic Threat, Assault and Aggravated

Assault. Farris further argues that there was evidence to support a finding he was

under imminent threat if the definition of “imminent threat” utilized elsewhere in the

Penal Code is used. Even if we were to apply the construction of “imminent threat”

used in other Penal Code sections, we conclude the trial court properly found that

Farris failed to provide evidence that Farris was under imminent threat. 1

Viewing the evidence in the light most favorable to Farris' requested submission,

we conclude the trial court properly excluded the evidence offered in support of Farris’

affirmative defense of duress.

We overrule this issue.

Issue Two

In his second issue Farris contends:

1We express no opinion regarding whether application of the construction of “imminent threat” used in other Penal Code sections is proper under section 8.05(a) of the Penal Code.

Farris v. State Page 7 The private search of Farris’ SD drive by Melvin Garrison violated Article 38.23 of the Texas Code of Criminal Procedure – Farris did not intentionally abandon the drive, had privacy and property rights in it and Garrison violated Section 33.02 of the Penal Code by accessing the SD drive.

“We review a trial court's ruling on a motion to suppress under a bifurcated

standard of review.” Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).

“[W]e afford almost total deference to a trial judge's determination of historical facts.”

Id. Because the trial judge is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony, he is entitled to believe or

disbelieve all or part of a witness's testimony. Id. If “findings of fact are not entered by

the trial court, we must view the evidence in the light most favorable to the trial court's

ruling and assume the trial court made implicit findings of fact that support its ruling as

long as those findings are supported by the record.” Id. (internal quotes omitted).

“[We] review a trial court's application of the law of search and seizure to the

facts de novo. We will sustain the trial court's ruling if that ruling is reasonably

supported by the record and is correct on any theory of law applicable to the case.” Id.

at 447–48 (internal quotes omitted).

“If a defendant challenges the admissibility of evidence under article 38.23(a) on

the ground it was wrongfully obtained by a private person in a private capacity, the

defendant must establish that the private person obtained that evidence in violation of Farris v. State Page 8 law.” Baird v. State, 379 S.W.3d 353, 357 (Tex. App.—Waco 2012), aff'd, 398 S.W.3d 220

(Tex. Crim. App. 2013) (citing Mayfield v. State, 124 S.W.3d 377, 378 (Tex. App.—Dallas

2003, pet. ref'd)). Initially, the burden of proof is on the defendant to raise the

exclusionary issue by producing evidence of a statutory violation. Pham v. State, 175

S.W.3d 767, 772 (Tex. Crim. App. 2005). Then the burden shifts to the State to prove

compliance. Id. However, “the burden of persuasion is properly and permanently

placed upon the shoulders of the moving party. When a criminal defendant claims the

right to protection under an exclusionary rule of evidence, it is his task to prove his

case.” Id. at 773 (quoting Mattei v. State, 455 S.W.2d 761, 766 (Tex. Crim. App. 1970)).

Farris testified that he kept his SD cards in a case inside his computer bag and

that the only way to access the SD cards would have been for someone to enter his

computer bag without his knowledge. Farris acknowledged that he brought his

computer bag to the residence of his friend, Melvin. Farris stated he never access his SD

cards while at Melvin’s residence, and he did not leave the computer bag at the

residence. Farris added the only way to access his SD cards was to “enter his computer

bag, without my knowledge, and take the small case of SD cards.” Farris stated that he

believed Melvin’s girlfriend entered his computer bag “to take the SD card.” Farris

acknowledged that the encryption program on the SD card was not activated and that

no password was required to view the contents of the SD card.

Farris v. State Page 9 Melvin testified that he found an SD card under his desk at his residence and

that when he saw it, “I didn’t - - you know, it’s just an SD card, I don’t know what is on

it.” Melvin said, “I put it in and - - to open it and see what it was because I - - you

know, I figured maybe it was mine, you know, SD card under my desk.” Melvin then

put the SD card in his computer “to see what it was and I discovered the videos.”

Melvin added he saw the “contents just for a moment, that was enough.” After viewing

the contents, Melvin then decided to contact his father for advice. Melvin indicated the

SD card did not require a password to access the content. Melvin also testified that

Farris had been at his home in the week or two prior to him finding the SD card.

Melvin did not remember Farris having a bag at his residence on the occasion. When

asked if Farris had anything the SD card would have been carried in, Melvin stated that

he thought the SD card came out of Farris’ phone because he remembered Farris taking

the SIM card out of the phone and that the SD card is in the same location. Melvin

added that he guessed Farris dropped the SD card and that they did not notice it.

Article 38.23(a) of the Code of Criminal Procedure does not apply if no violation

of law occurred in obtaining the evidence at issue. Thomas v. State, 586 S.W.3d 413, 419

(Tex. App.—Houston [14th Dist.] 2017, pet. ref’d). Here, section 33.02 of the Penal

Code, entitled “Breach of Computer Security,” is the only law Farris contends Melvin

violated. See TEX. PENAL CODE ANN. § 33.02. Farris must, therefore, initially establish

that Melvin obtained the evidence at issue in violation of section 33.02. Thomas, 586

Farris v. State Page 10 S.W.3d at 419. We will look to the elements of section 33.02 in order to determine

whether Farris produced evidence to establish that Melvin obtained the evidence in

violation of that section.

Section 33.02 provides that “[a] person commits an offense if the person

knowingly accesses a computer, computer network, or computer system without the

effective consent of the owner.” TEX. PENAL CODE ANN. § 33.02(a). “[T]he ‘knowing’

mental state required by section 33.02 applies to both the ‘access’ and ‘effective consent’

elements of the offense.” Thomas, 586 S.W.3d at 421 (citing Muhammed v. State, 331

S.W.3d 187, 192 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd)). What makes

accessing a computer unlawful under section 33.02(a) is that when the access occurs, the

circumstances exist that the actor knows it is without the owner's consent. Thomas, 586

S.W.3d at 421. “[T]he culpable mental state of “knowingly” must apply to those

surrounding circumstances.” Id. at 421 n.10. Thus, the evidence required to prove a

violation of section 33.02(a) is that the actor “knowingly accessed a computer, computer

network, or computer system, knowing that this act was without the effective consent of

the owner.” Muhammed, 331 S.W.3d at 192.

Here the evidence produced at the hearing reveals that Melvin accessed the SD

card to determine its contents believing it was potentially his SD card after he found the

SD card under his desk. There was no evidence that Melvin accessed the SD card

knowing he did not have the consent of the owner. Farris’ statement that he believed

Farris v. State Page 11 that Melvin’s girlfriend took the SD card without his consent did not implicate Melvin

as part of a scheme to access Farris’ SD card without consent.

Based on the record before us, we cannot conclude that the trial court erred in

denying Farris’ motion to suppress on article 38.23 grounds because Farris failed to

prove Melvin violated section 33.02 of the Penal Code. We therefore overrule Farris’

second issue.

Conclusion

We affirm the judgment of the trial court.

MATT JOHNSON Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed February 15, 2023 Do not publish [CR25]

Farris v. State Page 12