                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-08-00253-CR

PEDRO PETE HERNANDEZ,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                          From the 54th District Court
                           McLennan County, Texas
                          Trial Court No. 2006-273-C2


                         MEMORANDUM OPINION


      A jury convicted Pedro Pete Hernandez of murder and assessed his punishment

at life imprisonment and a $10,000 fine. Hernandez contends in his sole issue that the

court erred by denying his requested jury instruction on “voluntary conduct,

involuntary conduct and accidental gun discharge.” We will affirm.

      Hernandez was charged with the murder of his paramour Lori Zarate. On the

occasion in question, Hernandez drove her to a local hospital and ran inside the
emergency room saying that she had been shot and needed help. She died about thirty

minutes later.

       Hernandez testified that the shooting occurred when Zarate parked her car at a

store. As she parked the car, she told him she saw a man in the parking lot whom she

feared because she had “told on” him for illegally crossing the border. Hernandez was

in the front passenger seat and reached between the driver’s and passenger’s seats for

his semiautomatic handgun because he “thought that she was in danger.” According to

Hernandez:

       I was looking to see where he was and I was grabbing the gun. As I
       grabbed the gun, I’m looking to see who he was because there’s a bunch
       of people in the parking lot. That’s when she says, don’t point it this way,
       and I feel—do you know what I’m saying—pushing on the gun and it
       goes off.

       The court denied Hernandez’s request for the following jury instruction:

              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 the person did not
       intend the results of his conduct. Thus, if you believe from the evidence
       beyond a reasonable doubt that on the occasion in question, the
       Defendant, Pedro Pete Hernandez, did cause the death of Lori Zarate, by
       shooting her with a firearm, as alleged in the indictment, but you further
       believe from the evidence or you have a reasonable doubt thereof that the
       shooting was a result of an accidental discharge of the firearm and was
       not the voluntary act or conduct of the Defendant, you will acquit the
       Defendant and say by your verdict not guilty.

       Section 6.01 of the Penal Code provides in pertinent part, “A person commits an

offense only if he voluntarily engages in conduct, including an act, an omission, or

possession.” TEX. PEN. CODE ANN. § 6.01(a) (Vernon 2003). In Rogers v. State, 105




Hernandez v. State                                                                    Page 2
S.W.3d 630 (Tex. Crim. App. 2003), the Court of Criminal Appeals addressed what this

requirement means.

       “[T]he ‘voluntary act’ requirement does not necessarily go to the ultimate act

(e.g., pulling the trigger).” Id. at 638. Instead, “criminal responsibility for the harm

must ‘include an act’ that is voluntary (e.g., pulling the gun, pointing the gun, or

cocking the hammer).” Id.

              “Voluntariness,” within the meaning of Section 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 non-human 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.

Id.

       A defendant is “entitled to an instruction on every defensive issue raised by the

evidence, ‘whether that evidence is weak or strong, unimpeached or uncontradicted,

and regardless of what the trial court may or may not think about the credibility of the

defense.’” Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008) (quoting Hamel v.

State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996)).

       According to our research, in most cases in which an appellant claimed that the

firing of a weapon was not a voluntary act on his part, if the evidence showed that the

appellant voluntarily wielded the gun, then the appellate court rejected the claim that a

voluntariness instruction should have been given. See Holmes v. State, No. 01-06-00975-

CR, 2008 Tex. App. LEXIS 2562, at *17-18 (Tex. App.—Houston [1st Dist.] Apr. 10, 2008,

pet. ref’d) (not designated for publication); Trujillo v. State, 227 S.W.3d 164, 169-70 (Tex.



Hernandez v. State                                                                     Page 3
App.—Houston [1st Dist.] 2006, no pet.); Mims v. State, No. 12-02-00178-CR, 2004 Tex.

App. LEXIS 4019, at *21-23 (Tex. App.—Tyler Apr. 30, 2004, pet. ref’d) (not designated

for publication); see also Cavazos v. State, No. 05-05-1352-CR, 2006 Tex. App. LEXIS 9332,

at *20-22 (Tex. App.—Dallas Oct. 27, 2006, pet. ref’d) (not designated for publication)

(evidence legally and factually sufficient to prove appellant voluntarily engaged in

conduct that caused victim’s death). Cf. Payne v. State, 33 S.W.3d 374, 376 (Tex. App.—

Houston [1st Dist.] 2000, pet. ref’d) (appellant entitled to voluntariness instruction

where he held gun to victim’s neck, they struggled, and the gun discharged when the

victim slapped at the appellant’s hand).1

        Hernandez would be entitled to a voluntariness instruction only where there was

some evidence that his acts were “the nonvolitional result of someone else’s act, [were]

set in motion by some independent non-human force, [were] caused by a physical reflex

or convulsion, or [were] the product of unconsciousness, hypnosis or other

nonvolitional impetus.”         See Rogers, 105 S.W.3d at 638.             In Payne, the appellant’s

testimony provided some evidence that the victim’s conduct caused the weapon to fire.

See Payne v. State, 985 S.W.2d 682, 682-83 (Tex. App.—Houston [1st Dist.] 1999), rev’d on

other grounds, 11 S.W.3d 231 (Tex. Crim. App. 2000).

        Here, Hernandez offered no such evidence. He testified that Zarate told him not

to point the gun at her and he felt some nonspecific “pushing on the gun.”                             He

voluntarily “pulled the gun.” See Rogers, 105 S.W.3d at 638. Thus, the defensive issue of


1
        The facts in Payne are provided in more detail in the First Court’s opinion on original submission.
See Payne v. State, 985 S.W.2d 682, 682-83 (Tex. App.—Houston [1st Dist.] 1999), rev’d on other grounds, 11
S.W.3d 231 (Tex. Crim. App. 2000).


Hernandez v. State                                                                                  Page 4
voluntariness was not raised by the evidence, and the court did not err by denying his

requested instruction. See Holmes, 2008 Tex. App. LEXIS 2562, at *17-18; Trujillo, 227

S.W.3d at 169-70; Mims, 2004 Tex. App. LEXIS 4019, at *21-23.

       We overrule Hernandez’s sole issue and affirm the judgment.



                                                       FELIPE REYNA
                                                       Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurring with note)*
Affirmed
Opinion delivered and filed August 5, 2009
Do not publish
[CRPM]


*       (Chief Justice Gray concurs only in the judgment to the extent that it affirms the
trial court’s judgment. A separate opinion will not issue. He notes, however, that the
trial court erred in not giving the defensive instruction on voluntary/involuntary act;
the evidence though extraordinarily weak and only from the defendant’s testimony
supports the defense. And the Court of Criminal Appeals has made it clear that the
instruction must be given when any evidence supports it. It cannot be the law, as
argued by the State and the Court, that any voluntary act related to the offense negates
the defense. Otherwise the voluntary act of gun ownership would eliminate the
defense. This cannot be and is not the law. The voluntary act must be related
specifically to the offense as charged. Only because the evidence of guilt of murder,
including the intent to cause the victim’s death, was so overwhelming, can I conclude
beyond a reasonable doubt that the charge error was harmless.)




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