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 441st 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

CLERK
ii

LIST OF PARTIES AND THEIR COUNSEL

Pursuant to TEX. R. APP. P. 38.1(a), the State certifies the 

following is a complete list of the names and addresses of the parties to 

the final judgment 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 Counsel
iii

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

441st District of Midland County, Texas

500 N. Loraine, Ste. 901

Midland, Texas 79701
iv

TABLE OF CONTENTS

Table of Contents

LIST OF PARTIES AND THEIR COUNSEL...........................................ii

TABLE OF CONTENTS ..........................................................................iv

INDEX OF AUTHORITIES......................................................................v

STATEMENT 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 FOR RELIEF.............................................................................9

CERTIFICATE OF SERVICE.................................................................10

CERTIFICATE OF COMPLIANCE........................................................11
v

INDEX OF AUTHORITIES

Cases

Anguish v. State, 991 S.W.2d 883 (Tex. App.—Houston [1st 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, pet. 

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 2014)............................................................................3

Whitworth v. State, 11-12-00114-CR , 2014 Tex. App. LEXIS 10922 

(Tex. App.—Eastland 2014)...................................................................4

Statutes

TEX. PENAL CODE ANN. § 19.02(b)(1) (2011) ..............................................2

TEX. PENAL CODE ANN. § 19.02(b)(2) (2011) ..............................................2

TEX. PENAL CODE ANN. § 22.02(a)(1) (2011) ..............................................2
vi

TEX. PENAL CODE ANN. § 22.02(a)(2) (2011) ..............................................2

TEX. PENAL CODE ANN. § 8.05(a) (2011).....................................................6

TEX. PENAL CODE ANN. § 8.05(c) (2011).....................................................6

TEX. PENAL CODE ANN. § 8.05(d) (2011).....................................................6

Rules

TEX. R. APP. P. 38.1(a),...............................................................................ii

TEX. R. APP. P. 68.4(h). ..............................................................................9
1

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 respectfully 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 case 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 offenses of Murder of Christopher Easley in 

Count 1, and Count 2 Aggravated Assault with the intent to cause 

serious bodily injury to Anne Bostic. (CR1 8-10). See TEX. PENAL CODE 

ANN. § 19.02(b)(1) (2011), TEX. PENAL CODE ANN. § 19.02(b)(2) (2011),

TEX. PENAL CODE ANN. § 22.02(a)(1) (2011), TEX. PENAL CODE ANN. §

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. (RR28 305; RR9 7). The trial court denied 

the requested instructions. (RR8 308). Appellant was convicted of both 

counts. (CR 80, 82; RR9 60-61). The same jury assessed punishment at 

20 years imprisonment for each count. (CR 95, 96; RR10 72-73). 

Appellant 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 aggravated 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 the 

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 conviction for murder under the law of parties. Id. at *3. 

STATE’S REPLY TO GROUND FOR REVIEW

Appellant did not admit to conduct to make him liable to 

the offense of murder as a principal or party. Thus, the 

Court of Appeals did not err in its affirmance of the trial 

court’s ruling to deny instructions on the defenses of 

duress and necessity.

ARGUMENT

A. Appellant’s Contentions in his Petition

Appellant contends in his ground for review 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 instructions 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 for the duress instruction that 

Bomar’s and Bostic’s testimony “presented some evidence to show that 

he engaged in conduct to commit the offense of murder as a party, 

because compelled to do so because of threat of imminent 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 or 
6

serious bodily injury to himself or another.” TEX. PENAL CODE ANN. §

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.” TEX. PENAL CODE ANN. § 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 subjected to the compulsion.” TEX. PENAL CODE ANN. § 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 [1st Dist.] 1999, pet. ref’d). First, the person making the threat 

must intend and be prepared to carry out the threat 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. Ramirez, 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. There is not any objective evidence in the record 

that during the attack on Easley that Lee said anything or threatened 

Appellant to hold Bostic back. No evidence exists in the record in which 

any inference of a threat by Lee towards 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 

inference could be made that harm was imminent when he decided to 

act). Cameron v. State, 925 S.W.2d 246, 250 (Tex. App. – El Paso, 1995, 

no pet.) (Defendant generally afraid of co-defendant’s temper, there is 
8

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

(Tex. App. – San Antonio 1982, no pet.) (Fear 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 evidence of an imminent threat, the 

Eleventh Court of Appeals was correct in its ruling Appellant was not 

entitled to an instruction on the defense of duress. The trial court did 

not err 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 Petitioner 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 instruction 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 direct and concise argument, with supporting
9

authorities, amplifying the reasons for granting review.” TEX. R. APP. P.

68.4(h). Appellant has not provided any reasons to argue his contention 

that the finding by the Court of Appeals 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 Midland 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.us
10

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 EServe 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 Attorney
11

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 TEX. R. APP. P.

9.4(i)(1) contain 1,056 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