Gerardo Tapia-Lopez v. State ( 2015 )

ACCEPTED
01-14-01016-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/22/2015 3:28:19 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-01016-CR
In the
Court of Appeals
For the FILED IN
1st COURT OF APPEALS
First District of Texas HOUSTON, TEXAS
At Houston 7/22/2015 3:28:19 PM
 CHRISTOPHER A. PRINE
Clerk
No. 1399329
In the 177th District Court
Of Harris County, Texas

GERARDO TAPIA-LOPEZ
Appellant
V.
THE STATE OF TEXAS
Appellee

STATE’S APPELLATE BRIEF

DEVON ANDERSON
District Attorney
Harris County, Texas
KATIE DAVIS
Assistant District Attorney
Harris County, Texas
State Bar Number: 24070242
davis_katie@dao.hctx.net
JUSTIN KEITER
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, Suite 600
Houston, Texas 77002
Telephone: (713) 755-5826
Fax Number: (713) 755-5809
ORAL ARGUMENT WAIVED
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State waives
oral argument since the issues appear well-settled in Texas jurisprudence. But the
State will present argument if this Court deems it necessary.
IDENTIFICATION OF THE PARTIES
Counsel for the State:
Devon AndersonDistrict Attorney of Harris County
Katie DavisAssistant District Attorney on appeal
Justin KeiterAssistant District Attorney at trial
Appellant or Criminal Defendant:
Gerardo Tapia-Lopez
Counsel for Appellant:
Alexander Bunin—Chief Public Defender of Harris County
Bob Wicoff—Counsel on Appeal, Assistant Public Defender
Mario Madrid—Counsel at trial
Trial Judge:
Honorable Reagan ClarkVisiting Judge of 177th District Court
i
TABLE OF CONTENTS
Page
STATEMENT REGARDING ORAL ARGUMENT .......................................................... i
IDENTIFICATION OF THE PARTIES ................................................................................ i
TABLE OF CONTENTS........................................................................................................... ii
INDEX OF AUTHORITIES ................................................................................................... iii
STATEMENT OF THE CASE ................................................................................................. 1
STATEMENT OF FACTS ........................................................................................................ 1
SUMMARY OF THE ARGUMENT ..................................................................................... 4
REPLY TO APPELLANT’S SOLE POINT OF ERROR .................................................... 5
I. Standard of Review and Applicable Law .............................................................. 7
II. The trial court did not err in failing to include “other unknown individuals”
in the jury charge’s application of the affirmative defense of duress. ............... 8
III. The appellant was not egregiously harmed by the failure to include “other
unknown individuals” in the charge’s application paragraph regarding the
defense of duress. ......................................................................................................... 12
CONCLUSION .........................................................................................................................16
CERTIFICATE OF SERVICE AND COMPLIANCE ...................................................... 17
ii
INDEX OF AUTHORITIES
CASES
Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1984) ..................................................................... 7, 12
Anguish v. State,
991 S.W.2d 883 (Tex. App.—
Houston [1st Dist.] 1999, pet. ref’d) ........................................................................ 8, 9, 14
Arrington v. State,
451 S.W.3d 834 (Tex. Crim. App. 2015)......................................................................... 12
Barrera v. State,
982 S.W.2d 415 (Tex. Crim. App. 1998) .......................................................................... 9
Blount v. State,
542 S.W.2d 164 (Tex. Crim. App. 1976)............................................................... 8, 10, 14
Cameron v. State,
925 S.W.2d 246 (Tex. App.—
El Paso 1995, no pet.) .......................................................................................................... 10
Devine v. State,
786 S.W.2d 268 (Tex. Crim. App. 1989) ..................................................................... 8, 11
Druery v. State,
225 S.W.3d 491 (Tex. Crim. App. 2007) .......................................................................... 7
Longoria v. State,
14-11-01019-CR, 2013 WL 655710 (Tex. App.—
Houston [14th Dist.] Feb. 21, 2013, pet. ref’d) ......................................................... 13, 15
Matthews v. State,
582 S.W.2d 832 (Tex. Crim. App. 1979) ........................................................................ 12
Ngo v. State,
175 S.W.3d 738 (Tex. Crim. App. 2005) ......................................................................... 12
Oursbourn v. State,
259 S.W.3d 159 (Tex. Crim. App. 2008) .......................................................................... 7
iii
Potier v. State,
01-11-00861-CR, 2012 WL 5545352 (Tex. App.—
Houston [1st Dist.] Nov. 15, 2012, no pet.) ......................................................... 10, 11, 14
Rolle v. State,
367 S.W.3d 746 (Tex. App.—
Houston [14th Dist.] 2012, pet. ref’d) ..............................................................................15
Sanders v. State,
632 S.W.2d 346 (Tex. Crim. App. 1982) ......................................................................... 11
Vega v. State,
394 S.W.3d 514 (Tex. Crim. App. 2013) ..................................................................... 9, 16
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007) ....................................................... 7
TEX. PENAL CODE ANN. § 8.05(a) (West 2011) .................................................................... 7
RULES
TEX. R. APP. P. 39.1 ....................................................................................................................... i
TEX. R. APP. P. 9.4(g) .................................................................................................................. i
iv
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
The State charged the appellant with possessing methamphetamine with
the intent to deliver in an amount of at least 400 grams, and the jury found the
appellant guilty (CR – 7, 218; 4 RR 246). The jury assessed punishment at 23 years
confinement in the Institutional Division of the Texas Department of Criminal
Justice and a $1.00 fine (CR – 224-26; 5 RR 28-29). The trial court sentenced the
appellant in accordance with the jury’s verdict (CR – 224-26; 5 RR 28-30). The
appellant filed a timely notice of appeal, and the trial court certified that he had
the right to appeal (CR – 228-30).
STATEMENT OF FACTS
On August 16, 2012, the Houston Police Department’s (HPD) Street Level
Narcotics Unit set up surveillance at the Ashford Apartments after receiving
information that someone was trafficking narcotics (3 RR 19). Officer Moises
Zamora led the surveillance team (3 RR 77). Zamora observed the appellant at the
apartment complex working as a carpet cleaner (3 RR 79). The appellant had
access to several apartment units in order to perform his job (3 RR 79-80). Zamora
noticed that the appellant would use a key only when he went in and out of
Apartment 1303 (3 RR 82-3). At one point during the day, the appellant entered
Apartment 1303 with two other males (3 RR 85). Based on his experience as a
narcotics investigator, Zamora believed that the appellant provided these males
samples of the drugs (3 RR 86).
Later the appellant retrieved a white bucket from a van in the parking lot (3
RR 95). See (St. Ex. #46). The appellant took the bucket, which appeared empty at
this time, with him into Apartment 1303 (4 RR 7-8). He was in the apartment for
five to ten minutes and then returned to the van with the bucket, which now
appeared full (4 RR 8-10). The appellant placed the bucket in the back of the van
(4 RR 10). He drove the van and parked it towards the rear of the parking lot (4
RR 10-12). Zamora observed the appellant get out, meet with another unknown
male briefly, and then leave the parking lot in a blue Dodge Neon (4 RR 12). The
van remained under surveillance, and no one else approached or entered the van (4
RR 19). A K-9 unit reported to the scene and alerted on the van, indicating that
narcotics were inside (4 RR 13, 114).
Officer Carl Sanders with HPD worked as a uniformed unit with Zamora on
August 16 (4 RR 68-70). Sanders observed the appellant driving, that he failed to
signal a right-hand turn, that he stopped past the stop point at a stop sign, and
that he changed lanes without signaling (4 RR 73). Sanders activated his
emergency lights and pulled the appellant over for the traffic violations (4 RR 73-
75). The appellant cooperated and allowed Sanders to search his vehicle (4 RR
2
84). Sanders spoke with the appellant and asked him to return to the apartment
complex (4 RR 87).
The appellant voluntarily drove back to the apartment complex (4 RR 87).
Sanders asked the appellant for consent to search the van, but the appellant told
him that the van was no longer there (4 RR 90). Sanders knew this was a lie and
observed the appellant’s cheek muscle begin to twitch (4 RR 90). The appellant’s
story kept changing about his van and its location (4 RR 91-2). The appellant
ultimately admitted that the van was in the parking lot and gave officers
permission to search it (4 RR 16). Zamora located the white bucket he had
observed the appellant carrying earlier; inside were multiple packages of crystal
methamphetamine (meth) (4 RR 20-24). In total the appellant possessed over four
kilograms of meth (4 RR 23-24).
The officers contacted the apartment management, and the manager
explained that no one was supposed to be in Apartment 1303 (3 RR 35). She stated
that no one should have access, including the appellant (3 RR 36; 4 RR 30-31). The
manager gave the officers consent to search the apartment (3 RR 36). Inside, the
officers found no personal belongings or furniture (3 RR 38). In the kitchen
cabinet, they found more meth as well as meth oil (3 RR 38, 43; 4 RR 30-31). The
meth oil product is something that drug dealers smuggle into the country and then
cook into crystallized meth (4 RR 36). Zamora estimated that the officers
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recovered over half-a-million dollars’ worth of narcotics that would have made
40,000 servings (4 RR 41).
Ahtavea Barker, a criminalist with the Houston Forensic Science Center
(HFSC), tested the narcotics found in both the apartment and the bucket and
confirmed that it was meth (4 RR 116). She calculated that the total amount of
meth weighed 4,295.3 grams (4 RR 125-26). Jisel Bailon, a DNA analyst with
HFSC, tested items that were found on top of the drugs in the white bucket (4 RR
136). See (St. Ex. #53-54). Bailon determined that the appellant could not be
excluded as a contributor to the DNA found on those items (4 RR 136).
SUMMARY OF THE ARGUMENT
In his sole point of error, the appellant argues that the jury charge restricted
the jury’s consideration of the appellant’s defense of duress by limiting it to one
person, Miguel Zuniga. But the appellant failed to show that the threats from
“other unknown individuals” were imminent. Furthermore, the appellant failed to
show egregious harm.
4
REPLY TO APPELLANT’S SOLE POINT OF ERROR
In the appellant’s sole point of error, he argues that the trial court erred in
its application of the law to the facts on his affirmative defense of duress. (App’nt
Brf. 5). Specifically, the appellant argues that the jury charge limited his
affirmative defense of duress to fear of imminent loss of life or serious bodily injury
only at the hands of Zuniga. (App’nt. Brf. 5).
The application paragraph to the appellant’s affirmative defense of duress in
the jury charge, read:
Therefore, if you find from the evidence beyond a reasonable
doubt that the defendant, Gerardo Tapia-Lopez, did commit the
offense of possession with intent to deliver a controlled substance,
namely, methamphetamine, weighing at least 400 grams by aggregate
weight, including any adulterants or dilutants, as alleged in the
indictment, but you further find by a preponderance of the evidence
that Miguel Zuniga had threatened to kill or cause serious bodily
injury to the defendant or another if he did not participate in said
offense, and that the force or threats of force were such as would
render a person of reasonable firmness incapable of resisting the
pressure, and that the defendant was in fear of imminent loss of life or
serious bodily injury to himself or another at the hands of Miguel
Zuniga if he did not participate in the said offense and that so
believing, he did participate, then you will acquit the defendant and
say by your verdict “Not Guilty.”
If, however, after viewing the facts from the defendant’s
standpoint at the time, you do not find by a preponderance of the
evidence that the defendant’s participation in the said offense, if any,
was compelled by such threat of imminent death or serious bodily
injury to himself or another at the hands of Miguel Zuniga as would
render a person of reasonable firmness incapable of resisting the
pressure thereof, then you will find against the defendant on his
defense of duress (CR – 213-14).
5
The appellant contends that the evidence showed that the appellant was
not only in fear of Zuniga but of persons other than Zuniga. (App’nt Brf. 5-10). The
appellant testified that he received a call from Zuniga while he was working at the
apartments (4 RR 146). The appellant knew Zuniga from his home in Michoacan,
Mexico (4 RR 147). He explained that Zuniga was supposed to marry his sister,
but she called off the wedding (4 RR 147-49). The appellant claimed that Zuniga
was involved with the drug trade, and he considered Zuniga to be a dangerous
person (4 RR 149). He testified that drug cartels will kill you, cut off your head, or
hurt you if you do not do what they ask, that “[t]hey don’t think twice to do this.”
(4 RR 149, 158). The appellant explained that Zuniga threatened him (4 RR 150).
He stated that Zuniga called him and told him that another person would deliver
drugs to where he worked (4 RR 150-51). He testified that Zuniga said that if he
did not do this, Zuniga would kill him and his family (4 RR 153, 155).
The appellant further testified that he was “really nervous” and felt that
“[t]hey could have done it at the same time at the moment.” (4 RR 156). Trial
counsel then asked the appellant, “So your feeling is if you don’t do this, they’re
going to kill my family. If I don’t do this today, they know where my wife lives, my
kids live, my parents live, they’re going to go over there and kill them?” and the
appellant answered “Yes.” (4 RR 156).
6
I. Standard of Review and Applicable Law
A trial judge has the absolute duty to prepare a jury charge that accurately
sets out the “law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14
(West 2007); Oursbourn v. State, 259 S.W.3d 159, 179-80 (Tex. Crim. App. 2008).
When a rule or statute requires an instruction under the particular circumstances,
that instruction is the law applicable to the case, and the trial court must instruct
the jury on “whatever the statute or rule requires.” Oursbourn, 259 S.W.3d at 180.
The trial court must give the instruction for the law applicable to the case
regardless of whether it has been specifically requested. Id. at 179-80. If the
defendant fails to request such an instruction, as in the present case, the appellate
court must review the effect of the omission under the egregious harm standard.
Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007) (citing Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1984)).
Duress is an affirmative defense that applies when a defendant “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) (West 2011). In order to establish duress, a defendant must prove by a
preponderance of the evidence that a threat of death or serious bodily injury was
imminent and would render a person of reasonable firmness incapable of resisting
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the pressure. Id.; Anguish v. State, 991 S.W.2d 883, 886–87 (Tex. App.—Houston [1st
Dist.] 1999, pet. ref’d).
An “imminent threat is a present threat of harm.” Anguish, 991 S.W.2d at 886
(citing cases in which the Court of Criminal Appeals has construed the term
“imminent” in other contexts). This Court has determined that an imminent threat
has two components of immediacy. Id. “First, the person making the threat must
intend and be prepared to carry out the threat immediately” and “[s]econd,
carrying out the threat must be predicated upon the threatened person’s failure to
commit the charged offense immediately.” Id. (citing Devine v. State, 786 S.W.2d 268,
270–71 (Tex. Crim. App. 1989), and Blount v. State, 542 S.W.2d 164, 166 (Tex. Crim.
App. 1976)).
II. The trial court did not err in failing to include “other unknown
individuals” in the jury charge’s application of the affirmative
defense of duress.
The appellant argues that he was in fear of imminent death or serious bodily
injury to himself or another by not only Zuniga but by “other unknown individuals
who were involved with Zuniga or involved in a drug cartel.” (App’nt Brf. 8). But
the evidence did not raise the defense of duress from “other unknown individuals.”
In fact, the record does not even support duress by Zuniga. None of the threats
that the appellant testified placed him in fear of his or his family’s life were
imminent. See (4 RR 153, 155-56).
8
Although duress by Zuniga is “the law applicable to the case” because the
trial court appears to have charged the jury on the defense sua sponte, it does not
automatically entitle the appellant to a charge on duress caused by anyone. See
Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App. 1998) (holding that a trial
court has no duty to sua sponte charge the jury on unrequested defensive issues
raised by the evidence, but if the trial court on its own does instruct the jury on an
issue then it signals that the defense was “the law applicable to the case.”). The
facts still must support the application of duress to these “other unknown
individuals.” In other words, the appellant was required to show an imminent
threat from these “other unknown individuals.” Anguish, 991 S.W.2d at 886.
The appellant relies on Vega v. State, 394 S.W.3d 514, 519-20 (Tex. Crim. App.
2013). (App’nt Brf. 9). But Vega dealt with the affirmative defense of entrapment,
not duress. Id. at 520. In Vega, the trial court sua sponte provided an instruction on
entrapment in the jury charge and instructed the jury to acquit Vega if it found
that he was induced by Marshall Whitlock, a law enforcement officer. Id. at 518.
For the first time on appeal, Vega argued that the application should also have
included a second person named “Jerry.” Id. Vega argued and the court agreed that
the record showed “Jerry” was a confidential informant that had informed
Whitlock about the appellant and that it was at Jerry’s suggestion that the
appellant delivered the drugs to Whitlock. Id. at 520. Therefore, the court found
9
that “Jerry” should have also been included in the charge’s application of
entrapment. Id.
In the present case, the record does not show that the appellant was in
imminent danger by these “other unknown individuals.” The appellant never
articulated a particular threat that these individuals made. The appellant merely
testified that they threatened him without expanding more (4 RR 150, 155).
Additionally, the appellant did not testify that one of these “other unknown
individuals” was with him or his family members so that such an individual could
have carried out any supposed threat immediately. He testified that he merely felt
that if he did not handle the narcotics then “they” would kill him or his family (4
RR 155-56).
A threat of death at some indefinite time in the future is insufficient to
satisfy the requirement of imminence. Blount, 542 S.W.2d at 166; Potier v. State, 01-
11-00861-CR, 2012 WL 5545352, at *5 (Tex. App.—Houston [1st Dist.] Nov. 15,
2012, no pet.) (mem. op., not designated for publication). There is no evidence that
these “other unknown individuals” made a specific, objective threat to the
appellant or another if the appellant did not participate in moving the narcotics.
See Cameron v. State, 925 S.W.2d 246, 250 (Tex. App.—El Paso 1995, no pet.)
(finding no objective basis for a claim of compulsion when evidence showed only
that defendant was afraid of co-conspirator’s temper and followed his orders).
10
Even if the appellant articulated what “they” said, between the alleged
threat and the time the appellant handled the narcotics, he had the opportunity to
contact the police or leave the apartment complex. See Potier, 2012 WL 5545352 at
*5 (finding that a threat from a co-defendant no longer present with the Potier
was not imminent because he had the opportunity to contact the police, let the
victims go, or simply leave the apartment between the time of the threat and the
time he killed the victims).
Furthermore, not knowing who “they” are or where “they” are does not
indicate the “presence of a threat” required to prove imminence. See Devine, 786
S.W.2d at 270–71 (defining imminent as ready to take place, near at hand,
impending, hanging threateningly over one’s head, menacingly near, certain,
immediate, and threatening to occur immediately). While there may be situations
where a defendant does not know the person or persons’ names that intend to do
him harm, an identifiable person or persons is needed to meet the requirement of
imminence. For instance, in cases of self-defense from multiple assailants, courts
have allowed the term “others” when the evidence showed the defendant
perceived a threat from a defined group of people. See, e.g., Sanders v. State, 632
S.W.2d 346, 348 (Tex. Crim. App. 1982) (finding that the jury instruction on self-
defense should have included multiple assailants because the evidence showed a
particular group of people attacking the defendant) (citing Matthews v. State, 582
11
S.W.2d 832, 834 (Tex. Crim. App. 1979)). Therefore, the trial court did not err in
excluding “other unknown individuals” from the charge’s application of duress
because the evidence failed to show that there were imminent threats from these
individuals.
III. The appellant was not egregiously harmed by the failure to
include “other unknown individuals” in the charge’s application
paragraph regarding the defense of duress.
Even if not including “other unknown individuals” in the charge’s
application of duress was error, the appellant never requested that specific
instruction during the charge discussion (4 RR 219). Therefore, this Court must
review any effect of the omission under the egregious harm standard. Arrington v.
State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015) (citing Ngo v. State, 175 S.W.3d
738, 743–44 (Tex. Crim. App. 2005)). And errors which result in egregious harm
are those which deny an appellant a fair and impartial trial. Almanza, 686 S.W.2d at
171. Examining the alleged error in light of the entire jury charge, the state of the
evidence, the argument of counsel, and the record of the trial as a whole, the
appellant has not shown egregious harm. See id.
The evidence strongly supported a guilty verdict. The appellant was
observed entering and exiting an apartment that contained meth as well as items
to make more meth (3 RR 79-86). Zamora observed that the appellant only locked
Apartment 1303, despite entering and exiting other apartments that day, in an
12
apparent effort to keep the contents secure (3 RR 82-3). Zamora testified that no
one else entered or exited Apartment 1303 (3 RR 82-86). Additionally, the majority
of the drugs were found in the white bucket inside the appellant’s van (4 RR 20-
24). Zamora testified he observed the appellant take this empty bucket into
Apartment 1303 and return it to his van with something inside of the bucket (3 RR
95; 4 RR 7-8). And just as with Apartment 1303, no one else approached or entered
the van after the appellant moved it to the rear of the parking lot (4 RR 19).
Additionally, the appellant’s DNA could not be excluded from contents
inside of the bucket, and the appellant admitted that he put the packages of meth
into the bucket (4 RR 154, 205). Furthermore, the appellant failed to tell Zamora
about Zuniga and “other unknown individuals” when given the opportunity (4 RR
201-8). Rather, the appellant told Zamora that his friend asked him to receive a
package and that someone would pick it up later; the appellant knew it would be
drugs and still accepted it (4 RR 202). Finally, the appellant admitted on cross-
examination that he was a liar (4 RR 198).
Any error in an unjustified defensive instruction is not harmful. See Longoria
v. State, 14-11-01019-CR, 2013 WL 655710, at *7 (Tex. App.—Houston [14th Dist.]
Feb. 21, 2013, pet. ref’d) (mem. op., not designated for publication) (finding no
egregious harm in charge’s error in placing the burden of proof in a consent
instruction when the appellant was not entitled to the instruction in the first
13
place). As previously stated, the appellant was not entitled to an instruction on
duress because he failed to show that the imminent threats. The evidence only
showed that the threats came directly from Zuniga, which were not sufficient to
justify a duress instruction.
Zuniga’s threats were made over the phone from Mexico (4 RR 146-47). The
appellant testified that Zuniga told him if he did not accept the narcotics that he
would kill him and his family (4 RR 153-55). But, as previously stated, threats of
death at some indefinite time are insufficient to establish duress. Blount, 542
S.W.2d at 166; Potier, 2012 WL 5545352 at *5. Zuniga’s threat was made over the
phone; therefore any threat made by Zuniga could not have been immediately
carried out. See Potier, 2012 WL 5545352 at *5 (finding that a threat over the phone
from a co-defendant no longer present with the defendant was not imminent).
No evidence was presented that Zuniga was with the appellant’s family or
near them when the threat was made. Furthermore, there is no evidence that
Zuniga gave the appellant a deadline by which to accept the narcotics and how
long to hold them (4 RR 150). See Anguish, 991 S.W.2d at 886–87 (concluding that a
threat was not imminent to establish duress because “there was no evidence that
the persons making the threat gave appellant a time by which he was to commit
the robbery, much less that he was to commit the robbery immediately”).
14
Moreover, as previously stated, the appellant did not establish an imminent
threat from “other unknown individuals.” There was no evidence about what the
“other unknown individuals” said that forced the appellant into committing the
charged offense (4 RR 155-58). Furthermore, the appellant established throughout
trial that Zuniga was a leader in the cartel, and therefore any harm caused by
others would have come at his direction.
Because the appellant was not entitled to an instruction on duress, any error
in excluding “other unknown individuals” in the instruction’s application does not
establish egregious harm. Longoria, 2013 WL 655710 at *7. Thus, the appellant
failed to show that any possible error was egregious harm. See id.; see also Rolle v.
State, 367 S.W.3d 746, 757 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d)
(noting that egregious harm is “such harm that the defendant has not had a fair
and impartial trial”).
Finally, looking at the record as a whole the appellant failed to show
egregious harm. The appellant does not complain about any other sections of the
jury charge (CR – 211-18). Moreover, neither the State nor the appellant suggested
that there was any distinction between Zuniga and the “other unknown
individuals.” The appellant argued that he was in fear of his life without referring
to a specific person in closing argument (4 RR 223-25, 230). And the State urged
the jury to reject the defense, not because others had made threats, but because the
15
appellant had failed to show any imminent threat (4 RR 236-46). See Vega, 394
S.W.3d at 521-22 (finding no harm in the trial court’s failure to apply entrapment
to a second individual under the Almanza factors). Therefore, it is unlikely the jury
that rejected duress caused by Zuniga would have acquitted the appellant based
on duress caused by “other unknown individuals.” The exclusion of “other
unknown individuals” did not affect the very basis of the case, and the appellant’s
sole point of error should be overruled.
CONCLUSION
It is respectfully submitted that all things are regular and the conviction
should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/S/ Katie Davis
KATIE M. DAVIS
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, Suite 600
Houston, Texas 77002
Telephone (713) 755-5826
Fax Number (713) 755-5809
Davis_Katie@dao.hctx.net
State Bar Number: 24070242
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CERTIFICATE OF SERVICE AND COMPLIANCE
This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 3,771 words in it; and (b) a
copy of the foregoing instrument will be served by efile.txcourts.gov to:
Bob Wicoff
Assistant Public Defender
Harris County, Texas
1201 Franklin, 13th Floor
Houston, TX 77002
Bob.Wicoff@pdo.hctx.net
/S/ _ Katie Davis
KATIE M. DAVIS
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, Suite 600
Houston, Texas 77002
Telephone (713) 755-5826
Fax Number (713) 755-5809
Davis_Katie@dao.hctx.net
State Bar Number: 24070242
Date: July 22, 2015
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