NO. 07-09-0157-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MARCH 24, 2011

__________________ ____________ CODY RAMIREZ, APPELLANT V. THE STATE OF TEXAS, APPELLEE

__________________ _______________ FROM THE 140 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2009-422,891; HONORABLE JI M BOB DARNELL, JUDGE

__________________ _____________ Before CAMPBELL and HANCOCK and PIRTLE, JJ.

OPINION
Following a plea of not guilty, Appellant, Cody Ramire z, was convicted by a jury of aggravated assault of a public servant, 1 with an affirmative finding on use of a deadly
weapon. 2 Punishment was assessed by the jury at confinement for life. Presenting two

1 Tex. Penal Code Ann. § 22.02( b)(2)(B) (West Supp. 2010).

2 At the time of the offense, Appellant was sixteen years ol d. The trial court did take judicial notice of the juvenile certification in the underlying case.2 issues, Appellant questions whether (1) the tr ial court constructively denied his right to testify in violation of due process by indicating an inte nt to allow improper impeachment evidence and (2) the trial cour t erred in not submitting a jury charge that properly instructed it regarding the affirmative defense of duress. 3 We affirm.
Background Facts
At approximately 4:00 a.m. on December 5, 2006, Offi cers Michael Chavez and Michael Matsik, in separate patrol cars, responded to an aggravated robbery at a local gaming establishment. Per procedure, they retr ieved their patrol rifles from the trunks of their respective patrol cars. While Officer Chavez was loading his rifle, two suspects wearing black ski masks and hooded sweatshirt s exited the back door of the gaming establishment and began running for the east gate. Although order ed to the ground, the two suspects began to flee in opposite direct ions. Officer Chavez gave chase to the suspect running south, while Officer Matsik gave chase to the other suspect. At the time, both officers observed a small gray or silver car parked in the alley.
Officer Matsik temporarily lost sight of his suspect when the suspect cut through a fence. A female bystander pointed Officer Matsik in the su spect's direction. Although the area was dark, Officer Matsik observed a silhouette followed by a muzzle flash. 4 He immediately dropped to t he ground as multiple shots were fired. He picked himself up to return fire but noticed the safety on his rifle was still engaged. The suspect had retreated over a gate into a residential area, and Officer Matsik could not get a clear shot.

3 See Tex. Penal Code Ann. § 8.05 (West 2003).

4 Officer Matsik testified that a muzzle flash is a fl ash that comes from the barrel of a weapon upon firing.3 After Officer Chavez heard shots fired, he decided to check on his fellow officer. As he approached, he saw the silver ca r which he had earlier observed in the alley speed away. Other officers on the scene pursued the car and eventually arrested Appellant. The second suspect, the suspec t Officer Chavez had originally pursued, was later found hiding under a door that wa s leaning up against a building.
After the suspects were arrested, Offi cer Matsik experienced a burning sensation on his upper thigh. He pull ed his left pant leg up and, using the lights of the patrol car, noticed a bullet hole in the lowe r part of the pant leg toward his ankle. He also had graze wounds on his upper thigh and just above hi s left wrist. He concluded that bullets were fired in his direction and that contac t was made on at least three occasions.
Although Appellant was initially charged in a si x-count indictment, the State announced just before trial that it was proceeding only on count VI, the charge of aggravated assault with a deadly weapon against Off icer Matsik. After a jury trial, Appellant was convicted and s entenced to life imprisonment.

I. Issue One--Did the trial court cons tructively deny Appellant his right to testify by announcing that it would permit the State to cross-examine him with improper impeachment evidence? Appellant proceeded to tria l on the theory of duress as an affirmative defense. The theory was that Appell ant's uncle, Richard Ramirez, 5 coerced him into committing the aggravated robbery and threat ened to kill him if he got caught. Ramirez testified that he "masterminded" the robbery at the gam ing establishment, provided Appellant with a gun, and threatened his life. He further te stified that his instructions to Appellant

5 Richard Ramirez's charges in the a ggravated robbery were dismissed in exchange for his plea to capital murder for which he is serving a life se ntence without the possibility of parole.4 included not getting caught or he would have to "deal with" him. His advice to Appellant to evade officers was to "shoot low" and "[g] et away." Richard Ramirez was inside the gaming establishment at the time of the ro bbery but was not armed at the time and was not near Appellant.
Following Ramirez's testim ony, defense counsel advised the trial court that Appellant indicated he wanted to testify and asked that he be properly admonished. Defense counsel's understanding at that time was that Appellant would only be impeached with prior felonies or misdem eanors involving moral turpitude. The prosecutor responded that with the affirmative defense of dur ess, Appellant would have to accept full responsibility for the crime and that his character and relationship with Richard Ramirez would be explored.
The jury was excused and Appellant t ook the stand and was admonished by the trial court about the waiver of his right against self-incrimi nation. After a brief question and answer period, the trial cour t found that Appellant had fr eely and voluntarily waived that right. The court then r equested that the prosecutor reveal her intended line of questioning.
The prosecutor advised the court that based on the affirmative defense of duress, she intended to explor e Appellant's relationship wit h his uncle which would put Appellant's character at issue. She also expressed her int ent to question Appellant on his problems with the juvenile syst em and possible gang activity.
The trial court ruled that the prosecut or could ask questions on the proposed areas, except for any questions relating to gang activity. Defense counsel sought5 clarification and the trial co urt explained that its ruli ng would permit questions on Appellant's juvenile record and extraneous offens es without limiting those extraneous offenses to prior acts involving moral turpitude.

Defense counsel then asked to confer with Appellant after which he raised the following objection:
Your Honor, in light of the Court's ruling, allowing the prosecution to go into juvenile records and extraneous offenses, I have spoken with my client, [Appellant], and he now informs me that he does not wish to testify at this point during the guilt - innocence stage. I wish to state for the record that I am objecting to the Court's ruling, and I would submit that the ru ling itself prohibits him from taking the stand under the present circumstances.
Defense counsel's objection was overruled.
By his first issue, Appellant argues that the trial court's ruling constructively denied him the right to testify in his own defense. While acknow ledging that Rule 404(b) of the Texas Rules of Evidence allows the admission of other crimes, wrongs or acts for certain limited purposes , Appellant maintains the Stat e did not offer a legitimate limited purpose for the scope of its intended cross-examination. He further maintains the trial court's ruling wo uld have allowed impermissi ble impeachment evidence regarding Appellant's character. The court's action, he asserts, presented him with a Hobson's choice.
An accused has the right to testify on his own behalf. See Rock v. Arkansas , 483 U.S. 44, 49, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). See also Tex. Const. art. I, section 10; Tex. Code Crim. Proc. Ann. art. 38. 08 (West 2005). If, however, an accused6 exercises his right to testify, he is subjec t to the same rules governing examination and cross-examination as other witnesses. Brown v. State , 617 S.W.2d 234, 236 (Tex.Crim.App. 1981). "He may be contr adicted, impeached, discredited, attacked, sustained, bolstered up, made to give evidence against himself, cross-examined as to new matter, and treated in every respect as any other witness testif ying, except where there are overriding constitutional or statut ory prohibitions." (Citations omitted). Id.

The decision of an accused whether to testify "seldom turns on the resolution of one factor among many." New Jersey v. Portash , 440 U.S. 450, 467, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979) (Blackmun, J., dissent ing). When a defendant chooses not to testify, a reviewing court has no way of kno wing whether the State actually would have sought to impeach him with inadmissible evi dence of extraneous offenses or prior convictions. Luce v. United States , 469 U.S. 38, 42, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). In Luce , the Supreme Court adopted the rule that "[t]he preferred method for raising claims such as [Appellant's] woul d be for the defendant to take the stand and appeal a subsequent conviction . . . . Only in this way may the claim be presented to a reviewing court in a concrete factual context." Id. at 43 (citing Portash , 440 U.S. at 462 (Powell, J., concurring)). The Supreme Cour t held that because Luce did not testify, he failed to preserve his claim of improper impeachment evidence. Luce , 469 U.S. at 43.

In Jackson v. State , 992 S.W.2d 469, 479-80 (Tex.Cri m.App. 1999), the Court rejected an argument similar to the one being made here, i.e., that the trial court effectively denied the defendant his right to test ify by refusing to limit the State's crossexamination

. In Jackson, the defendant wanted to testify during the punishment phase of his capital murder case, for the limited purpos e of raising mitigation issues. He7 sought to foreclose cross-exami nation about extraneous offenses. Jackson , 992 S.W.2d at 479. Becaus e the defendant failed to testify t he Court found the reasoning of Luce to be applicable and held that he failed to preserve error for review. Id. at 480.
In the present case, after conferring with his counsel, Appellant chose not to testify. Without his testimony, this Court cannot speculate on w hether the prosecutor would have cross-examined Ap pellant on matters outside the scope of permissible impeachment. Notwithstanding that the pr osecutor had announced certain areas which she intended to explore on cro ss-examination, without Appellant's testimony, this Court is at a disadvantage in attempting to dete rmine (1) the precise nature of the State's questions, (2) Appellant's actual evidentiary objection, (3) w hether the trial court's ruling would have remained the same or would have changed as the case unfolded, (4) Appellant's responses to the State's questi ons, and (5) whether any resulting error in permitting impermissible evidence would have been harmless. See Luce , 469 U.S. at 41. We conclude that, just as in Luce and Jackson , Appellant's objection regarding the trial court's "prospective ruling" regardi ng possible impeachment evidence preserved nothing for review. Issue one is overruled.
II. Issue Two-- Did the trial court err in failing to submit a jury charge that properly instructed the jury regard ing the affirmative defense of duress?
Duress is an affirmative defense if the actor engaged in 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 2003). A person is compelled to act within the m eaning of the duress defense only if confronted by force or threat of force that would render a person of reasonable firmness in capable of resisting8 the pressure. Id . at (c). Whether a "person of reasonable firmness" would be incapable of resisting the pressure to engage in proscribed conduct is an objective inquiry rather than a subjective one. See Wood v. State , 18 S.W.3d 642, 651 n.8 (Tex.Crim.App. 2000).
Appellant does not complain about the abstract or a pplication portions of the court's charge as they pertain to the a ffirmative defense of duress. Rather, he specifically maintains that the following paragraph improperly instructed the jury that a special finding was required for or agai nst the affirmative defense of duress:
If, however, after viewing the facts fr om the defendant's st andpoint, you do not find by a preponderance of evidenc e that defendant's participation in the offense, if any, was compelled by such thr eat of force by Richard Ramirez as would render a person of reasonable firmness incapable of resisting the pressure thereof, then yo u will find against the defendant on his defense of duress.
During the charge conference, defense couns el objected to inclusion of the abovequoted paragraph. Counsel's obje ction was overruled.
Appellant argues the charge is a misstatem ent of the law becaus e it improperly instructs the jury to find "against the defenda nt" if it does not find the affirmative defense of duress by a preponderance of t he evidence. We disagree.
First, the objected to portion of the court's charge does not instruct the jury to find against the defendant on the issue of guilt or innocence if it does not find the affirmative defense of duress by a preponderance of the evidence. Instead, in such a circumstance, it only instructs the jury to find against the defendant on the affirmative defense issue of duress. Therefore, Appel lant's argument lacks substantive merit.9 Secondly, assuming arguendo , that the trial court's in clusion of the objected-to paragraph was error, Appe llant was not harmed. 6 The function of the jury charge is to instruct the jury on the law app licable to the case. Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007); Dinkins v. State , 894 S.W.2d 330, 339 (Tex.Crim.App. 1995), cert. denied , 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995). The charge consists of an abstract statement of the law an d the application paragraph(s). See Plata v. State , 926 S.W.2d 300, 302 (Tex.Crim.App. 1996), overruled on other grounds , Malik v. State , 953 SW.2d 234, 239 (Tex. 1997). When reviewing the charge for alleged error, we examine the charge as a whole, considering th e relationship between the abstract and application portions of the charge. King v. State , 189 S.W.3d 347, 364 (Tex.App.--Fort Worth 2006, no pet.).

To avail oneself of the affirmative defens e of duress, the accu sed must admit to having engaged in the proscribed conduct. See Giesberg v. State, 984 S.W.2d 245 (Tex.Crim.App. 1998), cert. denied, 525 U.S. 1147, 119 S.C t. 1044, 143 L.Ed.2d 51 (1999); Timms v. State , 2009 Tex.App. LEXIS 10042, at *3 (Tex.App.--Amarillo April 22, 2009, pet. ref'd). Forcing the State to carry its burden of proof is not an admission of the charged offense. Id. at *5. Having failed to admit to the offense, Appellant was not harmed by any alleged error in the manner in which the defensive issue of duress was presented to the jury.

6 The degree of harm necessary under Almanza v. State , 686 S.W.2d 157, 171 (Tex. 1984), is some harm because the paragraph complained of was objected to and the trial court overruled the objection.10 Furthermore, in order to meet the require ments of duress, the threat of death or serious bodily injury must be imminent

. 7 (Emphasis added). An imminent threat has two components of immediacy. Anguish v. State , 991 S.W.2d 883, 886 (Tex.App.-- Houston [1st Dist] 1999, pet. ref'd). First, the person making the threat must intend and be prepared to carry out the thr eat immediately. Second, ca rrying out the threat must be predicated upon the threatened person's fa ilure to commit the charged offense immediately. Id. The Texas Court of Crim inal Appeals has determi ned that a threat of death at some indefinite time in the future is insufficient to satisfy the requirement of imminence. Blount v. State , 542 S.W.2d 164, 166 (T ex.Crim.App. 1976).
Part of the State's theory in opposit ion to the defense of duress was that Appellant was not acting under duress because he was not in imminent danger at the time of the aggravated robbery. The testim ony elicited from Ramirez was that if Appellant was appr ehended, he would "deal wit h" him when he tried to get him out of jail. He explained that he would carry out his threat at some time in the future. When asked again, "you would have dealt with [Appell ant] at some point in the future," Ramirez replied, "[o]f course." Ramirez al so answered "no" when asked if he was within "killing range" of Appellant at the time of the robbery. Because Ramirez's threat to Appellant was a future threa t, there was no threat of i mminent death or serious bodily injury.

7 Appellant did not testify. This Court has found that one asserting the affirmat ive defense of duress must admit to having engaged in the proscribed conduct. See Timms v. State , 2009 Tex.App. LEXIS 10042, at *3 (Tex.App.--Amarillo April 22, 2009, pet. ref'd). Forc ing the State to carry its burden of proof is not an admission of the charged offense. Id. at *5.11 Based upon the record before us, we conc lude that the trial court did not commit reversible error by failing to submit a ju ry charge that properly instructed the jury regarding the affirmative defense of dur ess. Issue two is overruled.
Reformation of Judgment
In reviewing the record, it has come to this Court's att ention that the trial court's judgment contained in the clerk's record incl udes clerical errors. The summary portion of the judgment reflects that Appellant entered a plea of gu ilty to the charged offense while the reporter's record reveals that Appell ant in fact entered a pl ea of not guilty after the indictment was read. Addi tionally, the "Statute for Offense" reflects that Appellant was convicted under "§ 22.02(b)(2)." Howeve r, aggravated assault of a public servant is found at section 22.02(b)(2)(B ) of the Texas Penal Code.
This Court has the power to modify the judgment of the cour t below to make the record speak the truth when we have the necessa ry information to do so. Tex. R. App. P. 43.2(b). Bigley v. State , 865 S.W.2d 26, 27-28 (Tex.Cri m.App. 1993). Appellate courts have the power to reform whatever the trial court could have corrected by a judgment nunc pro tunc where the evidence necessary to correct the judgment appears in the record. Ashberry v. State , 813 S.W.2d 526, 529 (Tex .App.--Dallas 1991, pet. ref'd). The power to reform a judgment is "not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court." Id. at 529-30.
The record clearly shows that Appell ant entered a plea of not guilty to the indictment and that he was c onvicted pursuant to section 22.02(b)(2)(B) of the Texas12 Penal Code. Thus, we modify the trial court' s judgment to reflect a plea of "not guilty" and also modify the "Statute for Offense" to reflect "§ 22 .02(b)(2)(B)" in the summary portion of the judgment. As modified, t he trial court's judgment is affirmed.

Patrick A. Pirtle Justice

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