Whitworth, Stephen Craig
Date Filed2014-12-31
DocketPD-1467-14
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
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
CAUSE NO. PD-1467-14 CLERK
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
______________________________________
STATEāS REPLY TO PETITION FOR DISCRETIONARY REVIEW
______________________________
Teresa Clingman
District Attorney, Midland County, Texas
Carolyn D. Thurmond
Assistant District Attorney
December 31, 2014 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
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
ļ· Stephen Craig Whitworth, Appellant
Inmate, Texas Department of Criminal Justice
ļ· David Martinez
Attorney at Law
1663 Broadway
Lubbock, Texas 79401
Appellate Counsel
ļ· Rick A. Navarrete
NAVARRETE & SCHWARTZ
1007 West Texas Avenue
Midland, Texas 79701
Former Appellate Counsel
ļ· Roy Scott
Attorney at Law
407 N. Big Spring St., Ste. 200
Midland, Texas 79701
Trial Counsel
ii
State of Texas Trial Counsel and Appellate Counsel
ļ· The State of Texas, Appellee/Petitioner
ļ· Teresa Clingman
District Attorney for Midland County, Texas
500 N. Loraine, Ste. 200
Midland, Texas 79701
ļ· Laura Nodolf, First Assistant District Attorney
500 N. Loraine, Ste. 200
Midland, Texas 79701
Trial Counsel
ļ· Carolyn D. Thurmond, Assistant District Attorney
500 N. Loraine, Ste. 200
Midland, Texas 79701
Appellate Counsel
Trial Judge
ļ· Hon. Rodney W. Satterwhite
441st District of Midland County, Texas
500 N. Loraine, Ste. 901
Midland, Texas 79701
iii
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
STATEāS REPLY TO GROUND FOR REVIEW ....................................... 4
ARGUMENT ............................................................................................. 4
A. Appellantās Contentions in his Petition ........................................ 4
B. Standard of Review ........................................................................ 5
C. Stateās Response to the Duress Defense ....................................... 5
D. Stateās Response to the Necessity Defense ................................... 8
PRAYER FOR RELIEF ............................................................................. 9
CERTIFICATE OF SERVICE................................................................. 10
CERTIFICATE OF COMPLIANCE ........................................................ 11
iv
INDEX OF AUTHORITIES
Cases
Anguish v. State, 991 S.W.2d 883(Tex. App.āHouston [1st Dist.] 1999, pet. refād) ................................................................................................ 6 Bernal v. State,647 S.W.2d 699, 706
(Tex. App. ā San Antonio 1982, no pet.) ........................................................................................................ 8 Cameron v. State,925 S.W.2d 246
(Tex. App. ā 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.āFort Worth 2014, pet. dismād) .................................................................................................... 7 Pennington v. State,54 S.W.3d 852, 856
(Tex. App.āFort Worth 2001, pet. refād). ............................................................................................... 5 Ramirez v. State,336 S.W.3d 846
(Tex. App.āAmarillo 2011, pet. refād). ................................................................................................................ 6 Whitworth v. State, 11-12-00114-CR,2014 Tex. App. LEXIS 5864
(Tex. App.āEastland 2014) ............................................................................ 3 Whitworth v. State, 11-12-00114-CR ,2014 Tex. App. LEXIS 10922
(Tex. App.āEastland 2014) ................................................................... 4
Statutes
TEX. PENAL CODE ANN. Ā§ 19.02(b)(1) (2011) .............................................. 2
TEX. PENAL CODE ANN. Ā§ 19.02(b)(2) (2011) .............................................. 2
TEX. PENAL CODE ANN. Ā§ 22.02(a)(1) (2011) .............................................. 2
v
TEX. PENAL CODE ANN. Ā§ 22.02(a)(2) (2011) .............................................. 2
TEX. PENAL CODE ANN. Ā§ 8.05(a) (2011)..................................................... 6
TEX. PENAL CODE ANN. Ā§ 8.05(c) (2011) ..................................................... 6
TEX. PENAL CODE ANN. Ā§ 8.05(d) (2011)..................................................... 6
Rules
TEX. R. APP. P. 38.1(a),...............................................................................ii
TEX. R. APP. P. 68.4(h). .............................................................................. 9
vi
CAUSE NO. PD-1467-14
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
______________________________
STEPHEN CRAIG WHITWORTH
Appellant/Petitioner
V.
STATE OF TEXAS
Appellee/Respondent
_____________________________
STATEāS 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:
1
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 āAppellant,ā
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. Ā§ 19.02(b)(1) (2011), TEX. PENAL CODE ANN. Ā§ 19.02(b)(2) (2011),
TEX. PENAL CODE ANN. Ā§ 22.02(a)(1) (2011), TEX. PENAL CODE ANN. Ā§
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
1References to the Clerkās Record are abbreviated as āCRā, followed by the page
number.
2
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 Appellantās conviction for
murder in Count One. Whitworth v. State, 11-12-00114-CR, 2014 Tex.
App. LEXIS 5864, *11 (Tex. App.āEastland 2014, pet. filed) (mem. op.
on rehāg, not designated for publication). The Court reversed Appellantās
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,
2References to the Reporterās Record are abbreviated as āRRā followed by the
volume number and page number.
3
the Court of Appeals denied the Motion for Rehearing and issued a
memorandum opinion finding the evidence was sufficient to support
Appellantās conviction for murder under the law of parties. Id. at *3.
STATEāS 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
courtās ruling to deny instructions on the defenses of
duress and necessity.
ARGUMENT
A. Appellantās Contentions in his Petition
Appellant contends in his ground for review the Court of Appeals
erred in affirming the trial courtās 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 āBosticā) and informant Devan Bomar
(hereafter referred to as āBomarā), to provide evidence he was guilty of
murder as a party and therefore entitled to instructions on defense and
necessity.
4
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.āFort Worth 2001, pet. refād).
C. Stateās Response to the Duress Defense
Appellant argued in his Petition for the duress instruction that
Bomarās and Bosticās testimony āpresented 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.ā (Petition for Discretionary Review p. 5). The
duress defense is available if āthe actor engaged in the proscribed
conduct because he was compelled to do by threat of imminent death or
5
serious bodily injury to himself or another.ā TEX. PENAL CODE ANN. Ā§
8.05(a) (2011). Compulsion āexists only if the force or threat of force
would render a person of reasonable firmness incapable of resisting the
pressure.ā TEX. PENAL CODE ANN. Ā§ 8.05(c) (2011). Furthermore, the
defense is unavailable if the actor, āintentionally, knowingly, or
recklessly placed himself in a situation in which it was probable he
would be subjected to the compulsion.ā TEX. PENAL CODE ANN. Ā§ 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.ā Houston [1st Dist.] 1999, pet. refād). 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 personās failure to commit the charged offense immediately. Id.; Ramirez v. State,336 S.W.3d 846, 851
(Tex. App.āAmarillo 2011, pet. refād). 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
.
6
There is no evidence in the record that Paul Curtis Lee (hereafter
referred to as āLeeā) threatened Appellant prior to the attack in which
Lee bludgeoned and stabbed Christopher Easley (hereafter referred to
as āEasleyā) 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 Sheriffās 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.āFort Worth 2014, pet. dismād) (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. ā El Paso, 1995,
no pet.) (Defendant generally afraid of co-defendantās temper, there is
7
no evidence of a specific threat). Bernal v. State, 647 S.W.2d 699, 706
(Tex. App. ā San Antonio 1982, no pet.) (Fear that co-defendant might
get violent if defendant did not ātake his turnā 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. Stateās 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 Appellantās argument, the State submits
Rule of Appellate Procedure 68.4(h) applies to this situation. āA petition
must contain a direct and concise argument, with supporting
8
authorities, amplifying the reasons for granting review.ā 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 Petitionerās 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
9
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 Stateās
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
10
CERTIFICATE OF COMPLIANCE
I certify the Stateās Reply to Petition for Discretionary Review was
prepared with Microsoft Word 2010 and that according to that
programās 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
11