CAUSE NO. PD- 1467

- 14
IN THE 

### COURT OF CRIMINAL APPEALS OF TEXAS

______________________________ STEPHEN CRAIG WHITWORTH Appellant/Petitioner
V. STATE OF TEXAS

Appellee/Respondent

_____________________________ From the Eleventh Court of Appeals, Eastland, Texas Appellate Cause No. 11

- 12

- 00114

- CR Tried in the 441 st District Court, Midland County, Texas

Trial Cause No. CR38839

______________________________________ STATE’S REPLY TO PETITION FOR DISCRETIONARY REVIEW

______________________________ Teresa Clingman District Attorney, Midland County, Texas

Carolyn D. Thurmond Assistant District Attorney State Bar No. 00785104 500 North Loraine, Suite 200 Midland, Texas 79701 (432) 688-4420 voice (432) 688-4938 fax carolyn_thurmond@co.midland.tx.us PD-1467-14 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 12/30/2014 2:34:23 PM Accepted 12/31/2014 11:11:28 AM

ABEL ACOSTA CLERKii



### LIST OF PARTIES AND THEIR COUNSEL
Pursuant to T EX
. R. A PP
. P. 38.1( a), the State certifies the following is a complete list of the names and addresses of the parties to the final judgm ent of trial and their counsel. Appellant, Trial and Appellate Counsel

 Stephen Craig Whitworth, Appellant Inmate, Texas Department of Criminal Justice

 David Martinez Attorney at Law 1663 Broadway Lubbock, Texas 79401 Appellate Counsel

 Rick A. Navarrete NAVARRETE & SCHWARTZ 1007 West Texas Avenue Midland, Texas 79701 Former Appellate Counsel

 Roy Scott Attorney at Law 407 N. Big Spring St., Ste. 200 Midland, Texas 79701 Trial Counseliii

State of Texas Trial Counsel and Appellate Counsel

 The State of Texas, Appellee / Petitioner

 Teresa Clingman District Attorney for Midland County, Texas 500 N. Loraine, Ste. 200 Midland, Texas 79701

 Laura Nodolf

, First Assistant District Attorney 500 N. Loraine, Ste. 200 Midland, Texas 79701 Trial Counsel

 Carolyn D. Thurmond , Assistant District Attorney 500 N. Loraine, Ste. 200 Midland, Texas 79701 Appellate Counsel Trial Judge

 Hon. Rodney W. Satterwhite 441 st District of Midland County, Texas 500 N. Loraine, Ste. 901 Midland, Texas 79701iv



### TABLE OF CONTENTS

Table of Contents
LIST OF PARTIES AND THEIR COUNSEL

................................ ........... ii
TABLE OF CONTENTS

................................ ................................ .......... iv
INDEX OF AUTHORITIES

................................ ................................ ...... v
STA TEMENT REGARDING ORAL ARGUMENT

................................ .. 2
STATEMENT OF THE CASE

................................ ................................ .. 2
STATEMENT OF PROCEDURAL HISTORY

................................ ......... 3
STATE’S REPLY TO GROUND FOR REVIEW

................................ ....... 4
ARGUMENT

................................ ................................ ............................. 4 A. Appellant’s Contentions in his Petition

................................ ........ 4 B. Standard of Review

................................ ................................ ........ 5 C. State’s Response to the Duress Defense

................................ ....... 5 D. State’s Response to the Necessity Defense

................................ ... 8
PRAYER FO R RELIEF

................................ ................................ ............. 9
CERTIFICATE OF SERVICE

................................ ................................ . 10
CERTIFICATE OF COMPLIANCE

................................ ........................ 11v



### INDEX OF AUTHORITIES

Cases Anguish v. State , 991 S.W.2d 883 (Tex. App.

— Houston [1 st Dist.] 1999, pet. ref’d)

................................ ................................ ................................ 6 Bernal v. State , 647 S.W.2d 699, 706 (Tex. App.

– San Antonio 1982, no pet.)

................................ ................................ ................................ ........ 8 Cameron v. State, 925 S.W.2d 246 (Tex. App.

– El Paso, 1995, no pet.)

.. 7 Muniz v. State , 851 S.W.2d 238 (Tex. Crim. App. 1993)

.......................... 5 Murkledove v. State , 437 S.W.3d 17 (Tex. App.

— Fort Worth 2014, p et. dism’d)

................................ ................................ ................................ .... 7 Pennington v. State , 54 S.W.3d 852, 856 (Tex. App.

— Fort Worth 2001, pet. ref’d).

................................ ................................ ............................... 5 Ramirez v. State , 336 S.W.3d 846 (Tex. App.

— Amarillo 2011, pet. ref’d).

................................ ................................ ................................ ................ 6 Whitworth v. State , 11

- 12

- 00114

- CR, 2014 Tex. App. LEXIS 5864 (Tex. App.

— Eastland 201 4)

................................ ................................ ............ 3 Whitworth v. State , 11

- 12

- 00114

- CR , 2014 Tex. App. LEXIS 10922 (Tex. App.

— Eastland 2014)

................................ ................................ ... 4

Statutes
T EX
. P ENAL C ODE A NN
. § 19.02( b)(1) (2011)

................................ .............. 2
T EX
. P ENAL C ODE A NN
. § 19.02( b)(2) (2011)

................................ .............. 2
T EX
. P ENAL C ODE A NN
. § 22.02( a)(1) (2011)

................................ .............. 2vi

T EX
. P ENAL C ODE A NN
. § 22.02( a)(2) (2011)

................................ .............. 2
T EX
. P ENAL C ODE A NN
. § 8.05 (a) (2011)

................................ ..................... 6
T EX
. P ENAL C ODE A NN
. § 8.05 (c) (2011)

................................ ..................... 6
T EX
. P ENAL C ODE A NN
. § 8.05 (d) (2011).

................................ .................... 6
Rules
T EX
. R. A PP
. P. 38.1( a),

................................ ................................ ............... ii
T EX
. R. A PP
. P. 68.4( h ).

................................ ................................ .............. 91 CAUSE NO. PD

- 1467

- 14
IN THE 

### COURT OF CRIMINAL APPEALS OF TEXAS

______________________________ STEPHEN CRAIG WHITWORTH

Appellant/Petitioner
V. STATE OF TEXAS

Appellee/ Respondent

_____________________________ STATE’S REPLY TO PETITION FOR DISCRETIONARY REVIEW

______________________________

COMES NOW the State of Texas, by and through her District Attorney, and resp ectfully asks this Honorable Court to deny discretionary review as requested by the Petitioner in the above named cause and pursuant thereof would show the Court as follows:2



### STATEMENT REGARDING ORAL ARGUMENT The State requests oral argument. The issues raised by both parties involve defenses of duress and necessity and the circumstances of the propriety for the trial court to instruct to the jury concerning these defenses. Oral argument is necessary in this ca se for full development of these issues.



### STATEMENT OF THE CASE Stephen Craig Whitworth, hereafter referred to as “ Appellant ,” was indicted in the 441st District Court of Midland County, Texas, on August 11, 2011 , for the offense s of Murder of Christopher Easley in Count 1, and Count 2 Aggravated Assault with the intent to cause serious bodily injury to Anne Bostic. ( CR 1 8

- 10 ). See T EX
. P ENAL C ODE A NN
. § 19.02( b)(1) (2011) , T EX
. P ENAL C ODE A NN
. § 19.02( b)(2) (2011),
T EX
. P ENAL C ODE A NN
. § 22.02( a)( 1 ) ( 2011 ) , T EX
. P ENAL C ODE A NN
. § 22.02( a)( 2 ) (2011)

. Trial before a jury was held ; and , prior to submission of the case to the jury, Appellant requested the instructions of duress

1 References to the Clerk’s Record are abbreviated as “CR”, followed by the page number.3

and necessity for both counts. (RR 2 8 305; RR9 7 ). The trial court denied the requested instructions. (RR8 308). Appellant was convicted of both
counts. (CR 80, 82; RR 9 60

- 61). The same jury assessed punishment at 20 years imprisonment for each count. ( C R 95, 96; RR10 72

- 73)

. A ppellant timely gave notice of appeal. (CR 65 ).



### STATEMENT OF PROCEDURAL HISTORY Four points of error were presented on direct appeal. On May 30, 2014, the Eleventh Court of Appeals affirmed Appellant’s conviction for murder in Count One. Whitworth v. State , 11

- 12

- 00114

- CR, 2014 Tex. App. LEXIS 5864, *11 (Tex. App.

— Eastland 2014, pet. filed) (mem. op. on reh’g, not designated for publication). The Court reversed Appellant’s conviction in Count Two for aggr avated assault and remanded the case back to the trial court for a new trial. Id. at *18. Appellant requested a rehearing to review the sufficiency of the evidence under the law of parties as to Count One. The State did not file a motion for rehearing as to the decision in Count Two. The Court of Appeals directed the State to file a response. On September 30, 2014,

2 References to the Reporter’s Record are abbreviated as “RR” followed by th e volume number and page number.4

the Court of Appeals denied the Motion for Rehearing and issued a memorandum opinion finding the evidence was sufficient to support Appellant’s convicti on for murder under the law of parties. Id. at *3.



### STATE’S REPL Y TO GROUND FOR REVIEW Appellant did not admit to conduct to make hi m liable to the offense of murder as a principal or party. Thus, t he Court of Appeals did not err in its affirmance of the trial court’s ruling to deny instructions on the defense s of duress and necessity
.



### ARGUMENT A. A p p e l l a n t ’ s C o n t e n t i o n s i n h i s P e t i t i o n Appe llant c o n t e n d s i n h i s g r o u n d f o r r e view the Court of Appeals erred in affirming the trial court ’ s denial of an instruction of the defense of duress

. In the argument portion of his petition, Appellant contends he was entitled to jury instructions on defenses of duress and necessity. Appellant relies on the testimony of the assault victim , Ann Bostic (hereafter referred to as “ Bostic ” ) and informant Devan Bomar (hereafter referred to as “ Bomar ” ) , to provide evidence he was guilty of murder as a party and therefore entitled to instruction s on defense and necessity.5

B. Standard of Review It is well settled that a defendant is entitled to an instruction on every defensive issue raised by the evidence, regardless of whether that evidence is strong, feeble, unimpeached, or contradicted. Walters v. State , 247 S.W.3d 204, 209 (Tex. Crim. App. 2007). If the issue is raised by a party, refusal to submit the requested the requested instruction is reviewed under the abuse of discretion standard. See Muniz v. State , 851 S.W.2d 238, 254 (Tex. Crim. App. 1993) . The evidence submitted in support of a justification defense is reviewed in the light most favorable to the defendant. See Pennington v. State , 54 S.W.3d 852, 856 (Tex. App.

— Fort Worth 2001, pet. ref’d).

C. State ’ s Response to the Duress Defense Appellant argued in his Petition fo r the duress instruction that
Bomar ’ s and Bostic ’ s testimony “ presented some evidence to show that he enga ged in conduct to commit the offense of murder as a party, because compelled to do s o because of threat of imm inent death or serious bodily injury. ” (Petition for Discretionary Review p. 5). The duress defense is available if “the actor engaged in the proscribed conduct because he was compelled to do by threat of imminent death or6

serious bodily injury to himself or another.” T EX
. P ENAL C ODE A NN
. §
8.05 (a) (2011) . Compulsion “exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.” T EX
. P ENAL C ODE A NN
. § 8.05 (c) (2011) . Furthermore, the defense is unavailable if the actor, “intentionally, knowingly, or recklessly placed himself in a situation in which it was probable he would be subject ed to the compulsion.” T EX
. P ENAL C ODE A NN
. § 8.05 (d) (2011). In order to raise the defense of duress , the evidence must show both compulsion and immediacy. There are two components to immediacy. Anguish v. State , 991 S.W.2d 883, 886

- 887 (Tex. App.

— Houston [1 st Dist.] 1999, pet. ref’d) . First, the person making the threat must intend and be prepared to carry out the t hreat immediately. Second, carrying out the threat must be predicated upon the threatened person’s failure to commit the charged offense immediately. Id. ; Ramirez v. State , 336 S.W.3d 846, 851 (Tex. App.

— Amarillo 2011, pet. ref’d) . Furthermore, to avail oneself of the defense the accused must admit to having engaged in the proscribed conduct. Ra mirez , 336 S.W.3d at 851.7

There is no evidence in the record that Paul Curtis Lee (hereafter referred to as “ Lee ” ) threatened Appellant prior to the attack in which Lee bludgeoned and stabbed Christopher Easley (hereafter referred to

as “ Easley ” ) to death. T here is not any objective evidence in the record that during the attack on Easley that Lee said anything or threatened Appellant to hold Bostic b ack. No evi dence exists in the record in which any inference of a threat by Lee toward s Appellant was imminent such that he would be compelled to participate in the murder of Easley. The evidence at trial showed Appellant mentioned in his statement to Sheriff’s Investigator Hunnicutt that he was afraid of Lee because he could overpower him. (RR6 156). Appellant also said he was afraid of Lee because of his alleged connection to the Texas Syndicate. (RR6 156). The claim of duress must have an objective reasonable basis. See Murkledove v. State , 437 S.W.3d 17 (Tex. App.

— Fort Worth 2014, pet. dism’d) ( Even if defendant feared the possibility of or potential harm to himself or his family, no evidence existed upon which an infere nce could be made that harm was imminent when he decided to act)

. Cameron v. State, 925 S.W.2d 246, 250 (Tex . A pp . – El Paso, 1995, no pet.) ( Defendant generally afraid of co

- defendant’s temper, there is8

no evidence of a specific threat). Bernal v. State , 647 S.W.2 d 699, 706 (Tex. App.

– San Antonio 1982, no pet.) ( F ear that co

- defendant might get violent if defendant did not ‘take his turn” in rape held insufficient to raise defense of duress). As there was not any evide nce of an imminent threat, the Eleventh Court of Appeal s was correct in its ruling Appellant was no t entitled to an instruction on the defense of duress. The trial court did
not er r to deny the requested instruction.

D
. State ’ s Response to the Necessity Defense Appellant does not present an argument as to the applicability of the necessity defense. The Petition contains a general statement in reference to the Memorandum Opinion on Motion for Rehearing published September 30, 2014, in which the Court of Appeals found the evidence was sufficient to convict the Petit ioner as a party to murder. However, attorney for the State is unable to discern any analysis in the Petition of how the evidence warrants an in struction on the necessity defense

. Rather than guess Appellant ’ s argument, the State submits Rule of Appellate Procedure 68.4(h) applies to this situation. “ A petition must contain a d i r e c t and concise argument , w i t h s u p p o r t i n g9

a u t h o r i ties, amplifying the reasons for granting review. ” T EX
. R. A PP
. P.
6 8

. 4 ( h )

. Appe llant has not provided any reasons to argue his contention that the finding by the Court of App eals the evidence is sufficient support the conviction for murder warrants a necessity defense instruction. The State submits this issue is not adequately presented for review.



### PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, the State prays the Court of Criminal Appeals deny Petitioner’s Petition for Discretionary Review. Respectfully submitted, Teresa Clingman District Attorney of M idland County, Texas By: /S/ Carolyn D. Thurmond Carolyn D. Thurmond Assistant District Attorney State Bar No. 00785104 500 North Loraine, Suite 200 Midland, Texas 79701 (432) 688

- 4938 fax (432) 688

- 4420 voice carolyn_thurmond@co.midland.tx.us10



### CERTIFICATE OF SERVICE I, Carolyn D. Thurmond, do hereby certify that on the 30th day of December 2014, I sent a true and correct copy of the foregoing State’s Reply to Petition for Discretionary Review was sent by United States Mail, hand delivery or ESe rve or email to the following entities:

Lisa McMinn State Prosecuting Attorney P.O. Box 13046 Capitol Station Austin, TX 78711 Information@spa.texas.gov David Martinez Attorney at Law 1663 Broadway Lubbock, Texas 79401 Email: dmtz@aol.com Attorney for Appellant /S/ Carolyn D. Thurmond

_____________________________ Carolyn D. Thurmond Assistant District Attorney11



### CERTIFICATE OF COMPLIANCE I certify the State’s Reply to Petition for Discretionary Review was prepared with Microsoft Word 2010 and that according to that program’s word

- count function, the sections covered by T EX
. R. A PP
. P.
9 .4(i)(1) contain 1 , 0 5 6 words. I further certify the body text is Century Schoolbook 14 point font and the footnote text is 12 point font. By: /S/ Carolyn D. Thurmond

____________________________ Carolyn D. Thurmond Assistant District Attorney