dissenting.
Appellant’s sole contention is that the trial court reversibly erred in its instruction to the jury on the issue of duress. I would sustain this contention and reverse.
The record reflects that on July 24, 1974, appellant was observed driving recklessly on South Shepherd Street in Houston. In the 1700 block of South Shepherd, near the Hobbit Hole Club, he ran into an automobile driven by Warren Gourney.
Houston Police Officers R. F. Foulis and J. L. Scott investigated the accident. Based on their experience and their observations of appellant, both Foulis and Scott concluded that the appellant was intoxicated.
Both officers testified that the appellant had a badly split and bleeding lip at the time of their arrival at the scene of the accident. However, both also stated that appellant told them at the time that this injury was not a product of the collision but was instead the result of an earlier fight at a bar.
Houston Police Officer G. W. Anderson testified that he was a certified breathalyzer operator. On July 24, 1974, the appel*810lant, who appeared to be intoxicated, was brought into Anderson’s office. The appellant agreed to submit to a breath test. Anderson gave him the test, which showed that appellant’s blood was 0.20% alcohol. The parties stipulated that the breath testing machine functioned properly at the time of this test.
Bobby Cantu, testifying on behalf of the appellant, stated that he was the owner of a topless “go-go club” called the Diablo Club. On July 24, 1974, he arrived at the club at 5:00 p. m. and found appellant “causing trouble.” According to Cantu, appellant was table-hopping and interfering with the waitresses. After attempting several times to persuade appellant to sit down, Cantu saw appellant spill a drink. Cantu stated that appellant had had a good deal to drink by this time, which Cantu estimated to be approximately 6:00 p. m.
Cantu then ordered appellant to leave the Diablo Club and escorted appellant out the door. Once outside, the two men began arguing. Cantu believed that appellant was about to hit him, so he punched appellant on the mouth. According to Cantu, he then told appellant to leave “before I hit him again.” Appellant ran to his car and left.
The appellant took the stand and attempted to explain away his disruptive behavior. However, he admitted that much of Cantu’s testimony was accurate and that he was intoxicated when he left the Diablo Club at approximately 5:40 p. m.
Agreeing with Cantu’s testimony, appellant stated that shortly after he walked outside the Diablo Club Cantu misinterpreted a gesture of appellant’s and hit the appellant, knocking him down. The appellant testified that at this time Cantu was “really, really irate, very angry.”
The appellant also testified that Cantu’s threats included a threat to kill appellant if appellant did not leave the area immediately. In response to these threats, appellant ran to his car and drove away.
The appellant also testified that he had previously arranged to meet Doug Harrison in the club’s parking lot at 6:00 p. m. Aware of his intoxication, appellant intended to have Harrison drive him away from the club, but his enforced departure twenty minutes before 6:00 o’clock made this meeting impossible.
The appellant also stated that if he had not been forced by Cantu’s blow and threats to leave immediately, he would not have driven in his intoxicated condition. He- also testified that if he had not been forced to leave, and if Harrison had not come to the parking lot as scheduled, he would then have gone inside the club and used the telephone there to call for a taxi. These actions were foreclosed, according to appellant, by his fear that Cantu would kill him.
The appellant testified that when he left the Diablo Club he was on his way to the Hobbit Hole Club to use that club’s telephone. It was during this trip that he had the collision with Gourney. Appellant acknowledged that the distance between the Diablo Club and the Hobbit Hole was approximately eighteen blocks; he stated, however, that he did not stop sooner to call a cab because he “was just so shook up and scared I just kept going and tried to get to the Hobbit Hole where I knew some people.”
The trial court charged the jury on the defense of duress. However, as part of this instruction the court charged the jury as follows:
“To render duress a defense to a criminal charge, the act must be done when the party threatening the duress is actually present. The party is actually present if he is in such proximity to the place where the act is done as to have control over the person threatened.”
This instruction was a proper one under our former Penal Code. Article 38, V.A. P.C.; Paris v. State, 35 Tex.Cr.R. 82, 31 S.W. 855 (1895).1
*811The appellant objected to this portion of the court’s definition of duress and requested the following special charge:
“In a prosecution for an offense that does not constitute a felony, it is an affirmative defense to prosecution that the defendant engaged in the proscribed conduct because he was compelled to do so by force or threat of force.
“Compulsion exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.
“The defense provided by this section is unavailable if the defendant intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion.
“The burden of proof is on the defendant to prove an affirmative defense by a preponderance of the evidence. The term ‘preponderance of the evidence’ means the greater weight of credible evidence.
“Now, therefore, if you find and believe from the evidence beyond a reasonable doubt that the defendant did commit the offense of driving while intoxicated as alleged in the information, but you further find by a preponderance of the evidence that the defendant engaged in the proscribed conduct because he was compelled to do so by force or threat of force, you will acquit the defendant and say by your verdict ‘not guilty.’ ”2
Article 38 has been replaced by Section 8.05 of the 1974 Penal Code, which provides as follows:
“Sec. 8.05. Duress
“(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.
*812“(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.”
A reading of Section 8.05 reveals that the requirement of actual presence has been removed from our duress statute. Instead, our current statute provides that one raises the affirmative defense of duress in misdemeanor cases where the evidence suggests that the accused was compelled to commit the offense by force or the threat of force. V.T.C.A., Penal Code, Section 8.05(b). Such compulsion “exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.” Y.T.C.A., Penal Code, Section 8.05(c).
In felony cases, however, the accused is put to a significantly greater burden in raising duress as an affirmative defense.3 He must show that his criminal act was compelled by the “threat of imminent death or serious bodily injury to himself or another.” V.T.C.A., Penal Code, Section 8.05(a).
This distinction between felonies and misdemeanors is important for two reasons. First, it reveals a Legislative intention to make the affirmative defense of duress more readily available to those charged with misdemeanors; unquestionably an accused has a lesser burden when he is attempting to show that he was coerced by force or the threat of force than he does in proving that he was compelled to act by a threat of imminent death or serious bodily injury. See V.T.C.A., Penal Code, Section 1.07(a)(34).
However, a second, and — for this case— more important, feature of this distinction between felony and misdemeanor duress is that in felony cases the compulsion must be “imminent” while in misdemeanor cases there is no requirement that the compulsion be close in time. Accord: Practice Commentary to Section 8.05, 1 V.T.C.A., Penal Code, page 234.
This distinction is important because it indicates that the Legislature was aware of time limitations when it drafted Section 8.05. Support for this view can be found by comparing Section 8.05 with the two statutes from which it was derived: Section 2.09 of the Model Penal Code4 and Section 8.04 of the 1970 State Bar Proposed Revision of the Texas Penal Code.5 Those two *813proposed statutes are so similar to Section 8,05 in both language and structure that one can scarcely doubt that the two earlier statutes were the models for the duress statute which the Legislature ultimately adopted.
However, there are two basic differences between Section 8.05 and its two models: its distinction between felony and misdemeanor duress, and its imposition of a time limitation on felony duress that is not imposed on misdemeanor duress.
From this I can only conclude that the Legislature was aware of time limitations when it drafted the duress statute. It follows that although an imminent threat is required to raise the defense in a felony case, the force or threat of force involved in misdemeanor duress need not be imminent or even close in time.
It also follows that a Legislature which made these careful distinctions between time limitations was equally aware of distance, or locational, limitations, and that it knew it was abolishing the requirement that the person threatening the duress be physically present. Indeed, considering the clear and explicit language of Article 38(3) of the former Code, no other conclusion can be reasonably defended.
I would therefore hold that Section 8.05 means what it says: In misdemeanor cases, the affirmative defense of duress is not expressly limited by either time or distance, and actual presence is not explicitly required.6 What is required is that the accused be compelled by force or the threat of force which would render a person of reasonable firmness incapable of resisting the pressure.7 It follows that the court’s charge in this case was erroneous.
The majority holds, however, that the error in the charge was harmless, even if it be conceded that actual presence is no longer required by the statute. The majority argues that the appellant was not entitled to a charge on duress at all, since there was no testimony that anyone forced him to drive an automobile or to become intoxicated.
The majority apparently considers the appellant’s testimony to be without value. The appellant testified that Cantu had struck him and knocked him to the ground; that Cantu was extremely angry; and that Cantu threatened to kill him if he did not leave immediately. This testimony was sufficient to raise the issue of the existence of the affirmative defense of duress. In responding to the kind of “force and threat of force” exerted here by Cantu, a person of reasonable firmness would be justified in yielding to this pressure by attempting to get away from the Diablo Club as quickly as possible, even if it meant driving while intoxicated. Compare White v. State, supra; Harris v. State, 91 Tex.Cr.R. 446, 241 S.W. 175 (1922).
In this regard, it should be remembered that the offense did not occur only at the location of the collision — that location is merely the place where the offense was first discerned by police officers. In fact, the evidence is undisputed that appellant began committing the offense as soon as he left the parking lot of the Diablo Club. See Graves v. State, 539 S.W.2d 890 (Tex.Cr. App.1976) (majority and concurring opinions).
Therefore, I would hold that the appellant in this case did raise the affirmative defense of duress.
*814Moreover, it is well settled that the accused in a criminal case is entitled to a charge on every defensive theory raised by the testimony “whether the evidence is produced by the State or by the defense, whether it is strong or feeble, whether it is unimpeached or contradicted or whether it is conflicting.” 31 Tex.Jur.2d, Instructions, Sec. 110, p. 660, quoted with approval in Gautheir v. State, 496 S.W.2d 584, 585 (Tex.Cr.App.1973). Accord: Thompson v. State, 521 S.W.2d 621 (Tex.Cr.App.1974). Cf. V.T.C.A., Penal Code, See. 2.04(c).8
What this means in this case is that just as the State presented evidence which, if believed, showed that the appellant was guilty of the statutory offense charged, so had the appellant given testimony which, if believed, established the statutory affirmative defense of duress. Therefore, just as the State was entitled to have its case correctly presented to the jury unburdened by an instructed verdict of acquittal, so was the appellant entitled to a correct charge which embodied the evidence brought out by the defense. It is not important to know whether the trial judge believed the State’s evidence or that of the appellant — or neither; both were equally entitled to a proper charge.
Nor is it important whether this Court believes or disbelieves the appellant’s testimony; in either event he is entitled to have that testimony fairly considered by the jury. In Harris v. State, supra, and White v. State, supra, this Court held that the issue of duress is a fact issue for the jury. Therefore, when such a question is raised by the evidence, the jury must be charged on the law of duress. White v. State, supra.
However, where the accused does receive a charge on duress, but that charge places upon him a greater burden than the statute allows, he is entitled to a new trial. Stafford v. State, 104 Tex.Cr.R. 493, 284 S.W. 581 (1926).
In the case before us the court’s charge required the jurors to find that Cantu was actually present before they could find in favor of the appellant on the issue of duress. This was error which cannot be la-belled harmless,9 since it placed a burden on the appellant which he was not required to meet. Stafford v. State, supra.
Because the appellant was entitled to a charge on duress, and because he received a charge which placed an unlawful burden of proof upon him, the judgment should be reversed and the cause remanded.
. Article 38 provided:
“A person forced by threats or actual violence to do an act is not liable to punishment for the same. Such threats, however, must be—
“1. Loss of life or personal injury.
*811“2. Such as are calculated to intimidate a person of ordinary firmness.
“3. The act must be done when the person threatening is actually present.
“The violence must be such actual force as restrains the person from escaping, or such ill-treatment as is calculated to render him incapable of resistance.”
In Paris, the court held:
“While it is true that the literal language of the article in question requires the party du-ressing another to do an unlawful act to be actually present at the time, yet we apprehend that a proper construction of this section means only that the person shall be so near as to have the party with the means at his command under his power and control at the time he does the act; and a person 20 or 30 paces from the immediate place of the killing, armed with a pistol or shotgun, might have the person doing the act as much within his power and control as if he was only a few feet distant from him when he performs the act. In one sense, W. G. Parish was actually present at the time of the killing, and the language of the court might embrace the idea of his actual presence, but yet it may have been misunderstood, and the jury might have been misled thereby, and believed that the court required them to find that he was at the immediate spot of the killing before they would allow the defense of duress . . . .”
Paris v. State, supra at 95-96, 31 S.W. at 858.
Thus the holding in Paris makes it clear that although Article 38 required actual presence, the issue of duress was raised under our former Code whenever the evidence suggested that the accused was in such close proximity to the person threatening him that that person had “power and control” over the accused.
. Appellant’s objection to the charge and his special requested charge were timely filed in writing with the court. See Arts. 36.14, 36.15, V.A.C.C.P.; McCloud v. State, 527 S.W.2d 885 (Tex.Cr.App.1975). The court overruled the objection and denied the requested charge.
. This greater burden for felony duress is similar to the provisions of duress statutes in those states which have refused to recognize the defense at all for the most serious crimes. See comment to Section 2.09 (Duress as a Defense), ALI, Model Penal Code, Tentative Draft No. 10, p. 2.
. “Section 2.09. Duress.
“(1) It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.
“(2) The defense provided by this Section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged.
“(3) It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under this Section. [The presumption that a woman, acting in the presence of her husband, is coerced is abolished.]
“(4) When the conduct of the actor would otherwise be justifiable under Section 3.02, this Section does not preclude such defense.” ALI, Model Penal Code, Proposed Official Draft, p. 40.
.“Sec. 8.04. Duress
“(a) It is a defense to prosecution that the actor engaged in the conduct charged to constitute an offense because he reasonably believed he was compelled to do so by the threat or use of unlawful force against his person or the person of another, which threat or use of unlawful force a person of ordinary firmness in the actor’s situation would not have resisted.
“(b) 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.
“(c) It is no defense that a woman acted at the command or persuasion of her husband, unless she acted under compulsion that would establish a defense under this section.
“(d) If the actor’s conduct is otherwise justifiable under Section 9.21 (necessity), this sec*813tion does not preclude that justification.” Tex. Pen.Code: A Proposed Revision, p. 70 (1970).
. This is not to say that time and distance can never be factors in determining the issue of duress; in many cases they will be factors. However, they should not be conclusive factors; they should be pertinent only to the extent that they support the statutory definition of duress.
. It should be remembered that in Texas duress has traditionally been a defense created solely by statute. See V.T.C.A., Penal Code, Sec. 8.05 (1974); Art. 38, V.A.P.C. (1925); Art. 44, Vernon’s Tex.Cr.St. (1916); Art. 43, Tex.Pen.Code (1879); Art. 45, Tex.Pen.Code (1856); Stanley v. State, 16 Tex.App. 392 (Austin Term, 1884); Paris v. State, supra; White v. State, 150 Tex.Cr.R. 546, 203 S.W.2d 222 (1947). Compare Marks v. State, 144 Tex.Cr.R. 509, 164 S.W.2d 690 (1942).
. Section 2.04(c) provides:
“The issue of the existence of an affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense.”
. This Court has held that the “harmless error” provisions of Art. 36.19, V.A.C.C.P., by their own terms apply only when the requirements of Articles 36.14, 36.15, 36.16, 36.17, and 36.18, V.A.C.C.P., have not been complied with. Dowden v. State, 537 S.W.2d 5, 6, n. 1 (Tex.Cr.App.1976). As noted earlier, the appellant in this case did comply with Articles 36.14 and 36.15 by timely filing, in writing, his objection to the court’s charge and his special requested charge. Article 36.19 does not apply. Dowden v. State, supra.