Texas seeks to punish those whose criminal acts harm other people. But sometimes a defendant doesn’t act freely. Instead, he or she might only do something because someone has threatened them with bodily injury or even death. This is called acting under duress.
Under Penal Code section 8.05, duress is an affirmative defense to prosecution. Whether you can bring this defense is another question, which a Galveston criminal defense attorney at Tad Nelson & Associates will help you analyze.
The statute offers two definitions of duress.
First, you have an affirmative defense to criminal charges if you engaged in conduct because you were compelled to do so by threats of imminent death or serious bodily injury to yourself or another person. This is a defense to any criminal charge.
Second, you can raise duress for a non-felony if you can prove you engaged in the conduct because you were compelled by force or threats of force. Under this definition, you need to prove less. The force or threats do not have to cause “serious bodily injury” or death.
The statute also clarifies what it means to feel “compelled.” This isn’t a subjective standard based on what the defendant felt. Instead, it looks to whether a person of “reasonable firmness” would be able to resist the pressure. You can say this is an objective standard based on a hypothetical reasonable person. This definition of compelled is an important qualification. It keeps someone from unrealistically claiming they felt threatened with death by a minor threat or show of force.
Examples of Duress
When can you raise the defense? Here are some examples to consider:
- A person puts a gun to the back of your head and tells you to move money from your wife’s online checking account to an account owned by the gunman. Here, you have committed a crime because you weren’t authorized to move the money. But the gun to the back of your head is sufficient duress, so you can defend yourself by raising duress.
- A person carjacks you and tells you to run a red light while they hold a knife to your child’s throat. You do as told and slam into several pedestrians. Although you have committed vehicular assault, you acted under duress. The carjacker threatened imminent bodily harm to your child.
- A carjacker slaps you upside the head and tells you to run a red light. You slam into people in the crosswalk. In this example, you probably don’t have a duress defense. Why? Because you committed a felony, but the force used didn’t rise to the level of imminent death or serious bodily injury.
As you can see, we need to carefully review all facts to determine whether duress is appropriate. There are many factors, including the crime you are charged with, the amount of force used, and the likelihood of suffering a serious injury.
Find Out if Duress is a Defense for You
Contact Tad Nelson and Associates to schedule a complimentary consultation with one of our lawyers.