               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                         NO. PD-0712-18



                          MAURICE LAMAR PIPER, Appellant

                                                 v.

                                   THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FIFTH COURT OF APPEALS
                            DALLAS COUNTY

                K ELLER, P.J., filed a concurring opinion in which S LAUGHTER, J., joined.

       The Penal Code says that a person commits an offense “only if he voluntarily engages in

conduct[.]”1 In Brown we treated this “voluntary act” requirement as a defensive issue.2 We also

said it has nothing to do with mens rea.3 I think this was wrong. But even if Brown is correct, it is

distinguishable from this case, which involves purposely pointing a loaded firearm at an unarmed,




       1
           TEX . PENAL CODE § 6.01(a).
       2
           Brown v. State, 955 S.W.2d 276, 279-280 (Tex. Crim. App. 1997).
       3
           Id. at 280.
                                                                    PIPER CONCURRENCE — 2

unthreatening individual and shooting him with it.

                                        A. Flawed Jurisprudence

       Judge Price dissented to Brown’s treatment of the voluntary-act requirement as a defensive

issue.4 He pointed out that the requirement appears in Chapter 6 of the Penal Code and Chapter 6

does not include any statutory defenses to a crime.5 As he notes, defenses are located in Penal Code

Chapters 8 and 9, and if the legislature had intended that the voluntary-act requirement be classified

as a defense, it could have placed it in one of those chapters.6 I agree that the requirement is not

properly characterized as a defensive issue.

       The Court also held in Brown that the “issue of the voluntariness of one’s conduct . . . is

separate from the issue of one’s mental state.”7 Judge Price disagreed, saying that voluntary conduct

is “an implied element of every offense,” proof of which (in most cases) is achieved by proving the

other elements of an offense.8 By introducing evidence that a defendant acted knowingly or

intentionally, for instance, the State will also establish that he acted voluntarily. As to whether a

voluntariness instruction is required, Judge Price said that it is well-settled that a defendant is not

entitled to a defensive charge when his theory simply negates an element of the offense.9


       4
           See Brown, 955 S.W.2d at 281-85 (Price, J., dissenting).
       5
           See id. at 283; TEX . PENAL CODE §§ 6.01-6.04.
       6
          See Brown, supra; TEX . PENAL CODE §§ 8.01-8.08, 9.01-9.63. Technically, Judge Price’s
dissent referred to Chapter 9 as involving “justifications,” see Brown, supra, but the Penal Code
explicitly defines a ground of justification as a defense. TEX . PENAL CODE § 9.02.
       7
           Brown, supra at 280 (Court’s op).
       8
           Id. at 285 (Price, J., dissenting).
       9
           Id.
                                                                    PIPER CONCURRENCE — 3

Consequently, he concluded that a defendant is not ordinarily entitled to an instruction on the implied

element of voluntary conduct.10

        Judge Price pointed out that, on rare occasions, proving the elements of an offense will not

be enough to establish voluntary conduct.11 This is most likely to arise in a strict-liability offense,

e.g. in a driving-while-intoxicated prosecution where the defendant claims that a third person slipped

an intoxicating substance into his drink.12 I agree with Judge Price that, instead of being an

independent defense, the voluntary-act requirement is a statutory “failsafe” for the rare occasion in

which the statutory elements do not suffice to establish voluntary conduct.13

       The Court points out that we must judge an attorney’s performance according to the law as

it existed at the time of trial. While it is true that an attorney’s performance must be judged by the

law at the time of trial, prejudice is another matter. Under Lockhart v. Fretwell, if a case that would

have afforded a defendant relief is overruled after trial, such that he would not have been entitled

to relief if it had been in effect at the time of trial, then the defendant suffers no prejudice for

purposes of an ineffective assistance of counsel claim.14 If Brown were overruled, then, pursuant to

Fretwell, Applicant would suffer no prejudice from counsel’s failure to request an involuntary

conduct instruction.

                                   B. Distinguishable Situation


       10
            Id.
       11
            Id.
       12
            See Farmer v. State, 411 S.W.3d 901, 907 n.9 (Tex. Crim. App. 2013).
       13
            See Brown, 955 S.W.2d at 284 (Price, J., dissenting).
       14
            506 U.S. 364, 366 (1993).
                                                                   PIPER CONCURRENCE — 4

         But even if we continue to adhere to Brown, the present case is distinguishable. Brown did

not involve a defendant pointing a loaded firearm at someone and shooting him.15 Purposely

pointing a loaded gun at someone is a voluntary act from which a factfinder can infer a reckless

culpable mental state. Our legislature has taken this common-sense concept a step further, albeit

under a different statute. Under the deadly-conduct statute, recklessness is presumed if the actor

knowingly points a firearm at or even in the direction of another, even if he believes the gun is not

loaded.16 I agree with the Oklahoma Court of Criminal Appeals that “[s]imply by pointing a loaded

weapon at unarmed persons,” an actor “demonstrate[s] a conscious disregard for the safety of

another.”17 Given that a firearm is a deadly weapon per se,18 this risk necessarily includes a risk of

death.

         Voluntariness under § 6.01 “refers only to one’s own physical body movements” and “a

movement is considered involuntary only if that movement is the nonvolitional result of someone

else’s act, was set in motion by some independent non-human force, was caused by a physical reflex

or convulsion, or was the product of unconsciousness, hypnosis or other nonvolitional impetus.”19


         15
              See Brown, 955 S.W.2d at 277 & n.2 (Court’s op.).
         16
              See TEX . PENAL CODE § 22.05(c).
         17
          Culpepper v. State, 507 P.2d 561, 563 (Okla. Crim. 1973). See also Marlin v. State, 993
A.2d 1141, 1160 (Md. App. 2010) (“‘[E]ven brandishing a loaded and cocked weapon in the
direction of another person’ could constitute the crime of reckless endangerment.”); People v.
Hoover, 620 N.E. 2d 1152, 1161-62 (Ill. App. 1st Dist. 1993) (“[P]ointing a loaded gun at another
constitutes recklessness because it is a gross deviation from the standard of care which a reasonable
person would exercise.”) (noting previous rejection of contention that “the firing of the weapon was
accidental because she did not fire it voluntarily”).
         18
              TEX . PENAL CODE § 1.07(a)(17)(A).
         19
              Farmer, 411 S.W.3d at 906 (brackets and internal quotation marks omitted).
                                                                     PIPER CONCURRENCE — 5

Even then, the voluntary act requirement “does not necessarily go to the ultimate act (e.g., pulling

the trigger),” as long as the defendant’s conduct “include[s] an act that is voluntary (e.g., pulling the

gun, pointing the gun, or cocking the hammer).”20 Although Appellant offered evidence that his

pistol fired because someone bumped into him, there was no dispute that Appellant, of his own

volition, pointed the loaded weapon at the victim. That conduct sufficed to establish a voluntary act.

        In Brown, we held that the voluntary-conduct issue was raised when the defendant testified

that his handgun accidentally fired when someone bumped him from behind while he was raising

the weapon.21 The person who was shot was an associate of the defendant’s and was not one of the

persons he was at odds with.22 Brown is distinguishable from the present case because Brown had

not yet pointed his handgun at anyone—he was in the act of raising it—and he was not pointing, or

even attempting to point, the handgun at the person who was shot. By contrast, the undisputed

evidence in this case shows that Appellant pointed his firearm at the person whom he ultimately shot.

In pointing the firearm at that person, Appellant committed a voluntary act that posed a substantial

risk of causing death to that person.

       Under Penal Code § 6.04, a defendant can still be criminally responsible for causing a result

when something outside of his control helps to cause that result. The test is whether “the result would

not have occurred but for his conduct, operating either alone or concurrently with another cause,

unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor




        20
             Id. (quoting Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim. App. 2003).
        21
             955 S.W.2d at 277, 279-80.
        22
             Id. at 277 and n.2.
                                                                      PIPER CONCURRENCE — 6

clearly insufficient.”23 We have explained that this means that an outside cause will excuse the

defendant from criminal liability only when the outside cause was by itself enough to cause the result

and the defendant’s conduct was not by itself enough.24 The trial evidence failed to show that the

outside cause was by itself enough to cause the result. If Appellant had not pointed the gun, being

bumped into by a third person would not have resulted in the victim’s death. Under the concurrent

causation statute, then, Appellant is liable for manslaughter on the basis of his reckless act of pointing

the gun.

        The evidence here raised the issue of manslaughter because, even if Appellant’s act of

shooting was a nonvolitional result of being bumped by a third person, his pointing a firearm at the

unarmed and nonthreatening victim was a reckless act, and that reckless act contributed to causing

the shooting of the victim. And since it is undisputed that he purposely pointed the firearm at the

victim, so that that act was volitional, the evidence did not raise the issue of his conduct being

involuntary.

        With respect, I concur in the Court’s judgment.

Filed: September 11, 2019

Do Not Publish




           23
           TEX . PENAL CODE § 6.04(a); see also Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim.
 App. 1986) (defendant still criminally liable when “the defendant’s conduct and the other cause
 together” are sufficient to cause the prohibited result) (emphasis in original).
           24
            Robbins, supra (“If the additional cause, other than the defendant’s conduct, is clearly
 sufficient, by itself, to produce the result and the defendant’s conduct, by itself, is clearly
 insufficient, then the defendant cannot be convicted.”) (emphasis in original).
