Terry Joe Solley v. State ( 2009 )

Affirmed and Memorandum Opinion filed February 19, 2009

Affirmed and Memorandum Opinion filed February 19, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-00803-CR

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TERRY JOE SOLLEY, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 1125854

M E M O R A N D U M  O P I N I O N

A jury convicted appellant, Terry Joe Solley, of aggravated robbery with a deadly weapon and sentenced him to thirty-five years= confinement.  On appeal, he claims the trial court improperly excluded factual and expert testimony supporting his affirmative defense of duress.  Because we conclude the trial court did not abuse its discretion in excluding the testimony, we affirm.

Background

On March 25, 2006, appellant and his father, Vachel Solley, robbed a bank.  They were apprehended by police when they attempted to flee the scene in separate vehicles.  Appellant evaded police on foot when they stopped the car he was driving, forcing them to chase him through a neighborhood before arresting him.  Appellant was ultimately indicted for aggravated robbery.  He pleaded not guilty, contending he was acting under duress from his father when he committed the robbery.  Appellant was thirty years old at the time.

At trial, appellant testified on direct examination that his father had a history of violence, armed robbery, and had served time in prison.  On the day in question, he believed his father was desperate and would likely get himself or someone else killed if he proceeded with the crime alone.  According to his testimony, appellant agreed to commit the robbery with his father Aso no one would get hurt.@  On cross-examination, appellant admitted that his father had not physically threatened him to force his cooperation.  He also admitted to three prior convictions for armed robbery.

On redirect, appellant testified further to a difficult childhood and a dysfunctional family.  Among other things, he witnessed his father physically abuse his mother and engage in other sporadic violent acts.  He testified that his father was emotionally abusive toward him, although never physically abusive.  When he was asked to elaborate further about the relationship, the prosecutor objected to the relevance of the testimony.  Outside of the presence of the jury, appellant claimed that his father had gotten him drunk as a child, encouraged him to fight other children in the neighborhood, and forced him to assist in the commission of several robberies.  He generally claimed that his father had manipulated him since childhood.

The trial court excluded appellant=s proffered testimony and also refused appellant=s later request to introduce expert testimony on the nature of his relationship with his father.  At the conclusion of the trial, the jury found appellant guilty of aggravated robbery with a deadly weapon and sentenced him to thirty-five years= confinement.  In two issues presented on appeal, appellant argues the trial court improperly excluded his testimony and the potential expert testimony, both of which he contends were relevant to his duress defense.

Analysis

  Standard of Review

We review a trial court=s decision to exclude evidence under an abuse of discretion standard.  Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001).  A trial court abuses its discretion if its decision lies outside the zone of reasonable disagreement.  Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).  In determining whether the trial court abused its discretion, we review the ruling in light of the evidence that was before the court at the time of its ruling.  Hoyos v. State, 982 S.W.2d 419, 422 (Tex. Crim. App. 1998).

  Relevancy of Appellant=s Testimony of Duress

In his first issue, appellant argues that his excluded testimony was relevant to show that, consistent with his affirmative defense of duress, he was compelled to commit the robbery.  Duress requires proof by the defendant that he committed an offense Abecause 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) (Vernon 2003).  In analyzing the applicability of a duress defense, we focus on the conduct of the person allegedly making the threats.  See Montgomery v. State, 588 S.W.2d 950, 953 (Tex. Crim. App. 1979).  To establish compulsion, a defendant must prove that Athe force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.@  Tex. Penal Code Ann. ' 8.05(c) (Vernon 2003); Guia v. State, 220 S.W.3d 197, 205 (Tex. App.CDallas 2007, pet. ref=d).  To be relevant to a defense of duress, evidence of a threat of imminent death or serious bodily harm must be a present threat.  Smith v. State, 949 S.W.2d 333, 336 (Tex. App.CTyler 1996, pet. ref=d); Kessler v. State, 850 S.W.2d 217, 222 (Tex. App.CFort Worth 1993, no pet.).

Virtually all of appellant=s excluded testimony referred to alleged instances of his father=s manipulative conduct during appellant=s childhood many years earlier, a time period far too remote for these events to qualify as an Aimminent@ threat.  See McDowell v. State, 235 S.W.3d 294, 297 (Tex. App.CTexarkana 2007, no pet.) (AA threat made six months before the threatened event is not an imminent threat.@); Anguish v. State, 991 S.W.2d 883, 886B87 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d) (holding threat made four days prior to robbery was not imminent); Smith, 949 S.W.2d at 336 (concluding that threat made four months earlier was not imminent).  Because the excluded factual testimony did not relate to an imminent threat, the trial judge did not abuse her discretion by deciding the proffered evidence was irrelevant to appellant=s duress defense.  See Anguish, 991 S.W.2d at 887; Smith, 949 S.W.2d at 336B37.

The remaining evidence at issue dealt with his father=s previously referenced general history of erratic and dysfunctional episodes.  None of the evidence, however, did more than imply that appellant had a general and ongoing apprehension about his father.  Such a general fear about another individual does not constitute the degree of compulsion necessary for a duress finding.  See Cameron v. State, 925 S.W.2d 246, 250 (Tex. App.CEl Paso 1995, no pet.); Bernal v. State, 647 S.W.2d 699, 706 (Tex. App.CSan Antonio 1982, no pet.).  In addition, the excluded testimony was essentially cumulative of evidence otherwise before the jury.  Accordingly, the trial court did not abuse its discretion in excluding the additional similar testimony.  See Tex. R. Evid. 403; Kessler, 850 S.W.2d at 222.

Appellant relies heavily on United States v. Willis to support his assertion that the proffered evidence should have been admitted as relevant to his duress defense.  38 F.3d 170 (5th Cir. 1994).  However, it is legally and factually distinct from the instant case. In Willis, the defendant was convicted of carrying a firearm during the commission of a drug trafficking crime.  Id. at 173.  On appeal, she challenged the trial court=s exclusion of expert testimony suggesting she suffered from battered woman syndrome.  Id. at 174B75.  The Fifth Circuit, however, held the expert testimony was too subjective and otherwise not relevant to the objective inquiry of whether a crime was committed under duress.  Id. at 177. 

Appellant claims Willis supports his contention that his factual testimony should have been admitted because, although the Willis court did not allow the expert testimony, it permitted substantial latitude in introducing factual testimony to support duress.  Id. at 174.  His reliance is misplaced. The admissibility of that testimony was neither challenged nor raised as an issue on appeal.  See id. at 174.  Because the Willis court did not address the admissibility of the accused=s testimony, Willis is not instructive here. 

For the reasons set forth above, we hold that the trial court did not abuse its discretion when it refused to admit these portions of appellant=s testimony.  We overrule appellant=s first issue.

   Exclusion of Expert Testimony

We need not address appellants= argument regarding exclusion of his expert=s testimony because we find that error was not properly preserved for our review.  To preserve a complaint that the trial court erroneously excluded evidence, the complaining party must bring forward a record indicating the nature of the evidence so that we might decide its admissibility and impact, if any, on the proceedings.  See Tex. R. App. P. 33.1, 33.2; Tex. R. Evid. 103(a)(2).  Thus, unless the substance of the excluded evidence is apparent from the context of the record, the offering party must present a timely offer of proof or formal bill of exception.  Tex. R. Evid. 103(a); Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999).  Because the record must be developed before the charge is read to the jury, an offer of proof or bill of exception is untimely if not presented before then.  See Tex. R. Evid. 103(b); Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998). 

In this case, outside of the jury=s presence, appellant=s counsel briefly indicated that he intended to call a social worker as an expert who would testify on the general topics of family dynamics, family history, and appellant=s relationship with his father.  An offer of proof may come in the form of a concise statement by counsel, but it must include a reasonably specific summary of the evidence offered.  Warner, 969 S.W.2d at 2.  If brought in that form, counsel=s statement must also explain the relevance of the evidence unless the relevance is apparent.  See id.  We hold that counsel=s identification of the mere topics of the expert=s likely testimony does not qualify as a Areasonably specific summary@ of the evidence.  See Harty v. State, 229 S.W.3d 849, 855 (Tex. App.CTexarkana 2007, pet. ref=d).

Appellant later offered to call his expert to the stand to prepare a formal bill of exception.  However, he then formally withdrew his request.  In the absence of a bill of exception or offer of proof, the record in this case does not indicate what the excluded testimony would have been at the guilt/innocence phase.  See Guidry, 9 S.W.3d at 153.

During the punishment phase, the trial court allowed appellant=s expert to testify about appellant=s relationship with his father. Because the evidence was offered after the court=s charge was read to the jury, however, it cannot qualify as an offer of proof that would otherwise preserve error during the guilt/innocence phase.  See Tex. R. Evid. 103(b); Warner, 969 S.W.2d at 2.  Therefore, we overrule appellant=s second issue.

Conclusion

Finding no error in the appellate record, we affirm.

/s/      Kent C. Sullivan

Justice

Panel consists of Justices Yates, Guzman, and Sullivan.

Do Not Publish C Tex. R. App. P. 47.2(b).