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My AccountChapter 6
- 6.1 General Comments on Voluntary Act
- 6.2 Terminology: Voluntary Act
- 6.3 Situations That Do and Do Not Put Voluntariness into Issue
- 6.4 Distinguishing Lack of Intent to Cause Result of Conduct from Lack of Culpable Mental State
- 6.5 Course of Conduct Including Voluntary and Involuntary Acts
- 6.6 Instruction—Lack of Voluntary Act
- 6.7 Culpable Mental States
- 6.8 Causation
- 6.9 General Comments on Transferred Intent
- 6.10 Instruction—Transferred Intent—Different Offense
- 6.11 Instruction—Transferred Intent—Different Person or Property
Comment
In some situations, the course of conduct by the defendant contains several physical acts, and the defense evidence puts into issue only the voluntariness of one or some of them.
In one early case, the court of criminal appeals explained:
[O]ne voluntarily engages in conduct when the conduct includes, inter alia, a voluntary act and its accompanying mental state, if any. That such conduct also includes an involuntary act does not necessarily render engaging in that conduct involuntary.5
5. The point is illustrated in the Practice Commentary with an example of an intoxicated driver charged with involuntary manslaughter—he “may not successfully defend with the argument he fell asleep before the collision . . .” Note, however, that he may claim his conduct constituted criminally negligent homicide. Ormsby v. State, 600 S.W.2d 782 (Tex. Cr. App. 1979).
George v. State, 681 S.W.2d 43, 45 & n.5 (Tex. Crim. App. 1984).
This analysis might be construed as meaning that a defendant cannot prevail by challenging the state’s proof of the voluntariness of the act constituting the crime if the act was part of a course of conduct that also included an admittedly voluntary act.
The discussion in George may, however, obscure the need to identify and specify the act on which criminal liability is sought. A driver who, while asleep, “drives” (in some sense of the term) his automobile into a victim and causes the victim’s death cannot be held criminally liable for a crime committed by the act of driving the vehicle into the victim. That driver may, however, be convicted of a crime committed before he fell asleep by driving with awareness (or under circumstances making his lack of awareness criminal negligence) that he might fall asleep and cause someone’s death. George simply makes clear that the fact that the course of conduct included an involuntary act does not mean liability cannot be based on a voluntary act performed during that same course of conduct.
In most of these situations, the most appropriate result may be to permit the jury to consider guilt of the charged offense or of a lesser included offense based on the earlier and admittedly voluntary act of the defendant. If this is done, the instructions might best make clear that the alternative theory of the charged offense or the lesser included offense (for example, driving while sleepy but before falling asleep) is based on a different physical act than is the state’s primary theory of the charged offense (for example, steering the car into the victim).