Duress is the defense for a person who committed a crime because someone else forced them to. Texas defines it narrowly, and it is an affirmative defense, meaning the burden is on the defense rather than the State.
What the Statute Says
(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 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.
The Two Tiers
| Offense charged | What must be shown |
|---|---|
| Felony | Threat of imminent death or serious bodily injury to the actor or another |
| Misdemeanor | Compulsion by force or threat of force — a materially lower bar |
The Limits That Defeat Most Duress Claims
Imminence. For a felony, the threatened harm must be imminent. A threat of harm at some point in the future — however credible — generally will not support the defense.
Person of reasonable firmness. The test is objective. The pressure must be such that a person of reasonable firmness could not have resisted it. A jury, not the defendant, decides that.
Voluntary exposure. The defense is unavailable if the actor intentionally, knowingly, or recklessly placed himself in a situation in which it was probable he would be subjected to compulsion. This is why duress rarely succeeds for someone who chose to associate with a criminal group and then claims they were forced to participate.
No defense to homicide in most circumstances. As a practical matter, duress is extremely difficult to sustain where a death resulted.
Duress in Practice
The defense appears most often in Harris County in drug courier cases, in offenses committed under pressure from an abusive partner, and in cases involving human trafficking victims. For trafficking victims there is a separate and often better provision — Section 8.09 — which provides an affirmative defense for certain offenses committed as a victim of trafficking or compelling prostitution.
Because the defendant carries the burden, raising duress means putting on evidence: testimony, prior reports of violence, medical records, text messages, and often expert testimony about coercive control.
Related
Charged in Harris County?
Brian Foley is Board Certified in Criminal Law by the Texas Board of Legal Specialization and a former Harris County Felony Chief Prosecutor; Luis Baez is a former Trial Bureau Chief. Call or text (713) 703-1718 for a free, confidential consultation.