Whitworth, Stephen Craig

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 ______________________________________ STATE’S 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 North Loraine, Suite 200 Midland, Texas 79701 (432) 688-4420 voice (432) 688-4938 fax [email protected] 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 ii State of Texas Trial Counsel and Appellate Counsel  The State of Texas, Appellee/Petitioner  Teresa Clingman

District Attorney for Midland County, Texas N. Loraine, Ste. 200

Midland, Texas 79701  Laura Nodolf, First Assistant District Attorney N. Loraine, Ste. 200

Midland, Texas 79701

Trial Counsel  Carolyn D. Thurmond, Assistant District Attorney N. Loraine, Ste. 200

Midland, Texas 79701

Appellate Counsel

Trial Judge  Hon. Rodney W. Satterwhite

441st District of Midland County, Texas 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 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 iv 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 v 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 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 _____________________________ 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:

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 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 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, 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.

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 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.

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 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 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 [email protected] 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

[email protected]

David Martinez

Attorney at Law

1663 Broadway

Lubbock, Texas 79401

Email: [email protected]

Attorney for Appellant

/S/ Carolyn D. Thurmond _____________________________ Carolyn D. Thurmond

Assistant District Attorney

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