No. 01-14-01016-CR

In the 

Court of Appeals 

For the 

First District of Texas 

At Houston 



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

ACCEPTED

01-14-01016-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

7/22/2015 3:28:19 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 7/22/2015 3:28:19 PM CHRISTOPHER A. PRINE Clerk
i

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
ii

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
iii

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
iv

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
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
2

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 
3

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 
4

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.
5

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). 
6

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).
7

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 
8

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). 
9

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 
10

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).
11

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 selfdefense should have included multiple assailants because the evidence showed a 

particular group of people attacking the defendant) (citing Matthews v. State, 582 
12

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 
13

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 crossexamination 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 
14

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”).
15

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 
16

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
17

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