                                        NO. 07-02-0021-CR

                                     IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                           AT AMARILLO

                                             PANEL C

                                         JANUARY 29, 2003

                               ______________________________


                             CEDRIC JEROME HENRY, APPELLANT

                                                V.

                               THE STATE OF TEXAS, APPELLEE


                             _________________________________

           FROM THE CRIMINAL DISTRICT COURT OF JEFFERSON COUNTY;

                  NO. 82275; HONORABLE CHARLES D. CARVER, JUDGE

                              _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.


                                      MEMORANDUM OPINION 1


      Upon a plea of not guilty, appellant Cedric Jerome Henry was convicted by a jury of

murder and punishment was assessed at life imprisonment and a $10,000 fine. By a single




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          T EX. R. A PP . P. 47.1.
point of error, he claims the trial court erred in failing to properly charge the jury on the law

of accident. Based upon the rationale expressed herein, we affirm .


       Appellant was a passenger in a borrowed vehicle in Beaumont, Texas when he shot

the victim after a confrontation about money. The vehicle was found abandoned a short

time later with a bullet hole in the window through which the victim had been shot. An

empty cigar pack with appellant’s fingerprints was recovered from the vehicle. Appellant

was positively identified as the shooter by a witness to the incident. In addition, he was

identified as the shooter by his co-defendant, the driver of the vehicle. The State called two

other witnesses who testified appellant made admissions to them about the shooting.

W hen he took the stand in his own defense, he explained he had been in the car earlier in

the day, but denied being at the scene, possessing a gun, or ever shooting anyone.


       By his single point of error, appellant asserts the trial court erred in failing to properly

charge the jury on the law of accident because one witness testified appellant told her after

the murder that “the car jerked and the gun went off.” He argues this presented the court

with some evidence of accident and, therefore, he was entitled to a jury charge on the law

of accident. W e disagree. Our review of a charge error claim is governed on appeal by

the two step approach announced in Almanza v. State, 686 S.W .2d 157 (Tex.Cr.App.1985)

(op'n on reh'g). First, an appellate court must determ ine whether error exists in the jury

charge. Hutch v. State, 922 S.W .2d 166, 170 (Tex.Cr.App. 1996) (en banc). Second, the

appellate court must determine whether sufficient harm was caused by the error to require



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reversal. Id. at 170-71 (citing Arline v. State, 721 S.W .2d 348, 351 (Tex.Cr.App. 1986).

Unpreserved error requires egregious harm to warrant reversal, whereas for preserved

error, any harm will suffice. Id. W hen conducting a harm analysis the reviewing court m ay

consider the following four factors: 1) the charge itself; 2) the state of the evidence including

contested issues and the weight of the probative evidence; 3) arguments of counsel; and

4) any other relevant information revealed by the record of the trial as a whole. Id.


       Appellant requested the jury be charged on the law of accident, which was denied

by the trial court. W ithout citing or referencing any authority, appellant contends that the

trial court erred in declining to submit an instruction that


              Our law provides no act done by accident is an offense. Therefore, if
       you believe that the defendant committed the act alleged but you further
       believe that such act was caused by accident, or if you have a reasonable
       doubt thereof, you shall find the defendant not guilty.


The current penal code does not recognize the defense of accident. However, the former

defense is now within the requirement of section 6.01(a), that "a person comm its an offense

only if he voluntarily engages in conduct, including an act, an om ission, or possession."

T EX. P EN . C ODE A NN. § 6.01 (Vernon 1994); W illiams v. State, 630 S.W .2d 640, 644

(Tex.Cr.App.1982). Because there is no defense of accident in the present penal code, the

trial court did not err in declining to submit the instruction.


       Moreover, appellant argues that because one witness testified he told her after the

murder that “the car jerked and the gun went off” that such evidence raised the issue of


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voluntariness, and he was therefore entitled to the requested instruction.          However,

although Brown v. State, 955 S.W .2d 276, 279 (Tex.Cr.App. 1997), held that defendant

was entitled to an instruction regarding an involuntary act, unlike appellant’s testimony here,

the defendant testified at trial that the handgun in his possession accidentally discharged

after he was bumped from behind and his testimony was corroborated by another witness.

Also, in Butler v. State, 981 S.W .2d 849, 856 (Tex.App.--Houston, [1 st Dist.] 1998, pet.

ref’d), the court held that the trial court should have submitted an instruction on the

voluntariness of appellant’s conduct; however, there too, the defendant testified that the

shotgun fired during a struggle for possession of the shotgun. Further, conduct is not

rendered involuntary merely because an accused does not intend the result of his conduct.

George v. State, 681 S.W .2d 43, 45 (Tex.Cr.App. 1984). These cases do not authorize an

instruction as to voluntariness where, as here, appellant testified that he was not in the car

at the time of the shooting and never possessed a pistol which was contrary to the

testimony of his co-defendant. See also Joiner v. State, 727 S.W .2d 534, 537 (Tex.Cr.App.

1987) (holding that testim ony that the defendant stated "it was an accident" after he shot

the victim did not raise the issue of the voluntariness of his conduct.) Appellant’s sole point

of error is overruled.


       Accordingly, the judgm ent of the trial court is affirmed.




                                           Don H. Reavis
                                             Justice

Do not publish.

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