IN THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS CAUSE NO. 13-14-00201-CR
ON DIRECT APPEAL FROM:
IN THE DISTRICT COURT OF THE 107 THJUDICIAL DISTRICT IN CAMERON COUNTY, TEXAS CAUSE NO. 2012-DCR-02626
THE STATE OF TEXAS § IN THE DISTRICT COURT § Vs. § 107 THJUDICIAL DISTRICT § JOANNA GONZALEZ § CAMERON COUNTY, TEXAS
* * * * * * * * * * APPELLANT'S BRIEF * * * * * * * * * * By: Larry Warner, Counsel for Appellant 3109 Banyan Circle Harlingen,Tx 78550 Phone 956 230 0361; Fax 866 408 1968 Tex.State Bar# 20871500 Usdc,Stdx# 1230 office@larrywarner.com website: larrywarner.com Member, Bar of the Supreme Court of the United States(1984) Board Certified, Criminal Law Texas Board of Legal Specialization(1983) APPELLANT REQUESTS ORAL ARGUMENT, PURSUANT TO TEX.R.APP.PROC.39.7 ACCEPTED 13-14-00201-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 2/18/2015 4:01:27 PM DORIAN RAMIREZ

CLERKINITIAL BRIEF - 2

Pursuant to Tex.R.App.Proc.38.1(a),Appellant provides the following identity of parties and counsel:

PARTIES AND INTERESTED PERSONS 1. Joanna Gonzalez, Appellant. 2. Hon. Peter C. Gilman, State Bar No. 07952500, Assistant District Attorney, Cameron County Courthouse, 964 East Harrison, Brownsville, Texas 78520, Phone (956) 544-0849. PROSECUTING ATTORNEY AT TRIAL 3. Hon. Gabriela Martinez, State Bar No. 24062873, Assistant District Attorney, Cameron County Courthouse, 964 East Harrison, Brownsville, Texas 78520, Phone (956) 544-0849. PROSECUTING ATTORNEY AT TRIAL 4. Hon. Luis V. Saenz, State Bar No. 17514880, District Attorney, District Attorney, Cameron County Courthouse, 964 East Harrison, Brownsville, Texas 78520, Phone (956) 544-0849. PROSECUTING ATTORNEY AT TRIAL AND ON APPEAL 5. Hon. Raynaldo Rodriguez, Jr., State Bar No. 24046745, Attorney at Law, 1000 East Van Buren, Brownsville, Texas 78520, Phone (956) 778-8445 DEFENSE ATTORNEY AT TRIAL 6. HON. LARRY WARNER, State Bar No. 20871500, Law Office of Larry Warner, 3109 Banyan Circle, Harlingen, TX 78550. Phone (956) 230-0361. DEFENSE ATTORNEY ON APPEALINITIAL BRIEF - 3

Pursuant to Tex.R.App.Proc.38.1(b,Appellant provide s the following table of contents:

TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES................................ ...2
TABLE OF CONTENTS.................................. ...3
TABLE OF AUTHORITIES............................... ...4
STATEMENT OF CASE.................................. ...5
ISSUES PRESENTED................................... ...6 1. Did Young Woman (Ms. Joanna Gonzalez) prove her defense of duress by a preponderance of the evidence?

STATEMENT OF FACTS................................. ...7
SUMMARY OF ARGUMENT................................ 8-10 ARGUMENT..........................................1 1-23 CONCLUSION AND REQUEST FOR RELIEF.................. ..24
CERTIFICATE OF SERVICE............................. ..25
CERTIFICATE OF COMPLIANCE.......................... ..25INITIAL BRIEF - 4

Pursuant to Tex.R.App.Proc.38.1(c),Appellant provides the following index of authorities arranged alphabetically and indicating the pages of the brie f where the authorities are cited:
INDEX OF AUTHORITIES
CASES PAGES Belt v. State ,485 S.W.2d39,42hn2(Ga.App.1997,no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Commonwealth v. Bullock , 590 Pa. 480, 913 A.2d 207, 212–13 (2006) . . . . . . . . . . . . . . . . . . . 15 Commonwealth v. Reffitt (1912) 149 Ky 300, 148 SW 48, 42 LRA NS 329 . . . . . . . . . . . . . . . . . . . 16 Hernandez v. State ,191S.W.3d370(Tex.App.–Waco 2006) 14 Jackson v. Virginia ,443 U.S.307(1979) . . . . . . . 22 Lawrence v. State ,240 S.W.3d 912,917 hn12 fn24(Tex.Crim.App.2007) . . . . . . . . . . . . . . 15 People v. Dupree , 284 Mich. App. 89, 771 N.W.2d 470 (2009), aff'd, 486 Mich. 693, 788 N.W.2d 399 (2010) 15 People v. Keating ,174Cal.Rptr.286(Cal.App.[1st Dist. {4th Div.}]1981,no pet.) . . . . . . . . . . . . 22-23 Rex v. Crutchley (1831) 5 Car & P 133, 172 Eng Reprint 909 . . . . . . . . . . . . . . . . . . . . . . . 17-18 Rice v. State (App. 6 Dist. 1995) 893 S.W.2d 734, rehearing overruled, petition for discretionary rev iew refused . . . . . . . . . . . . . . . . . . . . . . 14 State Bank of Commerce v. U.S.Fidelity ,28 S.W.2d 184 (Tex.Civ.App.–Texarkana 1930)[internal quotations unchanged] . . . . . . . . . . . . . . . . . . . . 15

CODES: V.T.C.A., Penal Code § 8.05 . . . . . . . . . . 12-15 http://law2.umkc.edu/faculty/projects/ftrials/zenge r/ze ngerrecord.html(accessed February 2, 2015) . . . . 18INITIAL BRIEF - 5

Pursuant to Tex.R.App.P.38.1(a), Appellant providesthe following statement of the case, stating concisely the nature of the case, the course of the proceedings, and the trial court's disposition of the case:

STATEMENT OF THE CASE The defendant was charged by indictment with illega l possession of a firearm. She pleaded not guilty. She tried the issue of guilt or innocence to a jury

. She testified in her own behalf and averred duress, saying that she had had the gun at the instance of her boyfriend, who threatened her to get her to say it was her gun. The jury found her guilty. The judge rejected her application for probation and sentenced her to confinement in the penitentiary.INITIAL BRIEF - 6

Pursuant to Tex.R.App.Proc.38.1(e), Appellant prese nts this statement of issues presented:

ISSUES PRESENTED 1. Did Young Woman (Ms. Joanna Gonzalez) prove her defense of duress by a preponderance of the evidence?INITIAL BRIEF - 7

Pursuant to Tex.R.App.Proc.38.1(f), Appellant provi des the following statement of facts stating concisely without argument the facts pertinent to the issues of points presented:

STATEMENT OF FACTS 1. Did Young Woman (Ms. Joanna Gonzalez) prove her defense of duress by a preponderance of the evidenc e?

Young woman testified that boyfriend threatened to kill her if she did not take possession of the fire arm and the drugs and that was why she had possession o f the firearm and the drugs. "Q. (BY MR. RODRIGUEZ) Okay. So he told you this and he threatened your life; is that correct? A.[BY JOANNA GONZALEZ] Yes. Q. Did you feel he was capable of actually harming you? A. He is. He's a gang member from the Texas Syndicate. Q. As a matter of fact, you told that to the officers, correct? A. I told that to the officers. I went to the D.A.'s office. I've been everywhere to inform them that I'm afraid of my life. Q. What did you do after that? When he told you to do this, what did you do? A. Well, I grabbed the stuff and I did what he asked me to." (2012-DCR-2626, Court Reporter's Record, Volume 7, Page 217).INITIAL BRIEF - 8

Pursuant to Tex. R. App. Proc. 38.1(g), Appellant provides the following summary of the argument whic h he hopes the Court will find to be a succinct and accu rate statement of the argument made in the body of the brief not merely a repetition of the issues or points presented for review:

SUMMARY OF ARGUMENT A rational jury could not have found against the defendant on the issue of duress, an affirmative defense. Duress is an affirmative defense. On an affirmative defense, the defendant must introduce evidence and prove the defense by a preponderance of the evidenc e. One party may adopt the evidence of another or of a n opposing party. The State’s own Magistrate believed Defendant’s fea r and acted upon that belief and issued a protective order. The State’s own officer, Officer Camacho, testified that the victim of domestic violence was under duress. The very prosecutor who prosecuted Yo ung Woman, Ms. Gonzalez, had believed Ms. Gonzalez and had therefore prosecuted the boyfriend for aggravated assault on Ms. Gonzalez. The boyfriend had admittedINITIAL BRIEF - 9

that he committed the aggravated assault on Ms. Gonzalez. A state judge had accepted the admission and had sentenced the boyfriend to the penitentiary. Th e defendant said that the boyfriend had threatened he r if she did not say that the gun and the drugs were her s. A rational jury could not have found against the defendant on the issue of duress, an affirmative defense. To find against the defendant on duress, the jury would have had to have rejected the evidence that t he boyfriend confessed to assaulting Ms. Gonzalez, the Judge believed the boyfriend’s confession, another judicial official believed Ms. Gonzalez when she as ked for a protective order and issued a protective orde r against the boyfriend, as well as rejecting the testimony of Officer Camacho that a victim of domes tic violence was under duress. Officer Camacho and the two state Judges were disinterested witnesses. It would be unreasonable t o reject their testimony. As anticipatory rebuttal, this is not attempt toINITIAL BRIEF - 10

return to the factual sufficiency review which we employed from 1997 for twenty years or more; that i s a separate question. It is an assertion that the jury were simply unreasonable, irrational in rejecting t he evidence from three disinterested state witnesses. The Court of Appeals should find the verdict irrational and acquit appellant. Alternatively, it should take the courageous step o f using this case as an example of why we should retu rn to the use of a review of the factual sufficiency o f the evidence. Counsel may properly argue for a modification of existing law.INITIAL BRIEF - 11

Pursuant to Tex. R. App. Proc. 38.1(h), Appellant provides the following argument or the contentions made, with appropriate citations to the authoritiesand to the record: ARGUMENT Could a rational jury have found against Young Woman on the issue of duress? Did Young Woman (Ms. Gonzalez) prove duress by a preponderance of the evidence? A rational jury could not have found against the defendant on the issue of duress, an affirmative defense. To find against the defendant on duress, the jury would have had to have rejected the evidence that t he boyfriend confessed to assaulting Ms. Gonzalez, the Judge believed the boyfriend’s confession, another judicial official believed Ms. Gonzalez when she as ked for a protective order and issued a protective orde r against the boyfriend, as well as rejecting the testimony of Officer Camacho that a victim of domes tic violence was under duress. Officer Camacho and the two state Judges were disinterested witnesses. It would be unreasonable t oINITIAL BRIEF - 12

reject their testimony. As anticipatory rebuttal, this is not attempt to return to the factual sufficiency review which we employed from 1997 for twenty years or more; that i s a separate question. It is an assertion that the jury were simply unreasonable, irrational in rejecting t he evidence from three disinterested state witnesses. The Court of Appeals should find the verdict irrational and acquit appellant. Alternatively, it should take the courageous step o f using this case as an example of why we should retu rn to the use of a review of the factual sufficiency o f the evidence. Counsel may properly argue for a modification of existing law. Two provisions of the Penal Code are apposite: V.T.C.A., Penal Code § 8.05 § 8.05. Duress Currentness (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 wasINITIAL BRIEF - 13 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. Credits Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. Notes of Decisions (92) And V.T.C.A., Penal Code § 2.04 § 2.04. Affirmative Defense Currentness (a) An affirmative defense in this code is so labeled by the phrase: “It is an affirmative defense to prosecution . . . .” (b) The prosecuting attorney is not required to negate the existence of an affirmative defense in the accusation charging commission of the offense. (c) The issue of the existence of an affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense. (d) If the issue of the existence of an affirmative defense is submitted to the jury, the court shall charge that the defendant must prove the affirmative defense by a preponderance of evidence. Credits Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rdINITIAL BRIEF - 14 Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. Notes of Decisions (48) The trial court correctly submitted an instruction on duress to the jury. Evidence that defendant killed victim while acting under fear engendered by third person's threats that she would kill him if he did not kill victim was sufficient to support charge to jur y on affirmative defense of duress. Rice v. State (App. 6 Dist. 1995) 893 S.W.2d 734, rehearing overruled, petition for discretionary review refused. The trial judge was correct to submit the issue to the jury in Young Woman’s case because she testified th at there was imminent danger of death or serious bodil y injury to her from her boyfriend if she did not “ta ke the rap” for him; it was his gun, not hers. Testimony of a defendant that his possession of contraband was under duress is admissible. Hernandez v.
State ,191S.W.3d370(Tex.App.–Waco 2006) The evidence showed by a preponderance of the evide nce that the force or threat of force would render a pe rson of reasonable firmness incapable of resisting theINITIAL BRIEF - 15

pressure. TEX.PEN.CODE 8.05( c) Texas courts may consider the opinions of other common-law jurisdictions. The Court of Appeals may rely upon opinions of other jurisdictions. “Numerou s decisions of other appellate courts, including Texa s courts of appeals and courts of other jurisdictions , are in accord with our holdings....” Lawrence v.
State ,240 S.W.3d 912,917 hn12 fn24(Tex.Crim.App.2007) The defense of duress is applicable to a charge of being a felon-in-possession. (Per M.J. Kelly, J., w ith one judge concurring.) M.C.L.A. § 750.224f. People v. Dupree , 284 Mich. App. 89, 771 N.W.2d 470 (2009), aff'd, 486 Mich. 693, 788 N.W.2d 399 (2010).
Commonwealth v. Bullock , 590 Pa. 480, 913 A.2d 207, 212–13 (2006) Texas Courts may rely on decisions of courts of England interpreting the common law of England, whi ch the Republic of Texas adopted effective 1841: “In 1840 the Legislature [Congress] of Texas enact ed the following statute: “The common law of England, so far as it is notINITIAL BRIEF - 16

inconsistent with the Constitution and laws of this State, shall together with such Constitution and la ws, be the rule of decision, and shall continue in forc e until altered or repealed by the Legislature.” Arti cle 1, Rev. Civ. Statutes 1925.***Since the adoption of the common law the courts of this state have adhere d to the decisions of the English courts with as much strictness as the courts of the other states who ha ve the common law, not by adoption, but by inheritance , so to speak.”“ State Bank of Commerce v. U.S.Fidelity ,28 S.W.2d 184(Tex.Civ.App.–Texarkana 1930)[internal quotations unchanged] The Court may acquit the defendant if the defense o f duress is established by a preponderance of the evidence. Thus, in Commonwealth v. Reffitt (1912) 149 Ky 300, 148 SW 48, 42 LRA NS 329, defendant, accuse d of selling pooled tobacco in violation of a statute, admitted signing the pooling contract but alleged t hat he was compelled to do so under the belief that his failure or refusal to do so would result in his suffering bodily harm or property destruction at th e hands of night riders who were then terrorizing the tobacco-growing belt. The court, affirming acquitta l of defendant, relied entirely upon civil cases and hel d that an instruction to the jury defining the termINITIAL BRIEF - 17

"duress" as such violence or threats as were calcul ated to operate on a person of ordinary firmness and ins pire a just fear of great injury to person, reputation, or property was correct, and fairly and fully covered the law of the case. In so holding, the court commented that a strong case in favor of defendant had been presented, since here the fear which induced the ma king of the contract was not alone the loss of property, but of physical punishment as well. The court further stated that defendant's testimony that he was warne d by several persons that he would be in danger if he di d not pool was competent evidence tending to show not the truth or falsity of reported outrages committed by the night riders, but the fact that it was currently reported that such outrages had been committed, sin ce the object of all such evidence was to show that defendant had not voluntarily signed the contract pooling his tobacco, but had done so only under dur ess. And in Rex v. Crutchley (1831) 5 Car & P 133, 172 Eng Reprint 909, defendant was held not guilty of the charge of destroying a threshing machine where itINITIAL BRIEF - 18

appeared that the mob which broke the machine had compelled defendant as well as others to join them and strike the machine with a sledge hammer, and that before defendant had gone very far with the mob, he decided to run away from them at the first opportun ity and subsequently succeeded in doing so. Crutcherwas part of the “common law of England” adopted by the Republic of Texas, effective 1841. Although Crutche r is

a trial rather than an appellate opinion, it occupies the same place in jurisprudence as the trial of John Peter Zenger, who was acquitted as well. “The Verdict The jury withdrew to begin deliberations, but quickly returned with their verdict. Asked by the clerk whether John Peter Zenger was guilty of printing and publishing the libels in the information, Thomas Hunt, the jury formean replied: "Not guilty." Zenger wrote that with those two words "there were three huzzas in the hall, which was crowded with people; and the next day I was discharged from my imprisonment."http://law2.umkc.edu/faculty/projec ts/ftrials/zenger/zengerrecord.html(accessed February 2, 2015)INITIAL BRIEF - 19

It was uncontroverted that the same state which prosecuted Joanna Gonzalez, who said her boyfriend had assaulted her and that is why she held the gun and the drugs, had prosecuted that very boyfriend for that very assault. ”The abrasions, the bruises, the bleeding, the complaining of pain, the nervousness, the fearfulness, crying, being afraid, everything is in here in her report. This is in her report. As a matter of fact, what do they use this report for? What do they use this report for? This report was instrumental. Her police work was instrumental in one thing: Sending the case to the D.A.'s office, this very same D.A.'s office, the case against Luis Villarreal for assaulting with adeadly weapon my client.” (2006-DCR-Avol.008,p.25,lines 1-10)[Defense closing] *** “What happens after that? He gets indicted. What does he do? He pleads guilty and is sent to prison for that. He is sent to prison. So this case is such a contradiction in itself. They're telling you, "We believed her wholeheartedly back two or three years ago. We believed her. We believed her so much that we sent the man to prison for it," okay? You're going to have that evidence, ladies and gentlemen. Now they're telling you today, "Don't believe her. It didn't happen. It doesn't make sense. Her story doesn't make sense." I'm going to tell you, ladies and gentlemen, right now, I do not understand why we're here today. I do notunderstand why we're hereto day.” (2006-DCR-Avol.008,p.25,line 23-p.26,line 11)[Defense closing]INITIAL BRIEF - 20

In Crutcher , a fellow under-keeper said that the mob had laid hold of him and Crutcher and compelled the m to go break the machines. In Gonzalez, it was uncontradicted that a magistrate had believed her f ear and issued an emergency protective order: “She told you she was in fear for her life. What more do you want? An emergency protective order was issued on her behalf. What does that mean? That means that a magistrate judge, who's been a magistrate for over 32 years, issued an emergency protective order to protect her from future violence.” (2006-DCR-A-vol.008,p.29)[Defense closing]
Crutcherwas a report of a trial, rather than an appellate opinion, but it is instructive because inboth Crutcher andGonzalez , someone other than the defendant testified about the defendant’s fear. In determinin g if the defendant carried her burden to prove the affirmative defense of duress by a preponderance of the evidenc e, the Court of Appeals should note that the State’s own magistrate found her fear to be well founded and ac ted accordingly in issuing a protective order. There was testimony about the threats: ”That is precisely what happened in thisINITIAL BRIEF - 21

case. That is exactly what happened in this case. She was beat with this gun, and she was made to hold these this contraband and the gun under duress.”(2006-DCR-A-vol.008,p.29)[Defense closing] The state’s own witness, Officer Camacho, testifiedthat a victim of domestic violence is under duress. “I asked him, in your opinion, professional opinion, is someone that is the victim of an assault under duress? He said, yeah, absolutely. A victim of an assault is a victim of duress.”(2006- DCR-A-vol.008,p.35)[Defense closing] Considering that the State’s own Magistrate believe d Defendant’s fear and acted upon that belief and iss ued a protective order, that the State’s own officer, Off icer Camacho, testified that the victim of domestic viol ence was under duress, and considering that the very prosecutor who prosecuted Young Woman, Ms. Gonzalez , had believed her and prosecuted the boyfriend for aggra vated assault on her, and that the boyfriend had admittedthe aggravated assault, and that a state judge had acce pted the admission and sentenced the boyfriend to the penitentiary, and further considering that the defe ndant said that the boyfriend had threatened her if she d id not say that the gun and the drugs were hers, a rationa l juryINITIAL BRIEF - 22

could not have found against the defendant on the i ssue of duress, an affirmative defense. When a rational jury could not have reached a parti cular verdict upon stated evidence, the verdict is irrati onal and it is a violation of federal due process to dep rive one of her liberty predicated upon such an irration al verdict. Jackson v. Virginia ,443 U.S.307(1979)
The Jacksonrationality standard applies to the review of proof of duress as an affirmative defense

. Belt
v. State ,485 S.W.2d39,42hn2(Ga.App.1997,no pet.) “Belt's two enumerations challenging the sufficiency of the evidence are reviewed under the standard of Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560*** This testimony contradicted Belt's claim of duress. Under the Jackson v. Virginia standard, a rational trier of fact could find appellant guilty of the offenses charged beyond Belt's participation and conduct as a party to these crimes.” Belt v. State ,485 S.W.2d39,42hn2(Ga.App.1997,no pet.) The affirmative defense of duress negates an elemen t of t h e o f f e n s e . P e o p l e v . Keating ,174Cal.Rptr.286(Cal.App.[1st Dist.{4th Div.}]1981,no pet.) The “defense of duress is a fac tualINITIAL BRIEF - 23

contention, which if proven, tends to negate an ele ment o f t h e c h a r g e d c r i m e . ” P e o p l e v . Keating ,174Cal.Rptr.286,294fn1(Cal.App.[1st Dist.{4th Div.}]1981,no pet.)INITIAL BRIEF - 24

Pursuant to Tex. R. App. Proc. 38.1(I), Appellant provides a short conclusion that clearly states the nature of the relief sought:

CONCLUSION AND REQUEST FOR RELIEF The Court of Appeals should conclude that a failure of proof on the affirmative defense of duress negates an element of the offense, that a rational jury could not have found against the defendant on the issue of du ress, an affirmative defense. The Court of Appeals should acquit defendant. Respectfully submitted, /s/Larry Warner Larry Warner, Counsel for Appellant 3109 Banyan Circle

Harlingen,Tx 78550 Phone 956 230 0361; Fax 866 408 1968 Tex.State Bar# 20871500 Usdc,Stdx# 1230 office@larrywarner.com website: larrywarner.com Member, Bar of the Supreme Court of the United States(1984) Board Certified, Criminal Law Texas Board of Legal Specialization(1983)INITIAL BRIEF - 25 CERTIFICATE OF SERVICE I certify that I had delivered a copy of the forego ing Appellant’s Initial Brief via fax to the following counsel of record on this 18th day of February, 201 5 to the District Attorney’s office at 964 E. Harrison S treet, 2nd Floor, Brownsville, Texas 78520. Fax: 1-956-544 -0869. Respectfully Submitted, February 18, 2015. /s/Larry Warner Larry Warner, Counsel for Appellant

Certificate Of Compliance I certify that this brief complies with TEX.R.APP.9 (i) (2)(B) and was prepared using WordPerfect X3, font in Courier New 14pt. And contains 3100 words as counte d by the WordCount Tool of this software program. Respectfully Submitted, February 18, 2015. /s/Larry Warner Larry Warner, Counsel for Appellant