NO. 07-09-0001-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 22, 2009 ______________________________
TAMMY L. TIMMS,
Appellant
v.
THE STATE OF TEXAS,
Appellee _________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2007-417,790; HON. BRAD UNDERWOOD, PRESIDING _______________________________
Memorandum Opinion _______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Tammy L. Timms was convicted as a party to aggravated robbery. She seeks
reversal of that conviction by contending the trial court erred in 1) refusing to include a
jury instruction on the affirmative defense of duress, 2) excluding the testimony of her
expert witness who would have testified with respect to the defense of duress, and 3)
refusing to include an instruction on the lesser-included offense of theft. We affirm the
judgment. Background
Appellant and her husband Paul Timms were drug dealers. Paul had received a
counterfeit $20 bill from the victim Tommy Yugovich who also bought and sold drugs.
When Paul attempted to spend the counterfeit bill, he was arrested. He sought to have
appellant retain an attorney for him by obtaining money from Yugovich, whom Paul
blamed for his incarceration. Through numerous telephone calls, the State proved that
Paul sought to have appellant and Donnie Green steal drugs and take revenge upon
Yugovich for his refusal to give money to appellant for Paul’s attorney.
On the night of March 25, 2007, appellant arranged for Yugovich to sell her some
methamphetamine at the home of Jerry Don Castle. Yugovich arrived with his
girlfriend Michelle Pierce. While Pierce and Castle were playing pool, Yugovich and
appellant were in another room. Appellant excused herself by representing that she
had to go to the bathroom. Then, Pierce heard a noise and Yugovich called out in a
distressed voice. When she responded, she observed a man later identified as Green
standing before Yugovich while Yugovich bled from his head. Pierce then saw Green
hit Yugovich in the head with a metal t-post. Thereafter, she too was struck in the head
by Green.
Green gathered the drugs present, retrieved money found lying on the floor, and
left. Appellant then exited the bathroom and left the residence. However, she forgot
to take her wallet, which was later found by police at the crime scene. Yugovich’s skull
was fractured and he continued to suffer brain damage up to the time of trial.
2 Issues 1 and 2 - Defense of Duress
Appellant argues that the trial court erred in failing to permit her expert witness to
testify that she acted under duress because she was a battered woman and afraid of
Paul. She also contends the trial court erred in not instructing the jury on her defense
of duress. We overrule the issues.
To avail oneself of the defense of duress, the actor must have “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.” TEX. PENAL CODE ANN. §8.05(a) (Vernon
2003). Compulsion exists “only if the force or threat of force would render a person of
reasonable firmness incapable of resisting the pressure.” Id. §8.05(c). Moreover, one
asserting an affirmative defense such as duress must admit to having engaged in the
proscribed conduct. Hubbard v. State, 133 S.W.3d 797, 799 (Tex. App.–Texarkana
2004, pet. ref’d) (involving the defense of necessity); Gonzalez v. State, No.
05-08-0187-CR, 2009 Tex. App. LEXIS 5762 at *4 (Tex. App.–Dallas July 28, 2009, no
pet.) (not designated for publication) (involving duress); see Alford v. State, 866 S.W.2d
619, 624 n.9 (Tex. Crim. App. 1993) (noting that the rationale of duress is that even
though the accused has done the act required and had the mental state required, the
conduct is justified because he has avoided harm of a greater magnitude); see also
Bernal v. State, 647 S.W.2d 699, 706 (Tex. App.–San Antonio 1982, no pet.) (holding
that the defendant was not entitled to an instruction on duress when he denied having
engaged in sexual intercourse with the complainant); Hawkins v. State, No.
14-07-0381-CR, 2008 Tex. App. LEXIS 7214 at *8-9 (Tex. App.–Houston [14th Dist.]
3 September 25, 2008, no pet.) (not designated for publication) (holding the defendant
was not entitled to an instruction on duress when his theory at trial was that he was
misled by his passenger into driving him to the scene of the crime and was not aware of
the robbery until after it occurred); Riley v. State, No. 10-07-0060-CR, 2008 Tex. App.
LEXIS 2357 at *14 n.3 (Tex. App.–Waco April 2, 2008, no pet.) (not designated for
publication) (stating that when the defendant denied sexually assaulting the victim with a
pipe but claimed only to have slapped the victim, she was not entitled to an instruction
on duress).
At trial, appellant attempted to show that she was not guilty of the offense
because she did not know what was going to happen and/or she only participated in a
drug transaction. At the same time, she argued to the trial court that because the
evidence was sufficient to go to the jury with respect to her guilt as a party or under a
conspiracy theory, she was entitled to an instruction on duress.1 Yet, she never
admitted to the accuracy of the conduct underlying the charge. And, contrary to her
suggestion on appeal, failing to deny the commission of the acts does not equal
admitting them. If this were not so, then the State’s burden in many criminal
prosecutions would be greatly reduced when the accused opts to remain silent.
Appellant’s alternative suggestion that evidence proffered by the State illustrating
her involvement in the planning of the robbery was tantamount to an admission of the
charged offense is also inaccurate. Again, the accused is obligated to admit the
conduct underlying the offense. Forcing the State to carry its burden of proof is not
1 Appellant did not testify. However, she presented evidence through other witnesses that Paul attempted to control her life and that she had been beaten by him in the past.
4 such an admission. And, the evidence alluded to by appellant which illustrated her
complicity in the crime was nothing more than effort by the State to fulfill its burden. It
was not an admission by appellant that she engaged in the underlying conduct.
Indeed, to hold otherwise would be illogical. That the prosecutor tendered evidence of
guilt does not permit one to rationally deduce that the defendant admits to the veracity
of the evidence tendered. The latter does not follow from the former.
Appellant also contends she has the right to rely upon alternative conflicting
theories. While this may generally be true, it does not relieve her from satisfying the
conditions prerequisite to establishing duress, and one such condition concerned her
admission to the underlying criminal conduct.
So, the trial court did not err in refusing to submit the affirmative defense of
duress. Nor did it err in excluding the testimony of her expert on that subject.
Because appellant failed to admit to performing the deeds upon which the robbery was
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NO. 07-09-0001-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 22, 2009 ______________________________
TAMMY L. TIMMS,
Appellant
v.
THE STATE OF TEXAS,
Appellee _________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2007-417,790; HON. BRAD UNDERWOOD, PRESIDING _______________________________
Memorandum Opinion _______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Tammy L. Timms was convicted as a party to aggravated robbery. She seeks
reversal of that conviction by contending the trial court erred in 1) refusing to include a
jury instruction on the affirmative defense of duress, 2) excluding the testimony of her
expert witness who would have testified with respect to the defense of duress, and 3)
refusing to include an instruction on the lesser-included offense of theft. We affirm the
judgment. Background
Appellant and her husband Paul Timms were drug dealers. Paul had received a
counterfeit $20 bill from the victim Tommy Yugovich who also bought and sold drugs.
When Paul attempted to spend the counterfeit bill, he was arrested. He sought to have
appellant retain an attorney for him by obtaining money from Yugovich, whom Paul
blamed for his incarceration. Through numerous telephone calls, the State proved that
Paul sought to have appellant and Donnie Green steal drugs and take revenge upon
Yugovich for his refusal to give money to appellant for Paul’s attorney.
On the night of March 25, 2007, appellant arranged for Yugovich to sell her some
methamphetamine at the home of Jerry Don Castle. Yugovich arrived with his
girlfriend Michelle Pierce. While Pierce and Castle were playing pool, Yugovich and
appellant were in another room. Appellant excused herself by representing that she
had to go to the bathroom. Then, Pierce heard a noise and Yugovich called out in a
distressed voice. When she responded, she observed a man later identified as Green
standing before Yugovich while Yugovich bled from his head. Pierce then saw Green
hit Yugovich in the head with a metal t-post. Thereafter, she too was struck in the head
by Green.
Green gathered the drugs present, retrieved money found lying on the floor, and
left. Appellant then exited the bathroom and left the residence. However, she forgot
to take her wallet, which was later found by police at the crime scene. Yugovich’s skull
was fractured and he continued to suffer brain damage up to the time of trial.
2 Issues 1 and 2 - Defense of Duress
Appellant argues that the trial court erred in failing to permit her expert witness to
testify that she acted under duress because she was a battered woman and afraid of
Paul. She also contends the trial court erred in not instructing the jury on her defense
of duress. We overrule the issues.
To avail oneself of the defense of duress, the actor must have “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.” TEX. PENAL CODE ANN. §8.05(a) (Vernon
2003). Compulsion exists “only if the force or threat of force would render a person of
reasonable firmness incapable of resisting the pressure.” Id. §8.05(c). Moreover, one
asserting an affirmative defense such as duress must admit to having engaged in the
proscribed conduct. Hubbard v. State, 133 S.W.3d 797, 799 (Tex. App.–Texarkana
2004, pet. ref’d) (involving the defense of necessity); Gonzalez v. State, No.
05-08-0187-CR, 2009 Tex. App. LEXIS 5762 at *4 (Tex. App.–Dallas July 28, 2009, no
pet.) (not designated for publication) (involving duress); see Alford v. State, 866 S.W.2d
619, 624 n.9 (Tex. Crim. App. 1993) (noting that the rationale of duress is that even
though the accused has done the act required and had the mental state required, the
conduct is justified because he has avoided harm of a greater magnitude); see also
Bernal v. State, 647 S.W.2d 699, 706 (Tex. App.–San Antonio 1982, no pet.) (holding
that the defendant was not entitled to an instruction on duress when he denied having
engaged in sexual intercourse with the complainant); Hawkins v. State, No.
14-07-0381-CR, 2008 Tex. App. LEXIS 7214 at *8-9 (Tex. App.–Houston [14th Dist.]
3 September 25, 2008, no pet.) (not designated for publication) (holding the defendant
was not entitled to an instruction on duress when his theory at trial was that he was
misled by his passenger into driving him to the scene of the crime and was not aware of
the robbery until after it occurred); Riley v. State, No. 10-07-0060-CR, 2008 Tex. App.
LEXIS 2357 at *14 n.3 (Tex. App.–Waco April 2, 2008, no pet.) (not designated for
publication) (stating that when the defendant denied sexually assaulting the victim with a
pipe but claimed only to have slapped the victim, she was not entitled to an instruction
on duress).
At trial, appellant attempted to show that she was not guilty of the offense
because she did not know what was going to happen and/or she only participated in a
drug transaction. At the same time, she argued to the trial court that because the
evidence was sufficient to go to the jury with respect to her guilt as a party or under a
conspiracy theory, she was entitled to an instruction on duress.1 Yet, she never
admitted to the accuracy of the conduct underlying the charge. And, contrary to her
suggestion on appeal, failing to deny the commission of the acts does not equal
admitting them. If this were not so, then the State’s burden in many criminal
prosecutions would be greatly reduced when the accused opts to remain silent.
Appellant’s alternative suggestion that evidence proffered by the State illustrating
her involvement in the planning of the robbery was tantamount to an admission of the
charged offense is also inaccurate. Again, the accused is obligated to admit the
conduct underlying the offense. Forcing the State to carry its burden of proof is not
1 Appellant did not testify. However, she presented evidence through other witnesses that Paul attempted to control her life and that she had been beaten by him in the past.
4 such an admission. And, the evidence alluded to by appellant which illustrated her
complicity in the crime was nothing more than effort by the State to fulfill its burden. It
was not an admission by appellant that she engaged in the underlying conduct.
Indeed, to hold otherwise would be illogical. That the prosecutor tendered evidence of
guilt does not permit one to rationally deduce that the defendant admits to the veracity
of the evidence tendered. The latter does not follow from the former.
Appellant also contends she has the right to rely upon alternative conflicting
theories. While this may generally be true, it does not relieve her from satisfying the
conditions prerequisite to establishing duress, and one such condition concerned her
admission to the underlying criminal conduct.
So, the trial court did not err in refusing to submit the affirmative defense of
duress. Nor did it err in excluding the testimony of her expert on that subject.
Because appellant failed to admit to performing the deeds upon which the robbery was
founded, the matter of duress was irrelevant. Thus, the trial court did not abuse its
discretion by excluding information about an irrelevant topic.
Issue 3 - Lesser-Included Offense
In her third issue, appellant argues that she should have received an instruction
on the lesser-included offense of theft. We overrule the issue.
For appellant to have been entitled to an instruction on a lesser offense, the
elements of the lesser offense must be included within the proof necessary to establish
the greater offense, and some evidence must appear of record that would permit a jury
to rationally find that if appellant is guilty of anything, it is only of the lesser offense.
5 Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). In considering
the first prong, we compare the elements of the lesser crime to those of the greater as
the latter are described in the indictment. Hall v. State, 225 S.W.3d 524, 535-36 (Tex.
Crim. App. 2007). If the elements of the lesser offense are not included in the wording
of the crime as alleged in the indictment, it is not a lesser-included offense.
With respect to the second prong, if there is more than a scintilla of evidence
from any source indicating that the defendant is guilty only of the lesser offense, the
instruction must be given. Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App.
1999). However, the evidence in question must affirmatively negate the element
present in the greater offense but absent in the lesser. Morris v. State, No.
07-99-0498-CR, 2000 Tex. App. LEXIS 7181 at *5 n.1 (Tex. App.–Amarillo October 25,
2000, pet. ref’d) (not designated for publication).
For purposes of this opinion, we assume that theft is a lesser-included offense of
aggravated robbery and instead focus on whether there is any evidence suggesting that
if appellant is guilty, she is guilty only of theft. Appellant attempts to satisfy that
requirement by referring to statements she made in recorded telephone conversations
about tricking Yugovich into bringing more drugs than she had money to buy. While
this evidence illustrates that she may have committed theft, it falls short of illustrating
that theft was the only crime she committed. Appellant refers us to no evidence
indicating that Green did not bludgeon Yugovich with the t-post, that appellant did not
participate in the planning of the operation with Paul and Green, that appellant did not
know Green would arrive at Castle’s residence to assault Yugovich, or that she did not
6 aid or assist Green or Paul by inducing Yugovich to appear at the intended crime scene.
Without such data she cannot remove herself as a party to the aggravated robbery.
See TEX. PENAL CODE ANN. §29.03(a)(1) (Vernon 2003) (stating that aggravated robbery
occurs when a person intentionally, knowingly, or recklessly while in the course of
committing theft of property and with intent to obtain and maintain control of the property
causes serious bodily injury to another); Id. §7.02(a)(2) (Vernon 2003) (stating that one
is culpable for the conduct of another if he solicits, encourages, directs, aids or attempts
to aid the other person to commit the offense). And, without evidence tending to sever
her nexus as a party to the robbery committed by Green, it cannot be said that she only
committed theft. So, appellant was not entitled to an instruction simply on theft.
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn Chief Justice
Do not publish.