Opinion filed May 30, 2014

In The

Eleventh Court of Appeals __________

No. 11-12-00114-CR

__________

STEPHEN CRAIG WHITWORTH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 441st District Court

Midland County, Texas

Trial Court Cause No. CR38839

M E M O R A N D U M O P I N I O N

The jury convicted Stephen Craig Whitworth of murder and aggravated

assault with a deadly weapon. See TEX. PENAL CODE ANN. §§ 7.01 (parties to 

offenses), 7.02 (criminal responsibility for conduct of another), 19.02(b)(1), (2)

(murder), 22.02(a) (aggravated assault) (West 2011). The jury assessed his 

punishment at confinement for twenty years on each count. The trial court 
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sentenced him accordingly and ordered his sentences to run concurrently. 

Appellant raises four issues on appeal. Because we find that the trial court erred 

when it failed to instruct the jury on the defense of duress as to the aggravated 

assault charge, we reverse and remand with respect to Appellant’s conviction for 

aggravated assault with a deadly weapon. We affirm Appellant’s conviction for 

murder.

The evidence at trial showed that Appellant and Paul Lee picked up Anne 

Bostic and Chris Easley at approximately 4:00 a.m. on June 6 to go smoke 

marihuana. Lee drove the four of them to a shut-down pump jack in Midland. 

Bostic testified that, after the four of them finished smoking a marihuana blunt, 

Lee called Easley to the trunk of the car and said he wanted to show Easley

something. Easley walked to the rear of the car. Bostic was sitting sideways in the 

rear seat on the driver’s side with her feet hanging out of the car when she heard 

the trunk slam and someone get hit. She stood up and saw Easley’s legs on the 

ground. Lee was kneeling over the top of Easley and hitting him multiple times. 

Lee stopped, and Bostic could hear Easley gargling and wheezing. Lee went back

to Easley, and Bostic could hear air escaping from Easley’s lungs, like he had been 

stabbed.

Easley suffered four crushing blows to his face and four stab wounds to his 

chest. His heart was perforated by two of the stab wounds, and bone fragments 

penetrated his brain due to the crushing blows to his forehead; he died as a result of 

the injuries. There was no dispute that Lee killed Easley.

Bostic testified that, as Lee was attacking Easley, Appellant held her and 

forced her to watch the murder. She said that Appellant told her that she needed to 

watch and that Easley needed to be taught a lesson. Appellant took her to the front 

of the car, and she asked him if they were going to hurt her. He told her that they 

were not going to hurt her but that they were going to have to take her somewhere 
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and that she could not talk to anyone for six months. Bostic testified that 

Appellant left her at the front of the car and went and talked to Lee. When she 

started walking away, Appellant came up behind her, started choking her, and 

popped her neck. Bostic let her body go limp, and she fell to the ground and 

“played dead.” Appellant dragged her over to a bush at the place where he had 

already dragged Easley. Bostic heard him say, “She’s dead. It’s okay. She’s 

dead.” Bostic then heard footsteps coming toward her. Someone lifted her head 

by her hair and cut her throat. She felt blood pouring out of her throat and felt a 

hand on her back. Bostic testified that she passed out, woke up next to Easley, and 

heard Lee and Appellant getting in Lee’s car and leaving. She waited until the sun 

came up and started walking down the road.

Bostic was able to get back to the main road where a man saw her running 

and waving her hands as if she was in need of help. The man stopped to help her, 

called 911, and gave her water and a shirt that she could use to stop the bleeding 

from her neck. Bostic was treated at Midland Memorial Hospital. She required 

immediate surgical intervention in order to survive. She had suffered major trauma 

to her neck; her internal jugular veins had been cut. Bostic also suffered multiple 

stab wounds to her torso.

Appellant testified that he, Lee, Bostic, and Easley were standing around the 

trunk of the car smoking marihuana when Lee, out of nowhere, attacked Easley 

with a set of bolt cutters that Lee had gotten from the trunk of the vehicle. 

Appellant testified that he did not try to stop Lee when Lee was hitting Easley 

because he knew that Lee could overpower him and that Lee had a weapon; he was 

afraid of Lee. He grabbed Bostic by her hand and walked her to the front of the 

car. Appellant made her sit on the car and face him. He told her not to watch and 

to stay calm. Both he and Bostic were “freaking out.” Appellant saw Lee hit 

Easley over and over again with the bolt cutters and saw Lee stab Easley in the 
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neck and in the chest. He did not want to run because Lee had the keys to the car 

and because he was afraid Lee would chase him down in the car. He also did not 

want to leave Bostic and did not think she would be able to run because Easley had 

had to help her to the car when Lee and Appellant picked them up to go smoke 

marihuana. 

After Lee had killed Easley, he walked over to Appellant and told him that 

he needed to get rid of Easley’s body. Appellant, according to his testimony, just 

stood there. Lee gave Appellant “a look” and again told him to get rid of the body. 

Appellant walked to the back of the vehicle and was horrified and shocked by what 

he saw. He was scared of what Lee could do to him and Bostic after he saw what 

Lee had done to Easley. Lee told him again to get rid of the body, and because 

Appellant did not want Lee to kill him, Appellant dragged Easley to a nearby bush. 

Appellant went back to check on Bostic.

Lee asked to see Appellant’s cell phone, and he typed a message on 

Appellant’s phone that said it was Appellant’s turn to finish Bostic and, if he did 

not finish her, he would be next. Appellant testified that he believed that meant, if 

he did not kill Bostic, Lee would kill him. Appellant took Bostic fifty feet away 

from the vehicle and pretended to break her neck by putting her in a choke hold

and cracking his knuckles loudly. He testified that he was trying to make her pass 

out. Her body went limp, and he put her on the ground. He told Lee that she was 

dead. Lee said, “She’s still breathing. You’ve got to stab her.” Appellant told Lee 

that he could not do that and tried to convince Lee that he had broken her neck and 

that she was already dead. Lee told Appellant to give him his knife. Appellant 

testified that he was scared and that Lee had this look on his face like he was going 

to do something to Appellant if he did not comply. Appellant gave Lee his knife,

and Lee stabbed Bostic four times in the back. Lee then told Appellant to help 

move her body next to Easley’s body. The two moved her body and started 
5

walking away. Lee began to have second thoughts about Bostic being alive. 

Appellant again tried to convince him that she was dead and that he should just 

leave her alone. Lee walked back to her body and stabbed her in the neck.

Lee and Appellant went back to the Travelodge where they were living at 

the time, and Lee ordered him to take a shower. Appellant testified that he started 

taking sleeping pills in an effort to overdose because he did not want to live after 

what he had seen. He then decided that he still needed to tell the police what had 

happened, so he stopped taking the pills. After they had showered and picked up 

their roommate from work, Lee told Appellant that Appellant had to go with him to 

get rid of the clothes that they had been wearing. They drove to a dirt road and set 

the clothes on fire. Appellant and Lee then returned to the Travelodge and went to 

sleep. Appellant testified that he could not leave because Lee was watching him 

and never let him out of his sight. He tried to stay awake until Lee fell asleep, but 

the sleeping pills made him fall asleep first. Appellant was later awakened by 

Midland County Sheriff’s officers, and they apprehended him and Lee.

In his first issue, Appellant argues that the evidence was insufficient to 

support his conviction as the principal actor for the murder of Easley and the

aggravated assault with a deadly weapon of Bostic. He specifically argues that the 

State failed to prove that Appellant himself, as the principal actor, personally 

committed either of the charged felonies. Appellant asserts that the State relied on 

the law of parties to convict Appellant; however, Appellant does not challenge the 

sufficiency of the evidence to support his convictions of murder and aggravated 

assault with a deadly weapon based upon the law of parties. The jury was 

instructed under both principal and party theories as to each charge and returned a 

general verdict of guilty on each. Even if we were to agree that the evidence was 

insufficient to support the convictions of Appellant as a principal actor, he has 

failed to challenge the sufficiency of the evidence under the law of parties and has 
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repeatedly stated in his brief that the jury could have convicted him only on the 

basis of the law of parties. Therefore, we overrule Appellant’s first issue.

Appellant asserts in his third and fourth issues that the trial court erred when 

it denied his request for a jury instruction on the defense of duress and the defense 

of necessity. When the evidence at trial raises a defensive issue, and the defendant 

properly requests a jury instruction on that issue, the trial court must submit the 

issue to the jury. Booth v. State, 679 S.W.2d 498, 500 (Tex. Crim. App. 1984). 

“[A] defense is supported (or raised) by the evidence if there is some evidence, 

from any source, on each element of the defense that, if believed by the jury, 

would support a rational inference that that element is true.” Shaw v. State, 243 

S.W.3d 647, 657–58 (Tex. Crim. App. 2007). When determining whether the 

evidence raises a defense, the credibility of the evidence is not at issue; the 

evidence may be strong, weak, contradicted, unimpeached, or unbelievable. Muniz 

v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993).

The doctrine of confession and avoidance applies to the defense of duress

and the defense of necessity. Juarez v. State, 308 S.W.3d 398, 399 (Tex. Crim. 

App. 2010) (necessity); Gomez v. State, 380 S.W.3d 830, 834 (Tex. App.—

Houston [14th Dist.] 2012, pet. ref’d) (duress). Thus, to be entitled to an 

instruction on the defense of duress, Appellant must point to defensive evidence 

that shows that he admits to every element of the offense, including the culpable 

mental state. Shaw, 243 S.W.3d at 659.

The State argues that Appellant did not admit to the charged 

conduct: murder and aggravated assault with a deadly weapon. Although the State 

is correct in this assertion as far as Appellant’s involvement as a principal is 

concerned, Appellant did admit to conduct that could implicate him as a party to 

the offense of aggravated assault with a deadly weapon. A person can be held 

criminally responsible as a party to an offense, even when the person does not 
7

commit the actual offense, if the person is criminally responsible for the act of 

another. See TEX. PENAL CODE ANN. § 7.01 (West 2011). A person is criminally 

responsible for an offense committed by the conduct of another if, with the intent 

to promote or assist the commission of the offense, the person solicits, encourages, 

directs, aids, or attempts to aid the other person to commit the offense. Id.

§ 7.02(a)(2). 

The State argues that Appellant denied assisting in the offense as a party 

because, when specifically asked whether he solicited, encouraged, directed, aided, 

or attempted to aid Lee in murdering Easley or in assaulting Bostic, he responded 

that he did not. However, Appellant testified that, when Lee told him to stab 

Bostic and he responded that he could not do that, Lee demanded Appellant’s

knife. Appellant handed Lee his knife, and Lee stabbed Bostic. In addition, in his 

statement to police, Appellant said that he told Lee that Bostic was still breathing 

and that he told Lee to “finish her.” Thus, although Appellant never admitted to 

actually stabbing Bostic or to committing the specific acts as listed in the statute, 

he did admit to conduct that showed that he aided and encouraged Lee to commit 

the offense of aggravated assault with a deadly weapon. 

We do not believe, however, that Appellant admitted to conduct that would 

implicate him as a party to the offense of murder. The only act in relation to the 

murder of Easley that Appellant admitted to was that he dragged Easley’s body to 

a bush after Lee told him multiple times to do so. This conduct occurred after Lee 

had already committed the offense of murder. Acts done after the offense is 

completed do not make the accused a party to the offense. Gross v. State, 380 

S.W.3d 181, 185–88 (Tex. Crim. App. 2012); Morrison v. State, 608 S.W.2d 233, 

235 (Tex. Crim. App. 1980). Thus, Appellant did not admit to conduct that made 

him liable as a party to the offense of murder. The trial court did not err when it 

denied Appellant’s request for an instruction on the defenses of duress and 
8

necessity as to the charge of murder. We overrule Appellant’s third and fourth 

issues as to the murder charge.

As to the aggravated assault charge, we must now look to whether the 

evidence supports an instruction on the defense of duress. The affirmative defense 

of duress requires the actor to have engaged in the conduct because he was 

compelled to do so by threat of imminent death or serious bodily injury to himself 

or another. PENAL § 8.05(a). Compulsion “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). The affirmative defense of duress is not available if the 

actor “intentionally, knowingly, or recklessly placed himself in a situation in which 

it was probable that he would be subjected to compulsion.” Id. § 8.05(d).

Appellant testified that Lee typed a message on Appellant’s phone that said

that it was Appellant’s turn to finish Bostic and that, if he did not finish her, he 

would be next. Appellant believed that Lee meant that, if Appellant did not kill

Bostic, Lee would kill him. Appellant then pretended to kill her and told Lee that 

she was dead. When Lee told Appellant that she was still breathing and that 

Appellant needed to stab her, Appellant told Lee that he could not do that and tried 

to convince Lee that she was already dead. Lee called Appellant a “pussy” and 

told Appellant to give him his “f-----g” knife. Appellant testified that he was 

scared and that Lee had this look on his face like he was going to do something to 

Appellant if he did not comply. Appellant gave Lee his knife, and Lee stabbed 

Bostic. 

Appellant also testified that Lee had become more aggressive since he 

started selling marihuana. Lee was bigger and taller than Appellant and had 

overpowered him in several physical altercations. Appellant also testified that Lee

had connections with prison and street gangs and that he feared what Lee could do 

to him if he told the police what had happened. He explained that the reason he 
9

finally told police about what had happened was because he was moved to 

“segregation” in jail and realized that Lee could not get to him there.

After reviewing the relevant evidence, we find that the evidence does 

support an instruction on the defense of duress. Appellant testified that he 

pretended to kill Bostic because he was afraid Lee was going to kill him if he did 

not kill her and that he gave Lee his knife to stab Bostic because he was afraid of 

what Lee would do to him. In addition, Appellant’s testimony indicates that the 

incident with Bostic occurred after Appellant watched Lee kill Easley and after he 

was forced to drag Easley’s body to a bush—an act that he also testified he 

committed because he was in fear for his and Bostic’s lives. Thus, Appellant 

presented some evidence, regardless of how strong, weak, contradicted, 

unimpeached or unbelievable, to show that he engaged in conduct to aid and 

encourage Lee to commit the offense of aggravated assault against Bostic because 

he was compelled to do so by threat of imminent death or serious bodily injury. 

See Muniz, 851 S.W.2d at 254. 

The State argues that, even if the defense was raised in this case, Appellant 

was not entitled to an instruction because he placed himself in a situation in which 

it was probable for him to be subjected to compulsion. We disagree. The State 

directs us to Guia v. State, 220 S.W.3d 197 (Tex. App.—Dallas 2007, pet. ref’d),

and Guffey v. State, No. 11-10-00106-CR, 2012 WL 1470185 (Tex. App.—

Eastland April 26, 2012, pet. ref’d) (mem. op., not designated for publication), to 

support its argument. Each of these cases is distinguishable from the 

circumstances of this case. 

In Guia, the Dallas Court of Appeals was asked to review the sufficiency of 

the evidence to support the jury’s rejection of the defendant’s duress defense. 

Guia, 220 S.W.3d at 205. The court stated that it would “find the evidence 

factually sufficient to support the rejection of a claim of duress where the evidence 
10

shows that the defendant intentionally, knowingly, or recklessly placed himself in a 

situation in which it was probable that he would be subjected to compulsion.” Id. 

After reviewing the evidence, the court held that it could not conclude that the 

overwhelming weight of the evidence supported the defendant’s claim of duress. 

Id. The court in Guia did not hold that the defendant was not entitled to an 

instruction on duress but, rather, that the evidence was sufficient to support the 

jury’s rejection of the defense. Id. The question before us is not one of sufficiency 

of the evidence, but one addressed at entitlement to a jury issue. Furthermore, the 

defendant in that case claimed that he sold drugs to an undercover police officer 

only after the officer confronted him, armed with three guns. Id. However, the 

evidence showed that the officer gave the defendant money to buy drugs and that 

the defendant then took off. Id. at 200. The officer later found the defendant at his 

home and demanded that the defendant give him the drugs. Id. The officer had

already purchased drugs from the defendant at an earlier date. Id. at 200. The 

circumstances in Guia are very different from the facts of this case; Guia does not 

support the State’s argument that Appellant was not entitled to an instruction on 

the defense of duress.

In Guffey, we held that the defendant was not entitled to an instruction 

because the evidence showed that he was a member of the Aryan Brotherhood and 

that a higher ranking member commanded him to kidnap a woman that had just 

ended a romantic relationship with the higher ranking gang member. Guffey, 2012 

WL 1470185, at *1, 3. We explained that the defendant, through his membership 

in the Aryan Brotherhood, placed himself in a situation in which he would be 

obligated to carry out orders from higher ranking members and, thus, placed 

himself in a situation in which he would be subjected to compulsion. Id. at *3–4.

Here, the State contends that Appellant also placed himself in a situation in 

which he would be subjected to compulsion because Appellant continued to live 
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with and associate with a person that he believed had connections with organized 

crime, a person that had expressed a general desire to murder and rape someone, a 

person that had dealt and consumed drugs, and a person that was bigger than 

Appellant and could overpower him. These circumstances are very different from

the circumstances in Guffey in which the defendant was a member of a gang and,

through that membership, knew that he would have to take orders from higher 

ranking members. The evidence here did not show that Lee had ever threatened 

Appellant to act in a certain way or that Appellant was afraid that Lee would use

his prison gang connections against him prior to the murder and aggravated assault. 

Furthermore, we do not believe that Appellant’s testimony, that Lee had recently 

made the comment that Lee wanted to murder and rape someone, shows that 

Appellant placed himself in a situation in which he would be forced to commit 

such a heinous crime. Therefore, because we find that Appellant admitted to 

conduct that made him responsible as a party to the aggravated assault, that 

Appellant testified that he was in fear for his life when he committed such conduct, 

and that the evidence does not show that he placed himself in a situation in which 

he would be subject to compulsion, we hold that the trial court erred when it 

denied Appellant’s request for an instruction on the defense of duress.

Having found that the trial court erred, we must now determine whether the 

error was harmful. A properly preserved error in the jury charge requires reversal 

if the error was calculated to injure the rights of the defendant, meaning that 

reversal is required if the accused suffered some harm from the error. TEX. CODE 

CRIM. PROC. ANN. art. 36.19 (West 2006); Almanza v. State, 686 S.W.2d 157, 171 

(Tex. Crim. App. 1985). The actual degree of harm caused by the error must be 

determined in light of the entire jury charge; the state of the evidence, including the 

contested issues and the weight of the probative evidence; the argument of counsel; 
12

and any other relevant information revealed by the record. Almanza, 686 S.W.2d 

at 171. 

Here, Appellant properly preserved error when he requested the defensive 

instruction and when he objected to the trial court’s exclusion of the instruction 

from the jury charge. Thus, if we find that Appellant suffered some harm from the 

trial court’s decision to exclude the defensive instruction as to the aggravated 

assault charge, then we must reverse that conviction. Appellant’s theory was that 

he was forced to participate in the aggravated assault because Lee threatened to kill 

him if he did not. Appellant testified that he had no idea that either of the crimes 

was going to take place and that he thought they were just going to smoke some 

marihuana and then were going to go to the motel and go to sleep. Because 

Appellant’s defense in the aggravated assault case was based upon duress, we 

cannot say that he did not suffer some harm from the trial court’s error. We sustain 

Appellant’s third issue as to his conviction for aggravated assault with a deadly 

weapon.

Because we have found that the trial court erred when it failed to instruct the 

jury on the defense of duress, it is not necessary for us to address Appellant’s 

fourth issue, as to the aggravated assault charge, in which Appellant contends that

the trial court also erred when it failed to instruct the jury on the defense of 

necessity. See TEX. R. APP. P. 47.1. It is also not necessary for us to address 

Appellant’s second issue as to whether the trial court erred when it excluded expert 

testimony regarding Appellant’s susceptibility to duress. See id. 
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We affirm the judgment of the trial court as to Appellant’s conviction and 

punishment for murder. We reverse the judgment of the trial court as to 

Appellant’s conviction for aggravated assault with a deadly weapon, and we 

remand the cause to the trial court for further proceedings on that charge.

JIM R. WRIGHT

CHIEF JUSTICE

May 30, 2014

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.