dissenting
I respectfully dissent from the majority opinion because the trial court erred by failing to submit an instruction on duress in the jury charge which applied the law of duress to the specific facts of duress raised by the evidence. Accordingly, this case should have been reversed and remanded.
When a jury charge error is reviewed on appeal, an appellate court must determine: (1) whether error exists in the jury charge, and (2) whether sufficient harm was caused by the error to require reversal. See Hutch v. State, 922 S.W.2d 166, 170 (Tex.Crim.App.1996). When evidence from any source raises a defensive issue, and the defendant properly requests a jury charge on that issue, the trial court must submit the issue to the jury. See Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App.1993). A defendant is generally entitled to an affirmative defense instruction on every issue raised by the evidence, regardless of whether it is strong, weak, contradicted, unimpeached, or unbelievable. See id. As the majority has stated, the affirmative defense of duress arises when there is some evidence the defendant “engaged in the proscribed conduct because he was compelled to do so by the threat of imminent death or serious bodily injury to himself or another.” See Tex.Pen.Code.Ann. § 8.05 (Vernon 1994). In a felony prosecution, the defendant must prove by a preponderance of the evidence that she compelled to commit the offense by threat of serious bodily injury or death, and that such consequence was imminent. See id.
Swails’s third point of error complains of error in instructing the jury on duress. When reviewing charge errors, we must engage in a two-step analysis: first, we must determine whether error actually exists in the charge, and second, we must determine whether sufficient harm resulted from the error to require reversal. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984).
To receive due process, “[t]he law must come from the court, the facts must be decided by the jury, and the charge, to instruct the jury properly, must apply the law to the facts raised by the evidence.” Williams v. State, 547 S.W.2d 18, 20 (Tex.Crim.App.1977); see also Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994); Doyle v. State, 631 S.W.2d 732, 738 (Tex.Crim.App.1980). The purpose of the charge is “to lead the juiy to the threshold of its duty: to decide those facts.” Williams, 547 S.W.2d at 20. As the court of criminal appeals has duly noted, the integrity of a verdict is called into question when the jury has not been properly charged on the application of the law to the facts. A failure to provide a neutral, unbiased instruction on duress leaves the jury to choose competing applications from partisan advocates. See id. “Consequently, an erroneous or an incomplete jury charge jeopardizes a defendant’s right to a jury trial because it fails to properly guide the jury in its fact-finding function.” Abdnor, 871 S.W.2d at 731.
Evidence of Duress
In the instant case, there is evidence that Connie was operating under an imminent or present threat to her life. For example, in Connie’s statement, she testified that she had a long abusive relationship with the perpetrator, Kevin, that included stalking her when they were no longer together. On the day of the murder, Kevin had beaten her two or three times and strangled her because she did not have any money. After Kevin beat Connie, he made her drive around in the car with him on the day of the murder. Kevin told Connie they were going to rob this old man and kill him because he wanted his money and his guns. When they got to the victim’s house, Kevin went to the door first with a 2000 volt stun gun in his hand. Kevin *48shocked the victim with the stun gun and then told Connie to get out of the car and help him. Kevin threatened to kill Connie if she did not help him. Connie said she went into that house because she had to. In the house, Kevin was yelling for something to strangle the victim with and Connie gave him the radio because she was in fear of her life. After the murder, when Kevin and Connie were driving toward San Antonio, Kevin yelled, screamed and terrorized Connie, and told her he would kill her, too. Kevin made Connie marry him three or four days later, so she would not testify against him.
Moreover, the expert testimony of Melissa Jay Eddy contained evidence that Connie was operating under an imminent threat to her life. The psychologist and licensed professional counselor, whose expertise is in the field of domestic violence with services to battered women, testified that Connie Swails was definitely abused by Kevin. The psychologist further testified that Connie’s behavior was characteristic of someone who had been abused. Eddy testified that Kevin presented a very serious threat to Connie, possibly death “at that time.” Given the circumstances of the murder, in which Connie visibly observed Kevin killing the victim and received threats, herself, if she did not assist him, it is logical that Connie felt threatened and compelled to help Kevin or risk losing her life.
The majority opinion concludes this to be insufficient to raise the affirmative defense of duress on the assumption that Kevin’s threat to harm Connie if she did not comply, that he would hunt her down and kill her if she did not go inside Blanke’s house, was a threat of future, not imminent, harm. Hence, any error in presenting a mere general charge on duress to the jury, if any, was harmless.
The majority’s assumption implies that Connie was necessarily free to leave the scene during the murder. There is no evidence to that effect in the record, however. The scene of the murder is located in rural Bandera County. Although the photographic exhibits suggest other lake homes in close proximity to the Blanke home, there is no testimony that any of these homes were occupied at the time of the offense so as to serve as an immediate source of aid or sanctuary. The car driven to the scene was parked next to the front door, just a few steps from where Kevin was yelling his threats of violence to Connie. There is no evidence in the record as to who controlled the keys to the car. Would a person of reasonable firmness, who had suffered three beatings that very day from him, have considered Kevin’s threats and commands to present only future danger to her under these circumstances? I think not.
Moreover, in the expert opinion of Melissa Jay Eddy, Connie had every reason to believe that Kevin’s threats against her were real and imminent. As she testified:
[S]o, in the context of having already been recipient of this kind of threatening, overtly and covertly, indirectly, that just kind of threatening behavior, including direct verbal threats to kill her, then in the context of a situation where she’s observing him in the process of killing another individual, she would have every reason to believe, in my opinion, that this threat right then that if she didn’t do exactly what he wanted her to do at that moment, that he would also turn around and kill her. She had every reason to find that threat totally credible and to be very afraid of that threat.
The evidence presented, that Connie was operating under an imminent threat to her life, raised the issue of duress. Appellant’s counsel duly objected that the instruction on duress1 the court intended to give did not *49apply the law of duress to the specific facts of this case and requested that the instruction refer to a specific threat by Kevin Swails. The trial court overruled this objection and denied the requested instruction.
Harm, Analysis
The standard to determine whether there is sufficient harm resulting from the inadequate instruction to require reversal depends upon whether the appellant objected. As there was a timely objection at the trial, we need find only “some harm” to require a reversal. See to Rule 81(b)(2); Haynie v. State, 751 S.W.2d 878 (Tex.Crim.App.1988); see also Almanza v. State, 686 S.W.2d at 171(error “calculated to injure the rights of the defendant” must be no more than “some harm to the accused from the error” to warrant reversal); Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986) (“the presence of any harm, regardless of degree ... is sufficient to require a reversal”)(modifying Almanza); Abdnor v. State, 871 S.W.2d at 731-32. We may affirm this conviction only if no harm has occurred as a result of the charge error. See Arline, 721 S.W.2d at 351. Our analysis of “some harm” requires an examination of the entire trial record to determine whether appellant might have been acquitted, convicted of a lesser offense, assessed a more lenient punishment, or advantaged in some other significant manner, had the trial judge properly instructed the jury on the application of the law of duress to the facts of the case. See LaPoint v. State, 750 S.W.2d 180, 190 (Tex.Crim.App.1986). Where error was properly preserved at trial, any harm, regardless of the degree, is sufficient to require a reversal of the conviction. See Birch v. State, 948 S.W.2d 880, 885 (Tex.App.—San Antonio 1997).
The jury was only asked to consider Connie’s guilt or innocence with regard to capital murder. It did not have the option to consider lesser-included offenses. Reviewing the charge on duress and the manner in which the State utilized it in its closing argument, we find the State’s version of this instruction:
It [the defense of duress] is unavailable if the actor intentionally, knowingly or reek-lessly placed herself in a situation where she probably would become subject to compulsion; and then the charging paragraph dealing with the duress defense: If you find that, in fact, those circumstances existed, which is put in a situation where Connie Gail Landers Swails had no choice but to go in and strangle Mr. Waldo Blanke and kill him in his house, then you let her go. You acquit her.
Following the closing defense argument which described the evidence of duress, the State characterized the defense of duress as having “to do with condoning, if you will, the conduct of a defendant who’s charged with ... murder.” Appellant’s counsel objected to this characterization of duress, however, the trial court overruled the objection. The State expanded on this theme to suggest that a finding of duress is the equivalent of “a license to kill, there are very few cases that this wouldn’t apply [to].” Without the benefit of an unbiased court-sanctioned version of the facts of duress to use as a guidepost, the jury heard the State argue that there was no evidence that she was in “imminent danger” and the proof of that is the fact that Connie wasn’t killed, she survived the ordeal and continued to live with Kevin after the murder. The law does not require one to suffer death in order to establish duress as an excuse to criminal conduct. Indeed, if, as the evidence suggests, Kevin regularly beat Connie when she did not immediately provide what he wanted at any given moment, Connie, as a victim of domestic violence, would likely reasonably believe that danger of serious bodily injury was “near at hand.” See Bryant v. State, 905 S.W.2d 457, 459 (Tex.App.—Waco 1995, pet. ref'd). The jury was deprived of a fair assessment of the facts raising the duress defense in the court’s charge, and I would find “some harm” in that omission.
Connie Swails was entitled to a specific application of the duress instruction in the jury charge. Because the majority holds otherwise, I dissent.
. The application paragraph to the charge on duress stated:
Now, therefore, if you find from the evidence, beyond a reasonable doubt that the defendant did commit the offense of capital murder, as alleged in the indictment and hereinbefore defined in this charge, but you further find by a preponderance of the evidence that the defendant engaged in the proscribed conduct, to-wit: capital murder, because she was compelled to do so by threat of imminent death or serious bodily injury to herself, and further, that such threats, if any, were such threats of force as would render a person of reasonable firmness incapable of resisting the pressure, and that defendant was in fear of imminent loss of her life or serious bodily injury if she did not participate in the capital murder and that so believing, she did participate therein, *49then you will acquit the defendant and say by your verdict "not guilty.”