Full Opinion

Opinion filed September 24, 2026 In The Eleventh Court of Appeals __________ No. 11-25-00114-CR __________ TIMOTHY PETER WILKINSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 372nd District Court Tarrant County, Texas Trial Court Cause No. 1656121 M E M O R A N D U M O P I N I O N1 Appellant, Timothy Peter Wilkinson, was indicted for the offenses of aggravated assault with a deadly weapon and burglary of a habitation, both second- degree felonies. See TEX. PENAL CODE ANN. § 22.02(a)(2), (b) (West 2026), 1 Pursuant to Misc. Docket Order No. 25-9016 issued by the Texas Supreme Court on April 2, 2025, this appeal was transferred to us from the Second Court of Appeals. Therefore, as the transferee court, we must decide the issues raised in this appeal in accordance with the precedent of the Second Court of Appeals if its precedent conflicts with ours. See TEX. R. APP. P. 41.3. § 30.02(a)(1), (c)(2) (West Supp. 2025). The jury convicted Appellant of both offenses and assessed his punishment for each offense at two years’ imprisonment in the Institutional Division of the Texas Department of Criminal Justice with a recommendation that he be granted community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42A.055 (West 2018); PENAL § 12.33(a) (West 2019). The trial court thereafter suspended Appellant’s sentences and placed him on community supervision in each case for a term of sixty months (five years). See CRIM. PROC. art. 42A.053(d). The trial court also made an affirmative finding that the offenses involved family violence. See CRIM PROC. art. 42.013; TEX. FAM. CODE ANN. § 71.004 (West 2019). In his sole issue on appeal, Appellant argues that the trial court erred when it refused to instruct the jury on the affirmative defense of duress. We affirm. I. Factual Background On the morning of September 10, 2020, Appellant arrived, unwelcome, at his mother’s Tarrant County residence. Appellant believed that checks belonging to him were inside the home and were being withheld from him. Appellant’s brother, Daniel Lindsay, who was at their mother’s residence when Appellant arrived, told him there were no checks for him and that he should leave. After being told to leave, Appellant entered the home without consent, where a physical altercation between him and Daniel ensued. At trial, Daniel testified that Appellant was “fixated” on their mother, who would have been physically unable to “keep [Appellant] at bay.” Daniel testified that he tried to stop Appellant’s advance into the home by punching him in the face and pushing him against the wall while also shouting at Appellant’s mother to call the police. Appellant, who was “heavier . . . and bigger” than Daniel, then began pulling Daniel’s hair and biting him, leaving bite marks. Appellant then brandished a knife, which according to Daniel, was being pushed toward his face. Trying to subdue Appellant, Daniel attempted to restrict 2 Appellant’s airway by placing his hand on his neck and, when Appellant brandished the knife, Daniel grabbed Appellant’s wrist with both hands to push the knife away. Shortly thereafter, officers with the City of Hurst Police Department arrived on scene and arrested Appellant. The 9-1-1 call made by Daniel’s and Appellant’s mother, Mary Wilkinson, was admitted into evidence, as was body camera footage from the responding officers. The 9-1-1 recording captured Mary’s distress as Appellant entered her home and brandished the knife and indicated that the two were “fighting over the knife” for almost a full minute. In the body camera footage, Appellant tells the responding officers that he initially pointed the knife—which was in his overalls against his lower back before he brandished it—at Daniel because Daniel was pulling his handkerchief upward and choking him but later clarified that he continued to brandish the knife as Daniel tried to run away because he wanted to get the checks. He told the officers that he pulled the knife “pretty late in,” and “that’s when [he] gained control of the situation,” stating, “[Daniel] was trying to get away but I already had his hair in my hand.” Appellant stated that Daniel “wasn’t going anywhere” without Appellant getting the checks. At trial, Appellant testified that he entered his mother’s home because he was “under the impression that [his] mother was going to give [him] the[] checks.” He further testified that he threatened Daniel with a knife because Daniel’s “hands were on [Appellant’s] throat” and he “was panicked” and “[did not] know what [Daniel] could have done.” According to Appellant, after he “pulled the knife on him,” Daniel yelled at his partner “to bring him his gun”; Appellant conceded that he would not be “surprise[d] to know that the first mention of a gun” occurred at trial. During the charge conference, Appellant’s trial counsel requested that the trial court submit in its charge an instruction on the affirmative defense of duress, arguing that a jury could conclude that Appellant’s “actions were under an immediate duress 3 of what was happening to him right then and there” on September 10, 2020. The State objected and argued that the evidence elicited at trial did not support the submission of this instruction. When asked by the trial court to identify specific evidence that would support the duress instruction, Appellant’s trial counsel responded: “Not specific testimony . . . but I believe that the threat of . . . imminent serious bodily injury or death as alleged in the duress statute would fit under this set of facts that the jury has heard here this week.” The trial court denied Appellant’s request but did instruct the jury on self-defense. II. Analysis Reviewing charge error complaints is a two-step process. Campbell v. State, 664 S.W.3d 240, 245 (Tex. Crim. App. 2022) (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)). First, we must determine whether error exists. Id. If there is no error, our analysis ends. Id.; Loza v. State, 659 S.W.3d 491, 497 (Tex. App.—Eastland 2023, no pet.). However, if error does exist, we must decide whether the appellant was harmed and if the harm is sufficient to warrant reversal. Cyr v. State, 665 S.W.3d 551, 556 (Tex. Crim. App. 2022) (citing Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013)); Ybarra v. State, 621 S.W.3d 371, 384 (Tex. App.—Eastland 2021, pet. ref’d). The applicable standard of review to be utilized for charge error depends on whether the claimed error was preserved. Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020). The purpose of the trial court’s charge “is to inform the jury of the applicable law and guide them in its application to the case.” Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)). Charge error stems from the denial of a defendant’s right to have the trial court provide the jury with instructions that correctly set forth the “law applicable to the case.” Bell v. State, 635 S.W.3d 641, 645 (Tex. Crim. App. 2021) (quoting CRIM. PROC. art. 36.14 (West 2007)). Because the trial court is obligated 4 to correctly instruct the jury on the law applicable to the case, it is ultimately responsible for the accuracy of its charge and the accompanying instructions. Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (citing Delgado, 235 S.W.3d at 249). Therefore, when the charge is inaccurate, the trial court errs, and the error is subject to the appropriate harm analysis. See Bell, 635 S.W.3d at 645. When, as in this case, the charge-error complaint is preserved for our review, we must reverse if the error caused “some harm.” Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). “Some harm” means actual harm and not merely a theoretical complaint. Sanchez v. State, 376 S.W.3d 767, 774–75 (Tex. Crim. App. 2012). To determine whether the charge error harmed the defendant, we examine and consider, in light of the entire charge, the evidence presented at trial, including the contested issues and the weight of the probative evidence, the arguments of counsel, and any other relevant information in the trial record as a whole that informs our analysis. Id. (citing Almanza, 686 S.W.2d at 171). In reviewing the evidence, we must consider “the plausibility of the evidence raising the defense.” Villarreal v. State, 453 S.W.3d 429, 436 (Tex. Crim. App. 2015). These considerations guide our analysis. Id. at 433. There is no burden of proof associated with the harm evaluation; reversal is required if the error was calculated to injure the defendant’s rights. Reeves, 420 S.W.3d at 816. A. Defensive Instruction Submission It is well-established that a “defendant is entitled to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless of how the trial court views the credibility of the defense.” Maciel v. State, 631 S.W.3d 720, 723 (Tex. Crim. App. 2021) (quoting Celis v. State, 416 S.W.3d 419, 430 (Tex. Crim. App. 2013)); Sanders v. State, 707 S.W.2d 78, 80 (Tex. Crim. App. 1986). If there is “some 5 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[,]” the trial court should submit the requested instruction. See Shaw v. State, 243 S.W.3d 647, 657– 58 (Tex. Crim. App. 2007); Kelso v. State, 562 S.W.3d 120, 132–33 (Tex. App.— Texarkana 2018, pet. ref’d). The defendant bears the burden to prove that the evidence supports the submission of his requested defensive instruction, and the trial court will properly refuse to submit it if the defendant fails to meet his burden. PENAL § 2.04(c), (d) (West 2021); Shaw, 243 S.W.3d at 657. Duress is defined in Section 8.05 of the Penal Code, which states that, “[i]t is an affirmative defense to prosecution that the actor 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.” PENAL § 8.05(a). To successfully raise this defense, both compulsion and imminency must be present. Murkledove v. State, 437 S.W.3d 17, 26 (Tex. App.—Fort Worth 2014, pet. ref’d). Compulsion arises “only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.” PENAL § 8.05(c). The threat is imminent if “the person making the threat intends and is prepared to carry out the threat immediately on the accused’s failure to commit the charged offense.” Murkledove, 437 S.W.3d at 26 (citing PENAL § 8.05(c)). However, this defense is not available to a defendant who “intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion.” PENAL § 8.05(d). Appellant argues that the trial court erred when it refused to submit his requested duress instruction because evidence was presented at trial that his encounter with Daniel established Appellant’s fear of imminent death or serious bodily injury. The State responds that there was no evidence that Appellant was compelled to enter his mother’s home or threaten Daniel with a knife, and that his actions were purely voluntary. 6 Although there is a distinction between an affirmative defense, such as duress, and a justification defense under Chapter 9 of the Penal Code, such as self-defense, we and our sister courts have treated duress as a confession-and-avoidance justification-type of defense. See Whitworth v. State, No. 11-12-00114-CR, 2014 WL 2527762, at *4 (Tex. App.—Eastland May 30, 2014, pet. ref’d) (mem. op., not designated for publication) (“The doctrine of confession and avoidance applies to the defense of duress.”); see also Rodriguez v. State, 368 S.W.3d 821, 824–25 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (rejecting the appellant’s argument that he was entitled to a duress instruction because he failed to proffer evidence admitting his commission of the charged offense). Additionally, because duress is an affirmative defense, a defendant must prove by a preponderance of the evidence that he is entitled to this defensive instruction; this level of proof does not apply to a self-defense instruction because a defendant must only produce “some” evidence to support its submission. See PENAL §§ 2.03(c), 2.04(d), 8.05, 9.31; Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991) (self-defense burden of production). Clearly, Appellant must shoulder the burden to justify the submission of a defensive issue. In deciding whether a defensive issue has been raised by the evidence, a trial court must rely on its own judgment, formed in the light of its own common sense and experience, as to the limits of any rational inference from the facts that have been proven. Miller v. State, 712 S.W.3d 235, 255 (Tex. App.— Eastland 2025, pet. filed) (citing Shaw, 243 S.W.3d at 658). Whether the record contains such evidence is a question of law. Id. Thus, to obtain a submission on duress, the burden rested with Appellant to prove that he was entitled to this defensive instruction. See Dixon v. United States, 548 U.S. 1, 8 (2006); Ortega v. State, No. 11-17-00036-CR, 2019 WL 386566, at *4 (Tex. App.—Eastland Jan. 31, 2019, pet. ref’d) (mem. op., not designated for publication) (discussing the defendant’s burden in making a request for an affirmative defense instruction). To 7 meet his burden, Appellant was required to present evidence of “a specific, objective threat” made to him. See Murkledove, 437 S.W.3d at 26. We conclude that Appellant failed to satisfy the requisite burden of proof to support a duress instruction. Therefore, the trial court did not err when it refused to submit Appellant’s requested duress instruction. See Gomez v. State, 380 S.W.3d 830, 834 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (The appellant was not entitled to a duress instruction because he did not admit to all elements of the charged offense and failed to prove that his conduct was justified under the circumstances.); see also Rodriguez, 368 S.W.3d at 824–25 (same). Here, the evidence shows that the confrontation between Appellant and Daniel began only after Appellant entered his mother’s home without her consent and after being told to leave. In Murkledove, the Second Court of Appeals, on whose precedent we must rely, rejected the defendant’s claim that a duress instruction should have been submitted to the jury because there was no evidence of any “specific, objective threat” to the defendant or anyone else. Murkledove, 437 S.W.3d at 26; compare Cameron v. State, 925 S.W.2d 246, 250 (Tex. App.—El Paso 1995, no pet.) (finding a duress instruction was not warranted when there was no evidence of a specific, objective threat made to the defendant), with Whitworth, 2014 WL 2527762, at *5 (holding that a duress instruction was justified when the evidence showed that someone told the defendant that if he did not harm the victim, the defendant would “be next”). Similarly, here, no threats were made by Daniel, and no force was used by him against Appellant until after he had unlawfully entered his mother’s home. Thus, unlike the directive to engage in criminal activity in Whitworth, Appellant was instead clearly directed by Daniel to cease his criminal conduct. When asked by the trial court to point to the evidence that would support the submission of a duress instruction, Appellant’s trial counsel acknowledged that he could not identify any 8 specific testimony of an alleged specific threat that was made against Appellant. See Kelso, 562 S.W.3d at 132–33 (rejecting a duress instruction request when the only evidence showed that there was only a generalized fear by the defendant and no specific threats of harm were made to the defendant). Instead, the evidence shows that the force used by Daniel was reactionary and preventative—in that it was only used to prevent Appellant from advancing into their mother’s home while he was armed with a knife as Daniel yelled for the police to be called. Thus, the evidence does not indicate that Appellant or any other person would have been threatened with death or serious bodily injury if Appellant had not entered the home after he encountered Daniel and was instructed to leave. Moreover, as we have held, Appellant’s conduct by initiating the confrontation with Daniel and entering his mother’s home without her consent after being told to leave precludes his entitlement to the duress defense. See PENAL § 8.05(d); Guffey v. State, No. 11-10-00106-CR, 2012 WL 1470185, at *4 (Tex. App.—Eastland Apr. 26, 2012, pet. ref’d) (mem. op., not designated for publication) (discussing how the defendant was not entitled to the duress instruction because he voluntarily associated with the group that led to the supposed duress). B. “Some Harm” Analysis and the Almanza Factors Even assuming, arguendo, that the trial court erred as Appellant contends, its refusal to submit a duress instruction does not warrant a reversal. “Harm is assessed ‘in light of the entire jury charge, the state of the evidence, including the contested issues and weight of [the] probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.’” Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022) (quoting Almanza, 686 S.W.2d at 171). “In ascertaining whether there is harm, appellate courts ‘focus on the evidence and record to determine the likelihood that the jury’ would have concluded that the defense applied had it been given the instruction.” 9 Chase v. State, 418 S.W.3d 296, 301 (Tex. App.—Austin 2013), aff’d, 448 S.W.3d 6 (Tex. Crim. App. 2014) (quoting Wooten, 400 S.W.3d at 606). 1. The Charge as a Whole When viewed as a whole, the charge indicates that Appellant did not suffer harm because of the exclusion of the duress instruction. Although Appellant’s request to submit the duress instruction was denied, the trial court did instruct the jury on Appellant’s claim of self-defense. Thus, the trial court’s instructions addressed: (1) self-defense; (2) the definition of deadly force, which includes force that is capable of causing death or serious bodily injury; (3) whether Appellant “reasonably believed that force, when and to the degree used, was immediately necessary to protect himself against the use or attempted use of unlawful force by [Daniel];” and (4) whether Appellant “reasonably believed that deadly force, when and to the degree used, was immediately necessary to protect himself” from Daniel’s attempted use or use of unlawful deadly force or “to prevent [Daniel]’s imminent commission of [the] murder [of Appellant].” By convicting Appellant, the jury implicitly rejected Appellant’s claim of self- defense and found that the State proved beyond a reasonable doubt that (1) Appellant did not reasonably believe that he was in fear of serious bodily injury or death, or (2) Appellant did not reasonably believe that the degree of his force was immediately necessary to protect himself against any purported use of unlawful deadly force by Daniel. See Miller, 712 S.W.3d at 257. Thus, and despite these instructions, the jury apparently did not find that there was a “threat of imminent death or serious bodily injury to [Appellant].” See PENAL § 8.05(a) (emphasis added). Accordingly, this factor weighs in favor of finding that Appellant was not harmed by the instruction’s exclusion. 10 2. The Evidence Presented at Trial When assessing the presence of harm, we may not “only look[] at the evidence which undermine[s] the request for the instruction.” Maciel, 631 S.W.3d at 724. Rather, we must view the evidence in the light most favorable to the requested instruction. Id. at 722. As we have discussed, the evidence shows that Appellant entered his mother’s home without her consent after being told to leave by Daniel; an altercation thereafter ensued that led to Appellant threatening Daniel with a knife. The brothers have differing accounts of what led to Appellant appearing at his mother’s home on September 10, with Appellant claiming that he was entering it to retrieve some checks that were made payable to him and Daniel claiming that Appellant had no right to enter. However, when the jury found Appellant guilty of the burglary offense, it necessarily rejected Appellant’s version of events because, to convict Appellant of this offense, the State was required to prove that Appellant did not have consent to enter the owner’s (his mother) habitation. PENAL § 30.02(a). To be sure, Appellant testified that he felt unsafe when Daniel placed his hands on his neck. On its face, and when viewed in the light most favorable to the requested instruction, this could arguably justify the submission of a defensive instruction. However, the trial court included in its charge the only defensive instruction that was supported by the evidence—self-defense. Appellant described how Daniel was choking him, a threat that he could answer in self-defense, not one that compelled him to commit the charged offenses. See PENAL § 8.05(a); Murkledove, 437 S.W.3d at 26. Accordingly, this factor weighs in favor of finding that Appellant was not harmed by the instruction’s exclusion. 11 3. The Arguments of Counsel Next, we consider the arguments of counsel. In considering this factor, we must determine whether any statements made by the State, Appellant’s trial counsel, or the trial court exacerbated or ameliorated the complained-of charge error. Arrington v. State, 451 S.W.3d 834, 844 (Tex. Crim. App. 2015). Here, the arguments of counsel do not support the determination that Appellant was harmed by the excluded duress instruction. While both the State and Appellant’s trial counsel discussed justification—namely self-defense—during their closing arguments, the substance of their arguments mainly focused on facts that would have precluded a duress defense. For example, the State argued that Appellant provoked the altercation with Daniel and much of its argument focused on Appellant’s conduct that led him to threaten Daniel with a knife and his reason for being at their mother’s home that day. There also was considerable emphasis by the State on Appellant’s lack of credibility. On the other hand, in his argument, Appellant’s trial counsel, while discussing justification, focused heavily on a supposed lack of evidence and attempted to discredit Daniel and his testimony regarding the details of the altercation with Appellant. In fact, Appellant’s trial counsel stated that the “crux” of the case was whether Appellant entered his mother’s home with her consent. Given that both Appellant and Daniel testified about their accounts of how Appellant entered the home, and the nature of the jury’s verdict in finding Appellant guilty of burglary of a habitation, it could be said that the jury implicitly rejected Appellant’s argument as to what constituted the crux of the case. Thus, counsels’ arguments focused on either the submitted justification defense of self-defense or aspects of the case that do not bear on justification. See Campbell, 664 S.W.3d at 253 (noting that the jury argument did not support a finding of harm because the argument did not focus on the error in the jury instructions). 12 Accordingly, this factor weighs in favor of finding that Appellant was not harmed by the instruction’s exclusion. 4. Other Relevant Information in the Record Finally, the fourth Almanza “catch-all” factor requires that we consider any other relevant information in the record that would assist in our determination of whether Appellant was harmed by the complained-of charge error. Gelinas v. State, 398 S.W.3d 703, 707 (Tex. Crim. App. 2013); Almanza, 686 S.W.2d at 171. We have outlined the evidence that is pertinent to our harm analysis. Because there is no other information in the record that would inform our analysis, this factor neither weighs in favor of nor against a finding of harm. 5. The Almanza Factors Considered Together In light of the foregoing considerations and the standard of review that we must employ, we conclude that even if the trial court’s refusal to include the duress instruction was erroneous, and we do not hold that it was, Appellant did not suffer the necessary harm—“some harm”—to justify reversal. Accordingly, we overrule Appellant’s sole issue on appeal. III. This Court’s Ruling We affirm the judgment of the trial court. W. STACY TROTTER JUSTICE September 24, 2026 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J., Trotter, J., and Williams, J. 13