Alfred E. BROWN, Appellant, v. The STATE of Texas.
No. 1045-95.
Court of Criminal Appeals of Texas, En Banc.
Sept. 10, 1997.
The Court‘s opinion does not set out the facts related above. Nor does it tell us that petitioner, in her brief, concedes that the release language in its entirety satisfies the express negligence requirement of Ethyl Corp. v. Daniel Const. Co., 725 S.W.2d 705, 708 (Tex.1987). It appears to me that the petitioner had to be able to read and understand the release to be able to concede that the release clause satisfies the express negligence requirement. Furthermore, it follows that the release also meets the conspicuousness test. Again, all that the test requires for a clause to be conspicuous is that it is written so a reasonable person against whom it is to operate should have noticed it. Cate, 790 S.W.2d at 560.
I agree with the court of appeals’ conclusion that when one considers all the circumstances, instead of just solely the print size, the release language draws a reader‘s attention. Therefore, I believe, as the court of appeals held, that the release language is conspicuous as a matter of law. I would deny the writ.
Because the Court reaches a contrary conclusion, I respectfully dissent.
Ralph L. Gonzalez, Richmond, for appellant.
Before the court en banc.
OPINION ON THE STATE‘S PETITION FOR DISCRETIONARY REVIEW
OVERSTREET, Judge.
Appellant was charged by indictment with the offense of murder, pursuant to
I. 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.2
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, supra at 567 (cit-
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, 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 case.‘”
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
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 con-
duct when he is aware that his conduct is reasonably certain to cause the result. *
*
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 theo-
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 idiosyncracies 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 evi- dence. (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).
“[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 Adanandus’ 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, [supra]. “Voluntariness,” within the mean-ing 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, 519 U.S. 1119, 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 evidentiary 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.
PRICE, Judge, dissenting.
I respectfully dissent to the majority‘s decision to affirm the court of appeals because I do not believe that
I.
Despite the majority‘s claim that “case law is clear regarding voluntariness and the evidentiary requirements for a jury charge thereon,” prior case law reveals that the decision to include a voluntary conduct charge often turned on untenable factual distinctions. Maj. op. at 280.
This Court‘s first opportunity to interpret
It is difficult to ascertain why Judge Roberts interpreted
In Garcia v. State, 605 S.W.2d 565 (Tex. Crim.App.1980), the defendant and the deceased were walking together along a canal. The deceased gave the defendant a handgun with the hammer “already pulled.” Id. at 566. When the defendant told the deceased that he was going to throw the gun into the canal, the deceased grabbed the defendant‘s elbow with one hand and the gun with the other in an attempt to take it away from defendant. At this point, the gun went off. This Court held that this testimony was sufficient to raise an issue of fact as to “the voluntariness of defendant‘s conduct,” and further stated that an accused is entitled to an instruction on every defensive matter raised by the evidence. Id. at 566 (citing Esparza v. State, 520 S.W.2d 891 (Tex.Crim.App.1975)).
This Court in Williams v. State, 630 S.W.2d 640 (Tex.Crim.App.1982) (opinion on reh‘g), formally denounced the “defense” of accident. In Williams the defendant and the complainant quarreled in their car after leaving a bar together. While driving, defendant claimed that the complainant grabbed the steering wheel and caused him to “slam on the brakes” to avoid an accident. Id. at 642. Complainant injured her nose when she hit the car‘s windshield. The defendant argued that he was entitled to a defensive charge on accident because he did not intend the resulting injuries. Id. at 644. We disagreed. This Court explained that “there is no law on the defense of accident in the present penal code, and the bench and bar would be well advised to avoid the term ‘accident’ in connection with offenses defined by the present penal code.” Id. But, in the next sentence we held that “the function of the former defense of accident is performed now by the requirement of
This theory was later compromised by our discussion in Joiner v. State, 727 S.W.2d 534 (Tex.Crim.App.1987), where we quote Justice Butt‘s dissent from the lower court for the proposition that voluntary conduct is separate from the culpable mental state. In Joiner, defendant and the victim argued over money. Appellant hit the victim and the victim “bucked” defendant. Id. at 535. In response, defendant then pulled a gun and pointed it at the victim‘s head. The gun discharged, killing her. Defendant then cried out, “Oh my God, I done killed her.... It was an accident.” Id. We held that the facts of this case did not entitle defendant to a charge on the absence of voluntary conduct.
Recently, this court again attempted to clarify the purpose of
The common link in these cases is the continued assertion that the former defense of accident is now performed by
II.
The inquiry begins with the literal text of the statute. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). We start here because the literal text of the statute is the law-it is the version approved and adopted by the legislators. Id. It is the only definitive evidence of the legislators’ intent. Furthermore, we are constitutionally required to follow the text adopted by the Legislature. See
With the foregoing in mind, I turn to
Conducting a plain meaning analysis reveals that
III.
In 1973 the Legislature enacted our present Penal Code. Although
What we basically do, members, is we track existing law in regard to culpability, the general provisions pertaining to culpability, the criminal responsibility for conduct of another, the criminal defenses, the defenses to criminal responsibility and the justifications excluding criminal responsibility .... all of Title 2 basically recodifies existing law. Your committee tried as best as we could to track existing law, to clean up the language.... ⁴
Debate on Tex. H.B. 514 on the Floor of the House, 63rd Leg., R.S. (May 21, 1973) (tape recording available from the Texas Legislature). It is difficult to glean legislative intent from these brief general comments.
The practice commentary to
The enacted Penal Code does not contain a definition of “voluntary act.” However, the 1970 proposed Code did. Id. It defined a “voluntary act” as “a bodily movement performed consciously as a result of effort or determination.” Id. The practice commentary explains that despite the deletion, “the willed act requirement remains, probably as an element of due process, although because of the deletion this section does not state completely this basic principle.” Id. In other words, for conduct to support criminal responsibility, the conduct must “include a voluntary act ... so that, for example, a drunk driver charged with involuntary manslaughter may not successfully defend with the argument he fell asleep before the collision since his conduct included the voluntary act of starting up and driving the car.” Id. Interestingly, these comments suggest that one voluntary act-regardless of subsequent acts-may form a basis for criminal responsibility.
Because the Legislature expressed an intent to model our Code after the Model Penal Code, we may also look to the Model Code for guidance.
The following are not voluntary acts within the meaning of this Section:
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep;
(c) conduct during hypnosis or resulting from hypnotic suggestion;
(d) a bodily movement that otherwise is not a product of the effort or determi-nation of the actor, either conscious or habitual.
MODEL PENAL CODE § 2.01. The Model Penal Code attempts to define a voluntary act in terms of conditions which render an act involuntary. WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., 180 HANDBOOK ON CRIMINAL LAW § 25 (1972). I would adopt this definition of voluntary conduct and disavow Alford‘s definition.
Although a voluntary act is an absolute requirement for criminal liability, it does not follow that every act up to the moment that the harm is caused must be voluntary. Id. This concept is best demonstrated by an example: A who is subject to frequent fainting spells voluntarily drives a car; while driving he faints, loses control of the vehicle and injures a pedestrian; A would be criminally responsible. Id. Here, A‘s voluntary act consists of driving the car, and if the necessary mental state can be established as of the time he entered the car, it is enough to find A guilty of a crime. Id.
Take the offense of murder, for example. Murder under
One question remains-is a defendant entitled to a voluntary conduct instruction in the jury charge? As just explained, voluntary conduct is an implied element of every offense. It is well-settled that a defendant is not entitled to a defensive charge where the defendant‘s theory simply negates an element of the offense. Sanders v. State, 707 S.W.2d 78 (Tex.Crim.App.1986). Therefore, a defendant is not entitled to an affirmative submission applying the law of
On the other hand, a defendant is entitled to an instruction explaining legal requirements raised by the evidence. See Golden v. State, 851 S.W.2d 291, 295 (Tex.Crim.App.1993) (holding defendant entitled to instruction on the legal requirement of corroboration of accomplice witness testimony). I believe the evidence will raise the
With this new understanding of
IV.
Applying this analysis to the case at bar establishes that appellant was not entitled to his requested instruction on voluntary conduct. In appellant‘s brief to this Court, he contends that
In the present case, proof of the elements of the offense also establish the necessary voluntary conduct. Proof of the culpable mental state for the offense of murder, intentionally or knowingly, and the fact that the defendant voluntarily aimed a loaded gun at another human being, insured that the jury found appellant‘s conduct to be sufficiently voluntary. Therefore, no separate instruction on voluntariness is necessary.
Appellant, however, did request the inclusion of a voluntary conduct instruction in the jury charge.⁶ Under the facts of this case, appellant was not entitled to this instruction. The trial court properly denied his request.
V.
After a thorough analysis of Section 6.01, I believe the trial court properly denied appellant‘s request for an affirmative submission on voluntary conduct. I would reverse the court of appeals and affirm the trial court. Because the majority does not, I must dissent.
McCORMICK, P.J., and KELLER and MANSFIELD, JJ., join.