Chapter 6
Culpability
6.2 Terminology: Voluntary Act
“Voluntary” Generally. In several discussions the court of criminal appeals has addressed the meaning of voluntary in connection with that term’s inclusion in Texas Penal Code section 6.01(a).
In Alford v. State, 866 S.W.2d 619, 623 (Tex. Crim. App. 1993), the court noted, “Webster’s definition of the term ‘voluntary’ includes at least eight variations, some of which are considerably broader than others and many of which equate intentional conduct with voluntary conduct.” Although acknowledging that most of these variations include “a concept of free will,” Alford concluded that the term as used in section 6.01(a) did not incorporate such a concept. Alford, 866 S.W.2d at 623–24.
Rogers v. State, 105 S.W.3d 630 (Tex. Crim. App. 2003), held that a request for an instruction on “accident” is not a request for an instruction on section 6.01(a)’s voluntary act requirement. In the course of its discussion, Rogers observed:
“Voluntariness,” within the meaning of Section 6.01(a), refers only to one’s own physical body movements. If those physical movements are the nonvolitional result of someone else’s act, are set in motion by some independent non-human force, are caused by a physical reflex or convulsion, or are the product of unconsciousness, hypnosis or other nonvolitional impetus, that movement is not voluntary.
Rogers, 105 S.W.3d at 638 (footnotes omitted).
The court of criminal appeals has not addressed whether voluntariness may or should ever be defined in the jury instructions. Alford, of course, argues for such a definition. It indicates that the term has multiple (and inconsistent) meanings in ordinary usage. Further, it suggests that the term as used in this part of the law has a meaning somewhat narrower than many of the “plain meanings.” Alford, 866 S.W.2d at 623–24.
“Accident” Distinguished. In 1982, the court observed:
There is no law and defense of accident in the present penal code, and the bench and bar would be well advised to avoid the term “accident” in connection with offenses defined by the present penal code. The function of the former defense of accident is performed now by the requirement of V.T.C.A., Penal Code, Section 6.01(a), that, “A person commits an offense only if he voluntarily engages in conduct . . . .”
Williams v. State, 630 S.W.2d 640, 644 (Tex. Crim. App. 1982) (citation omitted).
Perhaps because of the court’s suggestion that section 6.01(a) serves the function of former accident law, considerable confusion has persisted about whether some of the substance and terminology of old accident law can and should be used in applying section 6.01(a) voluntary act law.
Current Practice. Current practice is to instruct juries in little more than the language of the Texas Penal Code. The instruction used in Simpkins v. State, 590 S.W.2d 129 (Tex. Crim. App. 1979), disapproved on other grounds in Lugo v. State, 667 S.W.2d 144, 147 (Tex. Crim. App. 1984), is still typical of those instructions that make a meaningful effort to apply the law to the facts:
You are instructed that a person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession. Conduct is not rendered involuntary merely because the person did not intend the results of his conduct. Therefore, if you believe from the evidence beyond a reasonable doubt that on the occasion in question the defendant, David Michael Simpkins, did cause the death of JOHN MILTON by shooting him with a gun, as alleged in the indictment, but you further believe from the evidence, or have a reasonable doubt thereof, that the shooting was the result of an accidental discharge of the gun while Alvin Giddings and the defendant were struggling or scuffling for the possession of the gun and was not the voluntary act or conduct of the defendant, you will acquit the defendant and say by your verdict not guilty.
Simpkins, 590 S.W.2d at 135.
Comment
Act, Conduct, Etc. Texas Penal Code section 6.01(a) requires that a defendant have voluntarily engaged “in conduct, including an act, an omission, or possession.” Tex. Penal Code § 6.01(a). Section 1.07(a)(10) defines conduct as “an act or omission and its accompanying mental state.” Tex. Penal Code § 1.07(a)(10).
Section 6.01(a) uses the term conduct to make clear that the requirement of voluntariness applies to omissions and possession as well as to physical acts.
In most situations, however, the state’s theory of the case will rely on an act and involve no question of omission liability or of liability for possession not fitting neatly into the category of either act or omission. There is no need in these cases to confuse matters by shifting language between conduct and acts. Clearly, when as in these cases the state relies on some physical act of the defendant’s, there is no need to use the term conduct in the instructions. Thus the instruction uses only act.
Obviously, if liability is sought based on an omission, the instruction will need to be modified.