Comment

Traditionally, jury instructions on the voluntary act requirement have, in the abstract portion, told the jury the basic law from Texas Penal Code section 6.01(a) and then added, “Conduct is not rendered involuntary merely because the person did not intend the results of his conduct.”

In 1979, this language was held in Simpkins v. State, 590 S.W.2d 129, 135 (Tex. Crim. App. 1979), to “correctly state[] the law as found in V.T.C.A. Penal Code, Secs. 6.01(a) and 6.02(a). See Dockery v. State [542 S.W.2d 644, 650 (Tex. Crim. App. 1975) (opinion on motion for rehearing)].” Simpkins was followed in Sims v. State, No. 01-06-00060-CR, 2007 WL 1559828 (Tex. App.—Houston [1st Dist.] May 31, 2007) (not designated for publication), aff’d, 273 S.W.3d 291 (Tex. Crim. App. 2008).

Sims explained that the language was not error because “it is not error for the jury to be instructed that there is a difference between involuntary conduct and unintentional conduct such that the absence of one does not dictate the absence of the other.” Sims, 2007 WL 1559828, at *3. Thus the legitimate purpose of the language seems to be to explicitly tell juries that the requirement of a voluntary act is distinct from the requirements of culpable mental states and that proof of the second does not necessarily mean proof of the first.

The requirement of a voluntary act is, however, independent of any and all culpable mental state requirements, not simply those requiring the defendant to intend the result of his conduct. Instructions based on the Simpkins language suggest the voluntary act requirement is independent only of culpable mental state requirements concerning result elements.

This state of the law contains some potential for confusion. Culpable mental state requirements and the voluntary act demand are, theoretically, independent. In fact, if the only voluntariness issue is impaired consciousness, they may not, as a practical matter, be independent. In most situations, it is unlikely that a jury would find the state has proved the required culpable mental state but not that the act was committed consciously.

Under current practice, this confusion is arguably obscured by failing to mention the required culpable mental state in the application portion.

The Committee believed the danger of confusion is sufficient that some cautionary mention of the matter is appropriate. It suggests substituting the traditional caution approved in Simpkins, 590 S.W.2d at 135 (“Conduct is not rendered involuntary merely because the person did not intend the results of his conduct.”), with a paragraph stressing that this issue is distinct from any culpable mental issue presented by the instructions on the elements of the offense.