Chapter 6
Culpability
6.6 Instruction—Lack of Voluntary Act
[Insert instructions for underlying offense.]
If you all agree the state has proved, beyond a reasonable doubt, each of the [number] elements listed above, you must next consider whether the state has proved the necessary voluntary act.
Voluntary Conduct
A person commits an offense only if the person voluntarily engages in an act constituting an offense. An act is a bodily movement.
An act is voluntary if it is performed consciously as a result of effort or determination.
An act is not voluntary if it is the nonvolitional result of another person’s act or it is set in motion by some independent nonhuman force.
The requirement that the act constituting the offense be voluntary is separate and distinct from the requirement that the defendant have acted with one or more culpable mental states. You have found that the state has proved the defendant acted with the required culpable mental state[s]. Now you must address the different question of whether the defendant’s act has been proved voluntary.
Burden of Proof
The defendant is not required to prove that his act constituting the offense was involuntary. Rather, the state must prove, beyond a reasonable doubt, that the act was voluntary.
Application of Law to Facts
To decide the issue of voluntariness, you must determine whether the state has proved, beyond a reasonable doubt, that the defendant’s act [insert specific act, e.g., of pulling the trigger on the gun] was voluntary.
You must all agree that the state has proved the act was voluntary.
If you find that the state has failed to prove, beyond a reasonable doubt, that the act was voluntary, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the elements of the offense of [insert specific offense], and you believe, beyond a reasonable doubt, that the defendant acted voluntarily, you must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Comment
The defense of lack of voluntary act is provided for in Tex. Penal Code § 6.01(a).
Specific Aspects of Voluntariness Requirement. The Committee considered instructions that would focus on specific aspects of the voluntariness requirement as that requirement has been developed under the appellate case law, such as if the evidence suggested unconsciousness.
Such an instruction might be written as follows:
Voluntary Conduct
A person commits an offense only if the person voluntarily engages in an act constituting an offense. An act is a bodily movement.
An act is voluntary only if it is performed consciously as a result of effort or determination.
An act is not voluntary if it is performed while the person is asleep or unconscious.
The requirement that the act constituting the offense be voluntary is separate and distinct from the requirement that the defendant have acted with one or more culpable mental states. You have found that the state has proved the defendant acted with the required culpable mental state[s]. Now you must address the different question of whether the defendant’s act has been proved voluntary.
A majority of the Committee, however, decided that the law regarding the content of the voluntariness requirement and the propriety of instructions going beyond the statutory language was sufficiently uncertain that the Committee would not recommend such instructions.