Brown v. State

OPINION ON THE STATE’S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

Appellant was charged by indictment with the offense of murder, pursuant to V.T.C.A. Penal Code § 19.02, alleged to have been committed on or about July 17, 1992, in Fort Bend County. In June of 1994, in the 268th Judicial District Court of Fort Bend County, appellant was found guilty by a jury. The court assessed punishment at imprisonment for 12 years confinement in the Texas Department of Criminal Justice, Institutional Division. The conviction and sentence were reversed by the Fourteenth Court of Appeals. Brown v. State, 906 S.W.2d 565 (Tex. App.—Houston [14th Dist.], 1995). We granted the State’s sole ground for review.

1. SUMMARY OF PERTINENT FACTS

The record reflects that on the evening of July 17, 1992, appellant was drinking beer and talking with friends in the parking lot of an apartment complex. Appellant was involved in an altercation with James McLean, an individual with whom he had an encounter one week prior, in which McLean and some other individuals had beaten appellant. Appellant testified that following the altercation on the day in question, he obtained a .25 caliber handgun in order to protect himself and his friends from McLean and his associates, who were known to possess and discharge firearms in the vicinity of the apartment complex. Appellant, who is right-handed, testified that he held the handgun in his left hand because of a debilitating injury to his right hand. Appellant testified that during the course of the events in question, the handgun accidentally fired when he was bumped from behind by another person, Coleman, while raising the handgun. Coleman testified that he bumped appellant and the handgun fired. Appellant testified that the shot that fatally wounded the victim, Joseph Caraballo, an acquaintance and associate of appellant, was fired accidentally.

II. COURT OF APPEALS’ HOLDING

The court of appeals held that it was reversible error to deny the defendant an affirmative defensive jury instruction regarding a required finding of voluntariness of the defendant’s act. The court of appeals, relying on George v. State, 681 S.W.2d 43 (Tex.Cr.App.1984), stated that “[w]here the evidence warrants it, a defendant is entitled to a requested charge on the issue of the voluntariness of his acts.” Brown, swpra at 567 (citing Garcia v. State, 605 S.W.2d 565 (Tex.Cr.App.1980)).

Additionally, the court of appeals stated that a “defendant’s testimony alone may be sufficient to raise a defensive theory requiring a [jury] charge.” Brown, supra, at 566-67 (citing Warren v. State, 565 S.W.2d 931 (Tex.Cr.App.1978); and Pimentel v. State, 710 S.W.2d 764 (Tex.App.—San Antonio 1986, pet. ref'd)).

Citing Simpkins v. State, 590 S.W.2d 129 (Tex.Cr.App.1979), the court of appeals also stated that because the “issue of accident, or involuntary conduct, was raised by the evidence in Simpkins, the defense properly requested and obtained an instruction on involuntary conduct.” Brown, supra, at 568.

Finally, the court of appeals cited Whitehead v. State, 696 S.W.2d 221 (Tex.App.— San Antonio 1985, pet. ref d) for the proposition that if the required “evidence of an independent event, such as the conduct of a third party,” is met, a defendant is entitled to an instruction on involuntary conduct. Brown, supra, 906 S.W.2d at 568.

III. STATE’S CLAIM

The State contends that at present, case law is divided with regard to the circumstances in which a jury instruction regarding voluntary conduct is required, thus necessitating a bright line rule.

The State asserts that “ Voluntariness’ is a part of, and subsumed by, the statutory requirement that the offense of murder be committed ‘intentionally’ or ‘knowingly’.” Thus, the State argues, appellant’s requested instruction on voluntary conduct would only be a denial of an element of the offense of murder, rather than a true defense to the charged offense. The State quotes from Cannon v. State, 691 S.W.2d 664, 676 (Tex.Cr.App.1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986), which stated that, “it is well established that ‘denial of a defendant’s requested instruction is not error where the requested instruction is an affirmative submission of a defensive issue which merely denies the existence of an essential element of the State’s ease.’ ”

Additionally, the State argues that “[I]f the absence of voluntary conduct is not a true ‘defense,’ an instruction thereon would seem to be an improper comment on the weight of the evidence.”

Finally, the State argues that Williams v. State, 630 S.W.2d 640 (Tex.Cr.App.1982) and Alford v. State, 866 S.W.2d 619 (Tex.Cr.App.1993) embody the “errant path” from which the “flawed ‘defense’ of voluntariness” flows. The State asserts that the Williams holding, followed by Alford, stands for the proposition that the “former defense of accident is now performed by the requirement of ‘voluntary action contained in Section 6.01(a) of the Penal Code.” Id. (citing Williams, supra, 630 S.W.2d at 644) (emphasis in original). Alford, the State argues, continued this trend in the “concept that the absence of ‘voluntary’ conduct constitutes a defense to prosecution that which is in some fashion distinct from the State’s burden of proving intentional or knowing conduct.” Citing the foregoing reasons, the State asks that this Court establish a bright line rule regarding the necessity of a voluntary conduct instruction in the jury charge.

IV. ANALYSIS

1. JURY INSTRUCTION

Appellant requested that the jury charge include a required finding of voluntariness with regard to the commission of the offense. The trial court denied appellant’s request.

Court’s Charge to Jury

The trial court’s charge to the jury stated in pertinent part:

Our law provides that a person commits the offense of murder if he intentionally or knowingly causes the death of an individual.

A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result.

A person acts knowingly, or with knowledge, with respect to a result of his eon-duct when he is aware that his conduct is reasonably certain to cause the result.

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A person is criminally responsible if the result would not have occurred but for his conduct....

Absent in the trial court’s charge to the jury is any mention of voluntary conduct on the part of the actor.

Appellant’s Requested Charge

Appellant’s requested jury charge, denied by the trial court, included a required finding of voluntariness. Specifically, appellant stated:

I would like an instruction on an involuntary act, that specifically being, you are instructed that a person commits an offense only if he voluntarily engages in conduct, including an act, omission, or possession[;] conduct is not rendered involuntary merely because a 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, Alfred Brown, did cause the death of Joseph Caraballo 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 and was not the voluntary act or conduct of the Defendant, you will acquit the Defendant and say by your verdict not guilty, (emphasis added).

2. EVIDENTIARY SUFFICIENCY

Any evidence raised and admitted at trial—regardless of its substantive character—that raises a defensive theory to the charged offense, requires a jury charge thereon.

A defendant is entitled to an affirmative defensive instruction on every issue raised by the evidence regardless of whether it is strong, feeble, unimpeached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief. The defendant’s testimony alone may be sufficient to raise a defensive theory requiring a charge. Williams v. State, supra, 630 S.W.2d at 643 (quoting Warren v. State, supra, 565 S.W.2d 931) (citations omitted).

Appellant testified at trial that the handgun in his possession accidentally discharged after he was bumped from behind by Ryan Coleman. Coleman also testified at trial that his bumping appellant precipitated the discharge of the gun and that idiosyneracies of the handgun may have also allowed its discharge.

This Court has previously held:

In determining whether any defensive charge should be given, the credibility of evidence or whether it is controverted or conflicts with other evidence in the case may not be considered. When a defensive theory is raised by evidence from any source and a charge is properly requested, it must be submitted to the jury, (citations omitted)_ This rule is designed to insure that the jury, not the judge, will decide the relative credibility of the evidence. (citation omitted). When a judge refuses to give an instruction on a defensive issue because the evidence supporting it is weak or unbelievable, he effectively substitutes his judgment on the weight of the evidence for that of the jury, (citation omitted). The weight of the evidence in support of an instruction is immaterial.

Woodfox v. State, 742 S.W.2d 408, 409-10 (Tex.Cr.App.1987).

Appellant’s own testimony may raise issues of sufficiency with regard to a required jury charge on voluntariness. “[C]onduct [is not] rendered involuntary merely because an accused does not intend the result of his conduct.” George, supra, 681 S.W.2d at 45. In the instant case, Coleman’s corroborating testimony simply added to the threshold evidentiary requirements consistent with this Court’s holdings in George and the cases cited therein. Thus, “[i]f the issue is raised by the evidence, a jury may be charged that a defendant should be acquitted if there is reasonable doubt as to whether he voluntarily engaged in the conduct of which he is accused.” Williams, supra, 630 S.W.2d at 644 (emphasis added).

The defendant in George was convicted of aggravated assault by shooting the victim with a handgun. The defendant testified at trial that the shooting was accidental, that “the hammer [of the handgun he was holding] slipped off [his] thumb.” George, supra, 681 S.W.2d at 47. In regard to the analysis of the defendant’s conduct, this Court said that “we hold as a matter of law the fact that when such conduct also includes a bodily movement of the accused sufficient for the gun to discharge a bullet, without more-such as precipitation by another individual, as in Garcia and Simpkins []—a jury need not be charged on the matter of whether the accused voluntarily engaged in the conduct with which he is charged.” Id. (emphasis added). The evidence admitted at appellant’s trial satisfies this requirement for an affirmative jury charge on voluntariness.

“[T]he issue of the voluntariness of one’s conduct, or bodily movements, is separate from the issue of one’s mental state.” Adanandus v. State, 866 S.W.2d 210, 230 (Tex.Cr.App.1993) (citing George, supra, 681 S.W.2d 43). The defendant in Adanandus was convicted of murder, committed in the course of robbery. The defendant requested a jury charge regarding voluntary conduct, asserting that the admitted evidence demonstrated that the fatal firing of the handgun resulted accidentally during a struggle with the victim. This Court, in overruling Adan-andus’ point of error and affirming the trial court’s finding, stated that “there is no evidence that the act of shooting the deceased was involuntary conduct. There is no evidence that [defendant] and the deceased struggled over the gun ... There is no evidence that the gun was involuntarily discharged.” Adanandus, supra, 866 S.W.2d at 230.

We have also recently held:

Section 6.01(a) of the Texas Penal Code states that a person commits an offense only if he engages in voluntary conduct, including an act, an omission, or possession. Only if the evidence raises reasonable doubt that the defendant voluntarily engaged in the conduct charged should the jury be instructed to acquit. George, [sm-pra]. “Voluntariness,” within the meaning of section 6.01(a), refers only to one’s physical bodily movements. Alford, [supra],

McFarland v. State, 928 S.W.2d 482, 513 (Tex.Cr.App.1996), cert. denied, — U.S. -, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997). While the defense of accident is no longer present in the penal code, this Court has long held that homicide that is not the result of voluntary conduct is not to be criminally punished. See Alford, supra, 866 S.W.2d at 622-24, and the cases cited therein.

The defendant in McFarland, was convicted of murder, committed in the course of robbery. As in Adanandus, the defendant requested a jury charge regarding voluntary conduct, asserting that the admitted evidence demonstrated that the fatal firing of the handgun may have resulted accidentally during a struggle with the victim. This Court, in overruling McFarland’s point of error and affirming the trial court’s finding, stated that at “[a]t no time does the record raise any evidence that [defendant’s] conduct was not voluntary ... Because [defendant] raises no evidence to show that he did not voluntarily engage in the conduct charged, the trial court did not err in refusing [defendant’s] requested instruction.” McFarland, supra, 928 S.W.2d at 513-14. There was no testimony from either McFarland or any other witnesses that raised and/or satisfied the evi-dentiary requirement for such a jury charge. Had such evidence been admitted, the trial court would have been required to submit the requested instruction thereon.

The State argues that voluntariness is subsumed by the “intentionally and knowingly” requirements of the offense of murder. This Court’s decisions in Williams, George, Alford, and Adanandus hold otherwise.

V. CONCLUSION

We hold that if the admitted evidence raises the issue of the conduct of the actor not being voluntary, then the jury shall be charged, when requested, on the issue of voluntariness. The trial court did not grant appellant’s request and the court of appeals correctly reversed the trial court. We hereby affirm the decision of the court of appeals.

. Appellant's ground reads:

The Court of Criminal Appeals should review its earlier decisions and establish a bright line rule regarding the necessity of a voluntary conduct instruction in the jury charge. The court of appeals erred in determining that the trial court should have submitted a jury instruction on "voluntary” conduct, as the state had the burden of proving beyond a reasonable doubt that the offense was committed "intentionally and knowingly", (sic) which by definition includes voluntarily.

. The record reveals that the deceased was not one of the persons appellant was at odds with, but a person aligned with appellant.

. As noted by one commentator, "[c]urrent statutory formulations rarely treat an involuntary act as a matter of defense. It is instead almost universally treated as a required element of every offense." Paul H. Robinson, 263 Criminal Law Defenses § 171(d) (1984).