"They told me they'd kill me if I didn't." Duress is one of the oldest defenses in criminal law, and Texas codifies it in Penal Code § 8.05. It is also one of the most misunderstood. Former prosecutor Brian Foley walks through what the statute actually requires in this video.
What the statute says
Section 8.05(a) provides that 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. For a misdemeanor, subsection (b) lowers the bar: compulsion by force or threat of force is enough. Compulsion exists only if the force or threat would render a person of reasonable firmness incapable of resisting the pressure.
The three things the defense turns on
Imminence. The threat has to be immediate. A threat of harm "next week if you don't" generally does not qualify, because the law expects you to seek help instead of committing the crime. This is the element prosecutors attack most often.
Reasonable firmness. The question is not whether you personally were frightened, but whether a person of reasonable firmness in your situation would have been unable to resist. Evidence of the threatener's history of violence, weapons, and the setting all matter.
No self-placement. Under § 8.05(d), the defense is unavailable if you intentionally, knowingly, or recklessly placed yourself in a situation where it was probable you would be subjected to compulsion — for example, by joining a criminal enterprise and then claiming you were forced to carry out its orders.
Affirmative defense: the burden is on you
Unlike self-defense, which the State must disprove beyond a reasonable doubt, duress is an affirmative defense — the defendant must prove it by a preponderance of the evidence. That makes early investigation critical: text messages, witnesses, 911 calls, and the threatener's record all need to be preserved before they disappear.
Duress comes up most often in drug courier, theft, and family-violence-related cases where one person was controlled by another. As former prosecutors, Brian Foley and Luis Baez know how the State evaluates a duress claim and how to build one that holds up. Explore more of the Texas Penal Code, or call or text (713) 703-1718 for a free consultation.