The Duress Defense in the State of Texas


I want to help you obtain the most favorable outcome possible in your case.

  • Contact me today for a FREE case strategy meeting.
  • Available in-person, by phone, or by video.
Brett Pritchard Law

The Duress Defense in the State of Texas

If you are charged with a crime, bringing your strongest defense is naturally the first order of business. Generally, this involves demonstrating that you did not commit the crime in question, but this is not always the case. Affirmative defenses are those in which the accused admits to committing the crime, but he or she commits to proving that he or she has a legal defense for having done so, and one form of affirmative defense in the State of Texas is the defense of duress. When a person commits a crime in response to threats made against his or her life, the defense of duress may apply. If you are coerced into committing a crime via extreme pressure, you can be said to have done so under duress. In essence, duress means doing something at the violent behest of someone else – and not doing it of your own volition. If this is the situation you find yourself in, do not wait to consult with a practiced criminal defense attorney with considerable experience successfully defending clients via affirmative defense strategies.

The Legal Definition of Duress

In the State of Texas, duress is considered an affirmative defense, which means it is a viable justification for doing something that – under different circumstances – would be a criminal act. If the accused engaged in criminal conduct in response to someone else credibly threatening him or her (or credibly threatening someone else) with imminent death or serious bodily injury, he or she may be able to employ a duress defense. If the criminal act in question was not a felony, the accused could use the duress defense if he or she engaged in the criminal conduct in question in response to someone else compelling him or her with force or the threat of force. It is important to note, however, that the accused cannot invoke the duress defense if he or she knowingly, recklessly, or intentionally landed himself or herself in a situation in which he or she was likely to be subjected to a compulsion of this nature. Acting under the command of one’s spouse – unless force or the threat of force is involved – is similarly off-limits for a defense of duress.

Proving Duress

When someone is accused of a crime, the prosecution shoulders the legal burden of proving his or her guilt beyond a reasonable doubt. This means, in essence, that it would be unreasonable to believe that he or she is not guilty. When, however, a defendant uses an affirmative defense such as the duress defense, he or she must prove via a preponderance of the evidence that the criminal conduct he or she engaged in was due to someone else’s force or threat of force. The preponderance of the evidence means that it is more likely true than not true (a less onerous level of proof than beyond a reasonable doubt but one that the defendant himself or herself must shoulder). If, however, the defendant should have reasonably foreseen that putting himself or herself in the situation at hand could have led to the commission of a crime, the defense of duress is not valid.

Successful Duress Defenses

In order to bring a successful duress defense, the defendant must prove that one of two scenarios applies.

The Threat of Imminent Death or Serious Bodily Injury

If the accused was threatened with either imminent death or serious bodily injury, it means that the prospect of death or serious injury was immediate (not a threat of future harm), and not carrying out the criminal activity would have tripped one of these dire consequences (either imminent death or imminent serious bodily injury). Being threatened with serious harm in the future does not reach the necessary level.

The Use of Force or the Threat of Force

If the accused is charged with a crime that is not a felony, the use of actual force or the threat of force for failing to commit the crime in question can qualify as a duress defense. In other words, if the accused was threatened with a beating for not committing a specific criminal act, a duress defense may apply, but if the threat related to the theft of the accused’s car (for example), it would not.

Necessity vs. Duress

The defense of necessity is very similar to the defense of duress in the sense that the defendant in question commits a crime (that he or she otherwise would not have) as a result of specific adverse circumstances. Further, neither defense holds if the accused had a reasonable alternative to committing the crime in question. The defense of necessity, however, does not involve being coerced by another person, such as with the threat of violence, serious injury, or even death. A person who commits a crime out of necessity does so when the benefit of committing the crime in question outweighs the harm affected by the crime’s commission. A simple way to explain this is that the crime the defendant committed can be considered the lesser of two evils. The basic parts of a necessity defense include:

  • The defendant’s criminal act was committed in response to an emergency in an attempt to prevent significant bodily harm to himself or herself or to someone else.

  • The defendant had no adequate legal alternative other than committing the crime in question.

  • The defendant’s criminal action did not increase the level of danger or the extent of the evil inherent to the action that he or she avoided.

  • When the defendant acted, he or she believed that the criminal action was necessary to prevent another threatened harm.

  • Other reasonable people would have believed the same (that the act was necessary to prevent another threatened harm).

  • The defendant did not contribute substantially to the emergency situation in question.

For a defense of necessity, the burden of proof – a preponderance of the evidence – also falls to the defendant. In other words, the work lies with the accused (not the prosecution).

Dixon v. United States: A History of the Duress Defense

In Dixon v. United States, the U.S. Supreme Court took on the issue of whether the burden of proof regarding duress lies with the defendant (with a preponderance of the evidence) or with the prosecution (with proof beyond a reasonable doubt). The following case details apply:

  • The defendant claimed that her boyfriend was abusive and that he threatened to kill her and/or her children if she did not carry out his orders.

  • She alleged that he coerced her to attend a Texas gun show and purchase a firearm illegally – using a false address and lying about the fact that she was under indictment for a felony.

  • The defendant was convicted on the charges she faced (after the trial judge barred a witness from testifying in relation to the battered woman syndrome she suffered from).

  • The defendant appealed her conviction, but it was ultimately rejected by the Fifth Circuit Court of Appeals, which found that previous cases clearly established that duress must be proven by the defendant with a preponderance of the evidence (although this ruling conflicted with a similar case in the Sixth Circuit Court of Appeals).

  • The defendant’s attorney highlighted the fact that 29 states required that the prosecution disprove duress defenses (and only 14 required the accused to establish his or her own defense of coercion or duress).

  • Ultimately, the Supreme Court ruled that placing the burden of proof – in the form of the preponderance of the evidence – on the defendant did not violate the United States Constitution’s Due Process Clause.


The answers to some of the most frequently asked questions – as they relate to affirmative defenses – may help address some of your own related concerns.

What is an affirmative defense?

An affirmative defense is one in which the defendant provides valid reasons for why he or she committed the crime in question. In other words, even if what your accuser charges you with is true, an affirmative defense can help you avoid a conviction. Most affirmative defenses must be asserted by the defendant, which means that you – as the accused – must admit to having committed the crime for such and such reason (your affirmative defense).

What is the primary difference between defense of necessity and one of duress?

Both duress and necessity defenses are affirmative defenses that forward a reason why the accused engaged in a criminal act. The defense of duress, however, involves someone else’s coercion, and the defense of necessity involves no other person but, instead, amounts to a crime being committed in a bid to affect the lesser of two evils.

How does preponderance of the evidence differ from beyond a reasonable doubt?

When the court convicts someone of a crime, the standard of proof that must be upheld by the prosecution is beyond a reasonable doubt, which is a complex construct, but at its most basic, it means that it is not reasonable to find the accused not guilty. However, when the defendant uses an affirmative defense, such as either duress or necessity, he or she admits to having committed a crime, and as such, – in the State of Texas – takes on the burden of proof upon himself or herself. In this situation, he or she must prove with a preponderance of the evidence that the criminal act in question was justified in the eyes of the law. A preponderance of the evidence means that it is more likely to be true than not.

Do I need an attorney?

If you are facing a criminal charge, you owe it to yourself to work closely with an experienced criminal defense attorney. If your defense strategy is an affirmative defense, the matter is even more clear. Affirmative defenses are challenging, and because bringing your strongest defense is paramount, having a dedicated criminal defense attorney in your corner is strongly advised. The fact is that a conviction can leave you facing serious penalties and fines, and because a conviction is a matter of public record, there are also harsh social consequences to consider, including the following:

  • An overall downturn in your social standing

  • Inability to rent a home or to obtain a home loan to buy one

  • Difficulty finding work

  • Inability to obtain a student loan and further your education and career prospects

  • Loss of professional licensure

If you are facing a criminal charge, it is time to reach out to an accomplished criminal defense attorney.

What are the primary elements of a duress defense?

The primary components of any duress defense include:

  • The accused must have faced the threat of serious bodily harm or death (in relation to the crime in question).

  • The harm threatened must have been greater than that of the crime committed.

  • The threat in question must have been in the moment and inescapable (the threat of future harm does not suffice).

  • The accused must have become involved in the situation at hand through no fault of his or her own.

Turn to an Experienced Killeen Criminal Defense Attorney for the Legal Guidance You Need

If you are facing a criminal charge of any kind, bringing a tight defense is critical to obtaining an optimal outcome that supports your best future. Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a trusted criminal defense attorney who recognizes the gravity of your situation and is here to help you throughout the challenging legal process ahead. Mr. Pritchard and his knowledgeable legal team dedicate their impressive practice to helping clients like you obtain favorable case resolutions, and we are here for you, too. To learn more about how we can help, please do not wait to reach out and contact us online or call us at 254-501-4040 today. Your future is too important to put off this critical first step in defense of your legal rights.


Related Posts
  • Domestic Violence: Alternatives to Incarceration in Texas Read More
  • What Happens If You Violate Parole for the First Time? Read More
  • When a Minor Is Charged with a Crime in Texas Read More