Whitworth, Stephen Craig

• Court: Court of Appeals of Texas
• Decided: December 31, 2014
• Docket: PD-1467-14
• Status: Published

Opinion

PD-1467-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/30/2014 2:34:23 PM Accepted 12/31/2014 11:11:28 AM ABEL ACOSTA CAUSE NO. PD-1467-14 CLERK

IN THE COURT OF CRIMINAL APPEALS OF TEXAS ______________________________

STEPHEN CRAIG WHITWORTH Appellant/Petitioner

V.

STATE OF TEXAS Appellee/Respondent _____________________________

From the Eleventh Court of Appeals, Eastland, Texas Appellate Cause No. 11-12-00114-CR

Tried in the 441st District Court, Midland County, Texas Trial Cause No. CR38839

______________________________________

STATE’S REPLY TO PETITION FOR DISCRETIONARY REVIEW ______________________________

Teresa Clingman District Attorney, Midland County, Texas

Carolyn D. Thurmond Assistant District Attorney December 31, 2014 State Bar No. 00785104 500 North Loraine, Suite 200 Midland, Texas 79701 (432) 688-4420 voice (432) 688-4938 fax carolyn_thurmond@co.midland.tx.us LIST OF PARTIES AND THEIR COUNSEL

Pursuant to TEX. R. APP. P. 38.1(a), the State certifies the

following is a complete list of the names and addresses of the parties to

the final judgment of trial and their counsel.

Appellant, Trial and Appellate Counsel

 Stephen Craig Whitworth, Appellant Inmate, Texas Department of Criminal Justice

 David Martinez Attorney at Law 1663 Broadway Lubbock, Texas 79401 Appellate Counsel

 Rick A. Navarrete NAVARRETE & SCHWARTZ 1007 West Texas Avenue Midland, Texas 79701 Former Appellate Counsel

 Roy Scott Attorney at Law 407 N. Big Spring St., Ste. 200 Midland, Texas 79701 Trial Counsel

ii State of Texas Trial Counsel and Appellate Counsel

 The State of Texas, Appellee/Petitioner

 Teresa Clingman District Attorney for Midland County, Texas 500 N. Loraine, Ste. 200 Midland, Texas 79701

 Laura Nodolf, First Assistant District Attorney 500 N. Loraine, Ste. 200 Midland, Texas 79701 Trial Counsel

 Carolyn D. Thurmond, Assistant District Attorney 500 N. Loraine, Ste. 200 Midland, Texas 79701 Appellate Counsel

Trial Judge

 Hon. Rodney W. Satterwhite 441st District of Midland County, Texas 500 N. Loraine, Ste. 901 Midland, Texas 79701

iii TABLE OF CONTENTS

Table of Contents

LIST OF PARTIES AND THEIR COUNSEL ...........................................ii

TABLE OF CONTENTS .......................................................................... iv

INDEX OF AUTHORITIES ...................................................................... v

STATEMENT REGARDING ORAL ARGUMENT .................................. 2

STATEMENT OF THE CASE .................................................................. 2

STATEMENT OF PROCEDURAL HISTORY ......................................... 3

STATE’S REPLY TO GROUND FOR REVIEW ....................................... 4

ARGUMENT ............................................................................................. 4

A. Appellant’s Contentions in his Petition ........................................ 4 B. Standard of Review ........................................................................ 5 C. State’s Response to the Duress Defense ....................................... 5 D. State’s Response to the Necessity Defense ................................... 8

PRAYER FOR RELIEF ............................................................................. 9

CERTIFICATE OF SERVICE................................................................. 10

CERTIFICATE OF COMPLIANCE ........................................................ 11

iv INDEX OF AUTHORITIES

Cases

Anguish v. State, 991 S.W.2d 883 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) ................................................................................................ 6

Bernal v. State, 647 S.W.2d 699, 706 (Tex. App. – San Antonio 1982, no pet.) ........................................................................................................ 8

Cameron v. State, 925 S.W.2d 246 (Tex. App. – El Paso, 1995, no pet.) .. 7

Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993) .......................... 5

Murkledove v. State, 437 S.W.3d 17 (Tex. App.—Fort Worth 2014, pet. dism’d) .................................................................................................... 7

Pennington v. State, 54 S.W.3d 852, 856 (Tex. App.—Fort Worth 2001, pet. ref’d). ............................................................................................... 5

Ramirez v. State, 336 S.W.3d 846 (Tex. App.—Amarillo 2011, pet. ref’d). ................................................................................................................ 6

Whitworth v. State, 11-12-00114-CR, 2014 Tex. App. LEXIS 5864 (Tex. App.—Eastland 2014) ............................................................................ 3

Whitworth v. State, 11-12-00114-CR , 2014 Tex. App. LEXIS 10922 (Tex. App.—Eastland 2014) ................................................................... 4

Statutes

TEX. PENAL CODE ANN. § 19.02(b)(1) (2011) .............................................. 2

TEX. PENAL CODE ANN. § 19.02(b)(2) (2011) .............................................. 2

TEX. PENAL CODE ANN. § 22.02(a)(1) (2011) .............................................. 2

v TEX. PENAL CODE ANN. § 22.02(a)(2) (2011) .............................................. 2

TEX. PENAL CODE ANN. § 8.05(a) (2011)..................................................... 6

TEX. PENAL CODE ANN. § 8.05(c) (2011) ..................................................... 6

TEX. PENAL CODE ANN. § 8.05(d) (2011)..................................................... 6

Rules

TEX. R. APP. P. 38.1(a),...............................................................................ii

TEX. R. APP. P. 68.4(h). .............................................................................. 9

vi CAUSE NO. PD-1467-14

IN THE COURT OF CRIMINAL APPEALS OF TEXAS ______________________________

STEPHEN CRAIG WHITWORTH

Appellant/Petitioner

STATE OF TEXAS

Appellee/Respondent _____________________________

STATE’S REPLY TO PETITION FOR DISCRETIONARY REVIEW ______________________________

COMES NOW the State of Texas, by and through her District

Attorney, and respectfully asks this Honorable Court to deny

discretionary review as requested by the Petitioner in the above named

cause and pursuant thereof would show the Court as follows:

1 STATEMENT REGARDING ORAL ARGUMENT

The State requests oral argument. The issues raised by both

parties involve defenses of duress and necessity and the circumstances

of the propriety for the trial court to instruct to the jury concerning

these defenses. Oral argument is necessary in this case for full

development of these issues.

STATEMENT OF THE CASE

Stephen Craig Whitworth, hereafter referred to as “Appellant,”

was indicted in the 441st District Court of Midland County, Texas, on

August 11, 2011, for the offenses of Murder of Christopher Easley in

Count 1, and Count 2 Aggravated Assault with the intent to cause

serious bodily injury to Anne Bostic. (CR1 8-10). See TEX. PENAL CODE

ANN. § 19.02(b)(1) (2011), TEX. PENAL CODE ANN. § 19.02(b)(2) (2011),

TEX. PENAL CODE ANN. § 22.02(a)(1) (2011), TEX. PENAL CODE ANN. §

22.02(a)(2) (2011). Trial before a jury was held; and, prior to submission

of the case to the jury, Appellant requested the instructions of duress

1References to the Clerk’s Record are abbreviated as “CR”, followed by the page number. 2 and necessity for both counts. (RR28 305; RR9 7). The trial court denied

the requested instructions. (RR8 308). Appellant was convicted of both

counts. (CR 80, 82; RR9 60-61). The same jury assessed punishment at

20 years imprisonment for each count. (CR 95, 96; RR10 72-73).

Appellant timely gave notice of appeal. (CR 65).

STATEMENT OF PROCEDURAL HISTORY

Four points of error were presented on direct appeal. On May 30,

2014, the Eleventh Court of Appeals affirmed Appellant’s conviction for

murder in Count One. Whitworth v. State, 11-12-00114-CR, 2014 Tex.

App. LEXIS 5864, *11 (Tex. App.—Eastland 2014, pet. filed) (mem. op.

on reh’g, not designated for publication). The Court reversed Appellant’s

conviction in Count Two for aggravated assault and remanded the case

back to the trial court for a new trial. Id. at *18.

Appellant requested a rehearing to review the sufficiency of the

evidence under the law of parties as to Count One. The State did not file

a motion for rehearing as to the decision in Count Two. The Court of

Appeals directed the State to file a response. On September 30, 2014,

2References to the Reporter’s Record are abbreviated as “RR” followed by the volume number and page number. 3 the Court of Appeals denied the Motion for Rehearing and issued a

memorandum opinion finding the evidence was sufficient to support

Appellant’s conviction for murder under the law of parties. Id. at *3.

STATE’S REPLY TO GROUND FOR REVIEW

Appellant did not admit to conduct to make him liable to the offense of murder as a principal or party. Thus, the Court of Appeals did not err in its affirmance of the trial court’s ruling to deny instructions on the defenses of duress and necessity.

ARGUMENT A. Appellant’s Contentions in his Petition

Appellant contends in his ground for review the Court of Appeals

erred in affirming the trial court’s denial of an instruction of the defense

of duress. In the argument portion of his petition, Appellant contends

he was entitled to jury instructions on defenses of duress and necessity.

Appellant relies on the testimony of the assault victim, Ann Bostic

(hereafter referred to as “Bostic”) and informant Devan Bomar

(hereafter referred to as “Bomar”), to provide evidence he was guilty of

murder as a party and therefore entitled to instructions on defense and

necessity.

4 B. Standard of Review

It is well settled that a defendant is entitled to an instruction on

every defensive issue raised by the evidence, regardless of whether that

evidence is strong, feeble, unimpeached, or contradicted. Walters v.

State, 247 S.W.3d 204, 209 (Tex. Crim. App. 2007). If the issue is raised

by a party, refusal to submit the requested the requested instruction is

reviewed under the abuse of discretion standard. See Muniz v. State,

851 S.W.2d 238, 254 (Tex. Crim. App. 1993). The evidence submitted in

support of a justification defense is reviewed in the light most favorable

to the defendant. See Pennington v. State, 54 S.W.3d 852, 856 (Tex.

App.—Fort Worth 2001, pet. ref’d).

C. State’s Response to the Duress Defense

Appellant argued in his Petition for the duress instruction that

Bomar’s and Bostic’s testimony “presented some evidence to show that

he engaged in conduct to commit the offense of murder as a party,

because compelled to do so because of threat of imminent death or

serious bodily injury.” (Petition for Discretionary Review p. 5). The

duress defense is available if “the actor engaged in the proscribed

conduct because he was compelled to do by threat of imminent death or

5 serious bodily injury to himself or another.” TEX. PENAL CODE ANN. §

8.05(a) (2011). 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 ANN. § 8.05(c) (2011). Furthermore, the

defense is unavailable if the actor, “intentionally, knowingly, or

recklessly placed himself in a situation in which it was probable he

would be subjected to the compulsion.” TEX. PENAL CODE ANN. § 8.05(d)

(2011).

In order to raise the defense of duress, the evidence must show

both compulsion and immediacy. There are two components to

immediacy. Anguish v. State, 991 S.W.2d 883, 886-887 (Tex. App.—

Houston [1st Dist.] 1999, pet. ref’d). First, the person making the threat

must intend and be prepared to carry out the threat immediately.

Second, carrying out the threat must be predicated upon the threatened

person’s failure to commit the charged offense immediately. Id.;

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

ref’d). Furthermore, to avail oneself of the defense the accused must

admit to having engaged in the proscribed conduct. Ramirez, 336

S.W.3d at 851.

6 There is no evidence in the record that Paul Curtis Lee (hereafter

referred to as “Lee”) threatened Appellant prior to the attack in which

Lee bludgeoned and stabbed Christopher Easley (hereafter referred to

as “Easley”) to death. There is not any objective evidence in the record

that during the attack on Easley that Lee said anything or threatened

Appellant to hold Bostic back. No evidence exists in the record in which

any inference of a threat by Lee towards Appellant was imminent such

that he would be compelled to participate in the murder of Easley.

The evidence at trial showed Appellant mentioned in his

statement to Sheriff’s Investigator Hunnicutt that he was afraid of Lee

because he could overpower him. (RR6 156). Appellant also said he was

afraid of Lee because of his alleged connection to the Texas Syndicate.

(RR6 156). The claim of duress must have an objective reasonable basis.

See Murkledove v. State, 437 S.W.3d 17 (Tex. App.—Fort Worth 2014,

pet. dism’d) (Even if defendant feared the possibility of or potential

harm to himself or his family, no evidence existed upon which an

inference could be made that harm was imminent when he decided to

act). Cameron v. State, 925 S.W.2d 246, 250 (Tex. App. – El Paso, 1995,

no pet.) (Defendant generally afraid of co-defendant’s temper, there is

7 no evidence of a specific threat). Bernal v. State, 647 S.W.2d 699, 706

(Tex. App. – San Antonio 1982, no pet.) (Fear that co-defendant might

get violent if defendant did not ‘take his turn” in rape held insufficient

to raise defense of duress).

As there was not any evidence of an imminent threat, the

Eleventh Court of Appeals was correct in its ruling Appellant was not

entitled to an instruction on the defense of duress. The trial court did

not err to deny the requested instruction.

D. State’s Response to the Necessity Defense

Appellant does not present an argument as to the applicability of

the necessity defense. The Petition contains a general statement in

reference to the Memorandum Opinion on Motion for Rehearing

published September 30, 2014, in which the Court of Appeals found the

evidence was sufficient to convict the Petitioner as a party to murder.

However, attorney for the State is unable to discern any analysis in the

Petition of how the evidence warrants an instruction on the necessity

defense. Rather than guess Appellant’s argument, the State submits

Rule of Appellate Procedure 68.4(h) applies to this situation. “A petition

must contain a direct and concise argument, with supporting

8 authorities, amplifying the reasons for granting review.” TEX. R. APP. P.

68.4(h). Appellant has not provided any reasons to argue his contention

that the finding by the Court of Appeals the evidence is sufficient

support the conviction for murder warrants a necessity defense

instruction. The State submits this issue is not adequately presented for

review.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, the State prays

the Court of Criminal Appeals deny Petitioner’s Petition for

Discretionary Review.

Respectfully submitted,

Teresa Clingman District Attorney of Midland County, Texas

By:

/S/ Carolyn D. Thurmond Carolyn D. Thurmond Assistant District Attorney State Bar No. 00785104 500 North Loraine, Suite 200 Midland, Texas 79701 (432) 688-4938 fax (432) 688-4420 voice carolyn_thurmond@co.midland.tx.us

9 CERTIFICATE OF SERVICE

I, Carolyn D. Thurmond, do hereby certify that on the 30th day of

December 2014, I sent a true and correct copy of the foregoing State’s

Reply to Petition for Discretionary Review was sent by United States

Mail, hand delivery or EServe or email to the following entities:

Lisa McMinn State Prosecuting Attorney P.O. Box 13046 Capitol Station Austin, TX 78711 Information@spa.texas.gov

David Martinez Attorney at Law 1663 Broadway Lubbock, Texas 79401 Email: dmtz@aol.com Attorney for Appellant

/S/ Carolyn D. Thurmond _____________________________ Carolyn D. Thurmond Assistant District Attorney

10 CERTIFICATE OF COMPLIANCE

I certify the State’s Reply to Petition for Discretionary Review was

prepared with Microsoft Word 2010 and that according to that

program’s word-count function, the sections covered by TEX. R. APP. P.

9.4(i)(1) contain 1,056 words. I further certify the body text is Century

Schoolbook 14 point font and the footnote text is 12 point font.

/S/ Carolyn D. Thurmond ____________________________ Carolyn D. Thurmond Assistant District Attorney