Chapter 6
Culpability
6.3 Situations That Do and Do Not Put Voluntariness into Issue
Situations Putting Voluntariness into Issue Generally. Case discussions have tended to discuss voluntariness in terms of what evidence would show that a physical movement is not voluntary.
The Rogers discussion, for example, stated that physical movements are not voluntary “[i]f 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.” Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim. App. 2003).
A major question in voluntariness law is whether the above or some similar list is exclusive.
Impaired Consciousness. Rogers, 105 S.W.3d at 638–39, noted that a defendant’s physical movement such as pulling the trigger on a gun is not voluntary if that movement is “the product of unconsciousness.” Mendenhall v. State, 77 S.W.3d 815, 816 (Tex. Crim. App. 2002), indicated that a jury issue on voluntariness was generated by evidence that “the [charged] assault occurred during a brief episode in which [the defendant] was unconscious or semi-conscious due to hypoglycemia (i.e., low blood sugar).” The court explained that—
[p]ersons who were unconscious or semi-conscious at the time of the alleged offense may argue . . . that they did not engage in a voluntary act, see Tex. Pen. Code § 6.01(a). See Alford v. State, 866 S.W.2d 619, 625 (Tex. Crim. App. 1993) (Clinton, J., concurring) (“voluntary” act means conscious act).
Mendenhall, 77 S.W.3d at 818 (footnote omitted). See also Arcement v. State, No. 06-08-00130-CR, 2009 WL 383398, at *6 (Tex. App.—Texarkana Feb. 18, 2009, no pet.) (not designated for publication) (defendant who testified that acts constituting child molestation occurred while he was asleep would probably have been entitled to instruction on voluntary act if he had requested it).
Logically, it would seem that in many cases a requirement of consciousness at least overlaps with the requirement of a culpable mental state. The almost classic scenario arises when the defendant is charged with intentionally or knowingly causing the death of the victim by shooting him with a gun. The defendant testifies he did not intentionally pull the trigger on the gun; perhaps he adds that he bumped a wall, causing his finger on the trigger to move and the gun to discharge. Is it possible a jury might find the state has proved that the defendant intended to kill the victim but did not consciously pull the trigger to accomplish this?
Brown, 955 S.W.2d at 279–80, appears to conclusively reject the proposition that a proper instruction on the required culpable mental state renders unnecessary an instruction on the voluntary act requirement.
If Texas Penal Code section 6.01(a) requires an act to be conscious, how conscious must the defendant have been? Mendenhall suggests that a jury issue can be raised by evidence that the defendant was semiconscious at the time of the conduct constituting the offense. Conceptually, it would seem that the instructions should assist the jury in determining how conscious the state must prove the defendant was. On the other hand, there is no standard readily ascertainable from either the statute or the case law for making this decision.
Apparently no cases have addressed contentions that defendants are entitled to have jury instructions state explicitly that a voluntary act must be performed while conscious.
Movement Caused by Independent Force. “If [one’s] physical movement [is] the nonvolitional result of someone else’s act [or is] set in motion by some independent non-human force . . . that movement is not voluntary.” Rogers, 105 S.W.3d at 638 (footnotes omitted).
When the defendant was charged with intentionally or knowingly causing the death of another by shooting that person with a gun, for example, a jury issue on voluntariness was raised by evidence that he did not intentionally pull the trigger but that the gun discharged accidentally when the defendant was bumped by another person. Brown, 955 S.W.2d 276.
Unexplained Denial That Act Was Volitional. Is a jury instruction required by evidence that does not indicate some independent cause of the physical movement but only that the movement occurred? The question is presented if a defendant testifies, “I did not intend to pull the trigger. The gun just went off.” The case law suggests an instruction is not required. An instruction may even be inappropriate.
Evidence in one case indicated that after shooting the victim the defendant said, “Oh, my God, I done killed her. . . . It was an accident.” Joiner v. State, 727 S.W.2d 534, 537 (Tex. Crim. App. 1987). No instruction on voluntary act was required.
In George v. State, 681 S.W.2d 43 (Tex. Crim. App. 1984), the defendant was charged with aggravated assault by intentionally, knowingly, and recklessly causing serious bodily injury to another by shooting him with a handgun. A gun the defendant was holding to the head of the victim discharged, injuring the victim. At trial, the defendant testified he did not intend to discharge the gun: “[T]he hammer slipped off my thumb,” and the gun “went off.” George, 681 S.W.2d at 43. This was held not to require a jury instruction on voluntariness. George, 681 S.W.2d at 47. See also Adanandus v. State, 866 S.W.2d 210, 229–30 (Tex. Crim. App. 1993) (testimony that gun went off as defendant was stumbling backward did not require instruction on voluntary act, as “there is no evidence that the gun fired on its own volition”).
One court of appeals has read these cases as quite dramatically limiting the situations in which an instruction is required.
[W]hen a defendant’s conduct includes a bodily movement sufficient to discharge a bullet, unless there is more, such as precipitation by another individual, “a jury need not be charged on the matter of whether the accused voluntarily engaged in the conduct with which he is charged.” [Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997)] (citing George v. State, 681 S.W.2d 43, 47 (Tex. Crim. App. 1984)).
Appellant’s bare assertion that the firing of the pistol was accidental does not raise the issue of voluntariness. An accused’s testimony that a weapon “accidentally went off” or that he “didn’t intend to shoot but that it was an accident,” does not raise the issue of the voluntariness of his conduct. Gerber v. State, 845 S.W.2d 460, 467 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d); see also Joiner v. State, 727 S.W.2d 534, 536 (Tex. Crim. App. 1987) (holding that request for instruction on voluntariness was properly denied because bare assertions of lack of intent and accidental discharge do not raise issue of absence of voluntary conduct).
To be entitled to an instruction on involuntary conduct there must be “evidence of an independent event, such as the conduct of a third party, which could have precipitated the discharge of the bullet.” Brown v. State, 906 S.W.2d 565, 568 (Tex. App.—Houston [14th Dist.] 1995), aff’d, 955 S.W.2d 276 (Tex. Crim. App. 1997).
Rodgers v. State, No. 01-03-00850-CR, 2004 WL 2363830, at *2 (Tex. App.—Houston [1st Dist.] Oct. 1, 2004, no pet.) (not designated for publication).
This seems inconsistent with general principles of jury submission. A defendant’s failure to provide an explanation for his claim that the act was not volitional may, of course, cause a jury to discredit it. But that failure—as a logical matter—should not deprive the defendant of the right to go to the jury with proper instructions on the applicable law.
Comment
Situations Not Putting Voluntariness into Issue. Several types of situations do not, under the case law, generate an issue of voluntariness under Texas Penal Code section 6.01(a).
First, a claim that the defendant did not have the required culpable mental state regarding conduct constituting an element of the offense does not generate a voluntariness issue. This is despite the fact that voluntariness replaces the pre-1974 defense of accident, which did in some situations address that matter. Cf. Brown v. State, 955 S.W.2d 276 (Tex. Crim. App. 1997) (despite jury instruction in murder case requiring proof that defendant intentionally or knowingly caused death of victim, defendant was entitled to instruction that pulling of trigger must have been a voluntary act).
Second, no voluntariness issue is generated by a claim that the defendant’s decision to intentionally engage in the conduct was influenced by pressure that arguably meant the defendant did not exercise free will. Proof of duress does not show that the conduct constituting the crime was not voluntary in the sense of section 6.01(a). Alford v. State, 866 S.W.2d 619, 623–24 (Tex. Crim. App. 1993). See also Brown v. State, 89 S.W.3d 630, 633 (Tex. Crim. App. 2002) (taking marijuana into correctional facility was voluntary despite evidence that defendant was in custody and under restraint and thus, in one sense, was compelled to enter into facility).