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Criminal Law No. 1412-01, 5/21/2003. Click here for the full text of this decision FACTS: A jury convicted Bobby Ray Rogers of murdering his estranged wife and sentenced him to life in prison. On appeal, the court of appeals reversed appellant’s conviction and remanded his case for a new trial. The court granted the state’s petition for discretionary review to determine:1. whether the court of appeals correctly held that appellant’s trial request for an “accident instruction” was equivalent to a request for a jury instruction on “voluntary conduct”; and if so, 2. whether the court of appeals was then correct to apply the Almanza“some harm” standard of review. HOLDING: Reversed and remanded. In Williams v. State, 630 S.W.2d 640 (Tex. Crim. App. 1982), this court expressly recommended that practitioners not use the term “accident:” “There is no law and 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.” The court’s present Texas Penal Code �6.01(a) was modeled after the corresponding Model Penal Code provision and its commentary distinguishes “voluntary” conduct from “accidental or unintended” results. Voluntary conduct “focuses upon conduct that is within the control of the actor. There is sufficient difference between ordinary, human activity and a reflex or a convulsion to make it desirable that they be distinguished for purposes of criminal responsibility by a term like `voluntary.’” Model Penal Code �2.01, comment at 215. Thus, before criminal responsibility may be imposed, the actor’s conduct must “include either a voluntary act or an omission when the defendant was capable of action.” The operative word under �6.01(a), for present purposes, is “include.” The Model Penal Code comments and the Practice Commentary to the 1974 Texas Penal Code stress that the “voluntary act” requirement does not necessarily go to the ultimate act (e.g., pulling the trigger), but only that criminal responsibility for the harm must “include an act” that is voluntary (e.g., pulling the gun, pointing the gun, or cocking the hammer). “Voluntariness,” within the meaning of �6.01(a), refers only to one’s own physical body movements. If those physical movements are the nonvolitional result of someone else’s act, are set in motion by some independent nonhuman force, are caused by a physical reflex or convulsion, or are the product of unconsciousness, hypnosis or other nonvolitional impetus, that movement is not voluntary. The word “accident,” however, is a word of many meanings which covers a wide spectrum of possibilities. It generally means “a happening that is not expected, foreseen, or intended.” Webster’s New World Dictionary 8 (2d college ed. 1996). Its synonyms include “chance, mishap, mischance, and misfortune.” Roget’s II: The New Thesaurus 11 (3d ed. 1995). It includes, but certainly is not limited to, unintended bodily movements. But at least since this court’s decision in Williams, the word “accident” has not been used to refer to an “involuntary act” under �6.01(a). Thus, for purposes of �6.01(a), an “accident” is not the same as, and should not be treated as the equivalent of, the absence of any voluntary act. The court of appeals apparently accepted, at face value, the appellant’s contention that a claim of “accident” and a claim of no voluntary conduct are the same. The court again rejects this view and holds that the word “voluntary” does not refer to the same defensive theory as the word “accident” and that therefore, the court of appeals erred when it implicitly equated the two. The court agrees with the state’s second contention, that even if the appellant subjectively intended to ask for an instruction on voluntary conduct, the mere request for an instruction on “accident,” without more, was not sufficient to alert the trial judge that he wanted an instruction on voluntary conduct. In the context of all the evidence at trial, the court finds that the appellant’s request was fatally ambiguous. A defendant’s testimony alone may be sufficient to raise a defensive theory, but appellant’s testimony did not unambiguously develop the theory that he was the passive instrument of another’s act, i.e., that, somehow, his finger had been made to exert the requisite amount of force to squeeze the trigger and fire the gun. Given the fatal ambiguity of appellant’s request for an “accident” instruction and absent any attempt by counsel to clarify the issue for the trial judge, the court cannot find that the trial judge erred in denying the appellant’s request. Because the court finds that appellant did not request any jury charge instruction on “voluntary conduct” under �6.01, the court of appeals erred in applying the Almanza“some harm” standard of review. OPINION: Cochran, J., delivered the opinion of the court.

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