Duson v. State , 1977 Tex. Crim. App. LEXIS 1327 ( 1977 )

OPINION

ONION, Presiding Judge.

This appeal is from a conviction for driving a motor vehicle upon a public highway while intoxicated. After a verdict of guilty, the court assessed punishment at thirty (30) days in jail and at a fine of $200.00. Appellant was placed on misdemeanor probation for one (1) year. See Article 42.13, Vernon’s Ann.C.C.P.

In his sole ground of error appellant urges the “trial court erred by including in its charge to the jury an instruction that ‘To render duress a defense to a criminal charge, the act must be done when the party threatening the duress is actually present.’ ”

A brief recitation of the facts is necessary. On July 24, 1974 appellant was seen driving his automobile in a reckless manner near the intersection of South Shepherd and Westheimer Streets in Houston. A little later he collided with another vehicle in the 1700 block of South Shepherd not far from the Hobbit Hole Club.

Houston police officers Foulis and Scott, who investigated the accident, were of the opinion that the appellant was intoxicated. Appellant told the officers his bleeding lip was a result of an earlier fight at a bar.

A subsequent breathalyzer test reflected appellant’s blood contained 0.20% alcohol. The question of intoxication was never disputed as appellant himself admitted he was intoxicated.

Bobby Cantu, owner of the Diablo Club, was called by the appellant. He arrived at his club about 5 p. m. on July 24, 1974 and found appellant “causing trouble.” Appellant was table hopping and would also stand at the bar preventing the waitresses from getting their drink orders. Cantu observed that appellant was “high,” and while he did not know how many drinks appellant had had, his current tab noted four. When appellant spilled a drink, Cantu ordered him to leave and escorted him out the rear door. Outside an argument ensued and when he saw appellant gesture as if to hit him, he struck appellant on the mouth and told appellant to leave before he hit him (appellant) again. Appellant ran to his automobile and departed. He did not follow or chase appellant.

The twenty-three year old appellant testified he went alone to the Diablo Club about 3 p. m. on July 24,1974 and began drinking Scotch and making a personal profile of some of the employees on the paper napkins noting character traits, etc. When he went to the bathroom, the napkins and his pen disappeared and he could not get a satisfactory answer from the waitress as to what happened to his notes so he changed tables. After he had been there awhile, he decided if he stayed until 6 p. m. he would be intoxicated so he telephoned a friend, Douglas Harrison, to pick him up at 6 p. m. so he wouldn’t have to drive.

About 5 p. m. Cantu arrived and his troubles began. Appellant stated he could not get service so he went to the bar, and later began making selections on the juke box, which he apparently was not permitted to do. Before 6 p. m. Cantu ordered him to leave, and appellant related he left by the front door, and when he got to the side of the building Cantu came out the back door. Appellant acknowledged Cantu mistook a gesture he made and struck him in the mouth and knocked him down. Cantu then threatened to kill him if he did not leave the premises. Appellant ran to his automobile and left. The accident occurred a short time later about eighteen blocks or two miles away.

Appellant stated he would not have driven his automobile in an intoxicated condition if it had not been for Cantu’s blow and threats. He was frightened and could not wait for Harrison and sought to reach his friends at the Hobbit Hole Club.

In submitting the defense of duress to the jury at the guilt stage of the trial the court charged in part as follows:

“In a prosecution for a misdemeanor offense it is an affirmative defense to prosecution that the defendant engaged in the proscribed conduct because he was compelled to do so by force or threat of force.

“Compulsion exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.

“To render duress a defense to a criminal charge, the act must be done when the party threatening the duress is actually present. The party is actually present if he is in such proximity to the place where the act is done as to have control over the person threatened. The defense of duress is unavailable if the defendant intentionally, knowingly or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion. . . . ”

Appellant contends the court failed to respond to his objection that the charge was erroneous in that it instructs the jury that the party threatening the duress must be “actually present.”

Former Article 38, Vernon’s Ann.P.C., 1925, relating to duress, did provide in part:

“3. The act must be done when the person threatening is actually present.”

This was construed to mean that a threatening party is actually present if “the person shall be so near as to have the party with the means at his command under his power and control at the time he does the act.” Paris v. State, 35 Tex.Cr.R. 82, 31 S.W. 855 (1895).

V.T.C.A., Penal Code, § 8.05, has replaced former Article 38. It reads:

“(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 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.” (Emphasis added.)

It is observed that the “actually present” requirement of former Article 38 is not found in the new statute.

It appears, however, that while the court in the instant case charged in accordance with § 8.05, supra, it added the former requirement of “actually present.” This addition should not have been made to the court’s charge on duress. Nevertheless, no reversible error is presented.

The evidence did not raise the defense of duress and the trial court need not have charged on the same.

V.T.C.A., Penal Code, § 2.04(c), provides:

“The issue of the existence of an affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense.”

There was no evidence of “force or threat of force” to cause the appellant to become intoxicated. He admitted he voluntarily went to the Diablo Club and became intoxicated. He then began having difficulties which led to his eviction during which he was struck and threatened if he did not leave the premises. There was no evidence of “force or threat of force” to leave the premises by means of driving an automobile and only by that means despite the fact appellant was intoxicated. Cantu apparently did not know how appellant had arrived at the club. While it might not have been practical for appellant to return to the club to call his friend, Harrison, or others, or to call a taxicab, there was testimony that telephones were available at business establishments within two blocks of the Diablo Club. Cantu testified he did not pursue the appellant, and the appellant testified that after he left in his car he didn’t think anyone was chasing him and he didn’t know why he didn’t go to a telephone down the street and call a friend. He did state he did not stop prior to the accident to call a cab because he “was just so shook up and scared I just kept going and tried to get to the Hobbit Hole where I knew some people.”

It should be remembered that the offense is driving while intoxicated. That offense was shown to have occurred on a public highway some two miles or eighteen blocks from where the altercation with Cantu, who was not pursuing him, occurred. Under the circumstances, the court need not have charged on the defense of duress, and the fact that the court gave a charge on duress, even though erroneous as mentioned, does not constitute reversible error.

For the reasons stated, appellant’s contention is overruled. The judgment is affirmed.