Comment

Fashioning an appropriate jury instruction concerning the so-called voluntary act requirement of Texas criminal law proved a considerable task for the Committee. This was in part because of uncertainty about precisely what is demanded by the requirement.

Texas Penal Code section 6.01(a) mandates that any act relied on as the basis for criminal liability be voluntary. The Code, however, contains no definition of the term voluntary.

Conceptually, this requirement of a voluntary act is distinct from the requirement of a culpable mental state and from other defenses, such as insanity.

Background of Section 6.01(a). In enacting Texas Penal Code section 6.01(a), the legislature rejected the State Bar Committee’s 1970 proposed language that would have provided: “A voluntary act is a bodily movement performed consciously as a result of effort or determination.” see State Bar Committee on Revision of the Penal Code, Texas Penal Code: A Proposed Revision § 6.01(b) (Final Draft Oct. 1970).

The legislature also failed to use language from the Model Penal Code that would have explicitly provided that the following are not voluntary acts:

1. a reflex or convulsion;
2. a bodily movement during unconsciousness or sleep;
3. conduct during hypnosis or resulting from hypnotic suggestion; or
4. a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.

See Alford v. State, 866 S.W.2d 619, 623 (Tex. Crim. App. 1993) (discussing legislative history of section 6.01).

Procedural Nature of Voluntariness Requirement. Voluntariness need not be pleaded in the charging instrument. Bermudez v. State, 533 S.W.2d 806, 807 (Tex. Crim. App. 1976).

Voluntariness is an issue—and an instruction is required—only if it is raised by the evidence. Alford, 866 S.W.2d at 624. Although this issue was not addressed in Alford, such a result would seem to be dictated by chapter 2 of the Texas Penal Code. Involuntariness of the act on which the state relies would seem to be “[a] ground of defense in a penal law that is not plainly labeled in accordance with [chapter 2 of the Penal Code].” Tex. Penal Code § 2.03(e). Under section 2.03(e), therefore, it “has the procedural and evidentiary consequences of a defense.”

The issue is to be submitted to the jury only if “evidence is admitted supporting the defense.” Tex. Penal Code § 2.03(c). If it is submitted, the burden of proof is on the state by proof beyond a reasonable doubt. See Tex. Penal Code § 2.03(d).

Section 6.01(b) and Voluntary Possession. Commentary and instructions based on Texas Penal Code section 6.01(b), the provision for possession as a voluntary act, can be found at CPJC 81.7 and CPJC 81.8.