Duress as an Affirmative Defense in Texas
Like other affirmative defenses in Texas, duress does not negate an element of the offense charged, but instead provides a reason why the accused should not be held criminally responsible for his acts. Duress involves a threat or use of force against the accused compelling the accused to act unlawfully.
Duress in Misdemeanors
In misdemeanor cases, the defense may be raised by showing the accused acted because he was facing a threat of force or was being forced to act.
Duress in Felonies
To raise the defense in a felony case, the accused must show that the threat was of imminent death or serious bodily injury to him or another.
Once facts have been raised to establish the basis for the defense, the defense must then show that the force or threat of force would render a person of reasonable resistance incapable of defying the threat or force.
“The defense of duress is available if the defendant or a member of his family was under present, imminent, or impending threat of death or serious bodily injury; the defendant had not recklessly or negligently placed himself in a situation in which it was probable that the defendant would be forced to choose criminal conduct; the defendant had no reasonable opportunity to escape from the situation and avoid threatened harm; and the direct criminal act taken in avoidance of the threatened harm.” United States v. Liu, 960 F.2d 449 (5th Cir. 1992), cert. denied.
If you are charged with an offense where you believe that duress may be an issue, you will want an experienced criminal defense attorney representing you who understands the challenges raising a successful duress defense. For example, if the trial court does not determine that the threat was imminent, it will exclude evidence that the threat was made. See Kessler v. State, 850 S.W.2d 217, 222 (Tex.App.—Fort Worth 1993, no pet.).
Burden of Proof for the Affirmative Defense of Duress
As an affirmative defense, the defendant will have both the burden of production and persuasion on an issue involving duress by a preponderance of the evidence.
Duress is laid out as a defense in Penal Code Section 8.05:
(a) It 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.
(b) In a prosecution for an offense that does not constitute a felony, it is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by force or threat of force.
(c) Compulsion within the meaning of this section exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.
(d) The defense provided by this section is unavailable if the actor intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion.
(e) It is no defense that a person acted at the command or persuasion of his spouse, unless he acted under compulsion that would establish a defense under this section.
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