Moreno v. State
| Decision Date | 05 October 2020 |
| Docket Number | No. 05-18-00271-CR,05-18-00271-CR |
| Parties | RICKY MORENO, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 283rd Judicial District Court Dallas County, Texas
Before Chief Justice Burns, Justice Myers, and Justice Molberg
Opinion by Justice Myers
A jury convicted appellant Ricky Moreno of aggravated kidnapping and assessed punishment at 45 years' imprisonment and a $10,000 fine. Appellant brought ten issues, arguing the evidence was (1) legally and (2) factually insufficient to support the jury's rejection of his affirmative defense of duress; (3) the evidence was legally insufficient to support the jury's rejection of his justification defense of necessity; (4) the trial court improperly instructed the jury on the law of parties; (5) the trial court erred in admitting video evidence; (6), (7), and (8) the trial court erred in excluding from the guilt-innocence phase testimony from, respectively, Dr. Lisa Clayton, Dr. Michael Pittman, and Detective Michael Yeric showing appellant suffered from post-traumatic stress disorder, or PTSD; (9) the trial court erred in denying appellant's pretrial motion to suppress; and (10) the sentence was disproportionate to appellant's conduct during the offense and punishments received by other bystanders. The State also brought a cross-point seeking modification of the judgment.
We reversed and remanded, concluding that evidence regarding PTSD was relevant to showing duress. The Court of Criminal Appeals disagreed, reversing and remanding the case for us to resolve issues—appellant's issues (2), (4), (5), and (10)—that were not addressed in our original opinion. See Moreno v. State, 586 S.W.3d 472 (Tex. App.—Dallas 2019), reversed, ___ S.W.3d ___, No. PD-1044-19, 2020 WL 3265252, at *3 (Tex. Crim. App. June 17, 2020). Having now done so, we affirm the trial court's judgment as modified.
Issue 2: Factual Sufficiency
In his second issue, appellant contends the evidence is factually insufficient to support the jury's rejection of appellant's affirmative defense of duress.1
Unlike criminal convictions that are only subject to legal sufficiency review, we may review a finding rejecting an affirmative defense for both legal and factual sufficiency. Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015); Matlockv. State, 392 S.W.3d 662, 668-70 (Tex. Crim. App. 2013). In a factual sufficiency review of a finding rejecting an affirmative defense, we view the entirety of the evidence in a neutral light, but do not usurp the function of the jury by substituting our own judgment in place of the jury's assessment of the weight and credibility of the witnesses' testimony. Matlock v. State, 392 S.W.3d 662, 671 (Tex. Crim. App. 2013). We may sustain a defendant's factual sufficiency claim only if we determine that the verdict is so against the great weight of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased. Id. When addressing a factual sufficiency challenge, we defer to the jury's determination of the credibility of the witnesses and the weight to give the evidence. Smith v. State, 355 S.W.3d 138, 148 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd); Cleveland v. State, 177 S.W.3d 374, 388-89 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd).
To establish the affirmative defense of duress, a defendant must prove by a preponderance of the evidence that he committed the offense 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). Compulsion "exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure." Id. § 8.05(c); Edwards v. State, 106 S.W.3d 833, 843 (Tex. App.—Dallas 2003, pet. ref'd). "'Imminent' means something that is immediate, something that is going to happen now." Murkledove v. State, 437 S.W.3d 17, 25 () (citing Dewalt v. State, 307 S.W.3d437, 454 (Tex. App.—Austin 2010, pet. ref'd)). "Harm is imminent when there is an emergency situation and it is 'immediately necessary' to avoid that harm, in other words, when a 'split-second decision' is required without time to consider the law." Id. (quoting Pennington v. State, 54 S.W.3d 852, 857 (Tex. App.—Fort Worth 2001, pet. ref'd)). Imminence "has two components: (1) the person making the threat must intend and be prepared to carry out the threat immediately, and (2) the threat must be predicated on the threatened person's failure to commit the charged offense immediately." Cormier v. State, 540 S.W.3d 185, 190 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd) (); see also Ramirez v. State, 336 S.W.3d 846, 851 (Tex. App.—Amarillo 2011, pet. ref'd).
Imminent harm must be shown by affirmative evidence. Darty v. State, 994 S.W.2d 215, 218-19 (Tex. App.—San Antonio 1999, pet. ref'd). A threat of harm at some indefinite time in the future is insufficient to satisfy the requirement of imminence. Ramirez, 336 S.W.3d at 851-52; Anguish, 991 S.W.2d at 886. The defense of duress is not available "if the actor intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion." TEX. PENAL CODE ANN. § 8.05(d). Also, evidence of a generalized fear of harm is not sufficient to raise the issue of imminent harm. Brazelton v. State, 947 S.W.2d 644, 648 (Tex. App.—Fort Worth 1997, no pet.). If undisputed factsindicate a complete absence of immediate necessity or imminent harm, then a defendant's sincere belief that his conduct is immediately necessary to avoid imminent harm is unreasonable as a matter of law. Dewalt, 307 S.W.3d at 454.
As we discussed in our previous opinion,2 appellant attempted to show he participated in the charged offense under duress by pointing to evidence that Martin Armijo threatened him and pointed a gun at him. The record showed that Armijo had two handguns and an assault rifle in the garage where he tortured and killed Jonathan Gutierrez. In addition, the jury heard Avigail Villanueva testify that appellant seemed nervous when he picked her up at a gas station and drove her to the garage. Appellant's brother, Alex Moreno, testified that appellant looked scared when he arrived at his house on July 1, 2016. Dallas homicide Detective Pedro Trujillano testified that appellant became emotional during their July 1, 2016 interview, and both Trujillano and Detective Casey Shelton acknowledged that appellant repeatedly said he was frightened during the incident. Appellant told the detectives that Armijo pointed a rifle at him.
But the only evidence in the record suggesting Armijo threatened appellant with violence came from appellant's own account of the incident, which the jury was free to reject. Moreover, appellant's claim of duress was inconsistent with the evidence showing he twice left the garage alone—and returned—while Armijoremained and continued beating and torturing Gutierrez. Armijo's cell phone video showed appellant casually entering the room and walking around the bed while Armijo talked into the camera. The jury also could have considered the fact that appellant hesitated to report the incident, first picking up his mother and then going to his brother's house, where his brother insisted they call 911. Based on evidence such as this, the jury could have rationally concluded appellant was not faced with an imminent threat to himself or his mother. See, e.g., Murkledove, 437 S.W.3d at 25; Dewalt, 307 S.W.3d at 454.
There is evidence in the record that appellant feared Armijo; that he told detectives Armijo pointed a gun at him; and that he was afraid Armijo would harm his family. But while such evidence may circumstantially support a finding of duress, the entirety of the evidence does not preponderate in favor of such a finding, particularly given the evidence showing appellant repeatedly going to and from the offense location. After reviewing all the evidence in a neutral light, we conclude the jury's rejection of appellant's claim of duress was not so against the great weight and preponderance of the evidence as to be manifestly unjust. The evidence is, thus, factually sufficient to support the jury's rejection of appellant's duress defense. We overrule appellant's second issue.
Issue 4: Law of Parties
In his fourth issue, appellant contends the trial court erred in submitting a jury charge that included the law of parties.
When analyzing a claim of jury charge error on appeal, we first determine if there was an error, and if so, whether the error caused sufficient harm to warrant a reversal. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Under Almanza, the amount of harm necessary to warrant a reversal depends on whether the appellant objected to the alleged error in the jury charge. 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), superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim. App. 1988). If, as in this case, the appellant objected to the complained-of error in the jury charge, the record need only show he suffered some harm as a result of the error to obtain a reversal. Reeves, 420 S.W.3d at 816; Ngo, 175 S.W.3d at 743. This standard requires us to find the defendant "suffered some actual, rather than merely theoretical, harm from the error." Reeves, 420 S.W.3d, at 816. In evaluating whether there was some harm, we consider "the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other...
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