Arroyo, Dennis Mark v. The State of Texas--Appeal from 268th District Court of Fort Bend County

Affirmed and Opinion filed September 12, 2002.

In The

Fourteenth Court of Appeals

____________

NO. 14-01-00599-CR

____________

DENNIS MARK ARROYO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 268th District Court

Fort Bend  County, Texas

Trial Court Cause No. 31,582A

O P I N I O N

Appellant, Dennis Mark Arroyo, was convicted by a jury of attempted capital murder and aggravated kidnapping. In one point of error, appellant claims the trial court erred in improperly instructing the jury on the affirmative defense of duress. We affirm.

The complainant, Tyrone Jones, and appellant both associated with a man named Michael Robinson. On March 6, 1999, Jones met with Robinson to discuss a missing purse that Robinson=s girlfriend apparently left in Jones=s car several days earlier. Robinson eventually forced Jones at gunpoint to enter the apartment of a mutual friend, where Jones saw appellant and several other people. Once in the apartment, Robinson began hitting Jones with the gun while appellant watched. Jones then heard appellant and the others discuss taking Jones somewhere and killing him. Robinson told appellant and another man, David Thompson, Ato go down and get the car ready.@ Later, Robinson walked Jones downstairs with the gun at Jones=s side and forced him to get in the back seat of a car. Robinson then told appellant to sit in the back seat with Jones and handed appellant his gun while Thompson got in the driver=s seat. Robinson and his girlfriend got in another car, and both cars drove off. As they drove, appellant told Jones A[D]on=t move, don=t make me shoot you.@ The cars eventually stopped underneath an overpass just off the highway. After everyone got out of the cars, Robinson retrieved the gun from appellant and handed it to Thompson, who fired one shot in Jones=s direction. Jones started running, so Robinson took the gun from Thompson and began chasing Jones. Jones eventually fell to his knees, and Robinson shot him twice in the face, leaving him for dead. The others got back in their cars and drove back to the apartment to clean up.

Appellant was charged by indictment with one count of attempted capital murder and one count of aggravated kidnapping. The jury convicted appellant on both counts, and he was sentenced to ten and twenty years, respectively, in the Texas Department of Justice, Institutional Division, with the sentences to be served concurrently. This appeal followed.

In his sole point of error, appellant claims the application paragraphs in the jury charge erroneously instructed the jury on his affirmative defense of duress. The trial court correctly instructed the jury in the abstract on appellant=s defense of duress as follows:

It is an affirmative defense to prosecution for any offense that the person charged engaged in the proscribed conduct because he was compelled to do so by the threat of imminent death or serious bodily injury to himself or another. Such compulsion exists only if the threat of force is such as would render a person of reasonable firmness incapable of resisting the pressure.

See Tex. Pen. Code Ann. ' 8.05 (Vernon 1994). In the application paragraphs of the charge, however, the jury was instructed it should find appellant Anot guilty@if it found by a preponderance of the evidence Athat Michael Robinson had threatened to kill [appellant] if he did not participate@ in the charged offenses. Appellant claims the court=s charge improperly limited his duress defense to compulsion induced by threat of death only, as opposed to Athreat of imminent death or serious bodily injury.@

We conclude that, even if the trial court erred in instructing the jury in the application paragraphs of the charge, the error was harmless because the evidence did not raise the defense of duress. Duress is available as an affirmative defense when a defendant is Acompelled@to commit the charged offense Aby threat of imminent death or serious bodily injury to himself or another.@ Id. '8.05(a). Section 8.05 further provides: ACompulsion 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.@ Id. '8.05(c). Thus, a defendant=s claim of duress must have an objective, reasonable basis. Cameron v. State, 925 S.W.2d 246, 250 (Tex. App.CEl Paso 1996, no pet.). Appellant=s claim of duress relies solely on his own testimony, in which he states he got into the car with Jones because he Awas told to@by Robinson and that he Adidn=t feel like [he] had any choice.@ The fact that appellant was allegedly taking orders from another is not sufficient to raise the defense of duress. See id. (citing Leviness v. State, 247 S.W.2d 115, 118 (Tex. Crim. App. 1952)). Without evidence of a specific, objective threat, appellant=s testimony about his vague and subjective fears is insufficient as a matter of law to support an instruction on duress. See id. (defendant=s testimony that he was generally afraid of co-defendant=s temper held insufficient to support submission of a duress instruction); Bernal v. State, 647 S.W.2d 699, 706 (Tex. App.CSan Antonio 1982, no pet.) (defendant=s testimony that he feared co-defendant Amight get violent@ held insufficient to support duress instruction). We overrule appellant=s sole point of error.

The trial court=s judgment is affirmed.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Opinion filed September 12, 2002.

Panel consists of Justices Yates, Seymore, and Guzman.

Do Not Publish CTex. R. App. P. 47.3(b).