AFFIRMED; Opinion Filed July 21, 2016.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-15-01240-CR

                             JAMES CARL SCHMIDT, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 382nd Judicial District Court
                                  Rockwall County, Texas
                              Trial Court Cause No. 2-15-29

                             MEMORANDUM OPINION
                         Before Justices Lang-Miers, Evans, and Brown
                                   Opinion by Justice Evans
       James Carl Schmidt appeals his conviction for assault on a public servant. In his sole

issue, appellant complains the trial court erred in failing to instruct the jury on the defensive

issue of involuntary conduct. Based on the record before us, we conclude there was no evidence

to support the requested instruction. We therefore affirm the trial court’s judgment.

                                        BACKGROUND

        The incident from which appellant’s conviction arose occurred when police responded

to a welfare check after a 9-1-1 call reported appellant was standing in a parking lot, “acting kind

of strange.” Officers Andres Spivey and Jeff Freeman were among others that responded to the

call. Spivey testified that he approached appellant and engaged him in conversation to assess the

situation. Freeman watched appellant from behind. At one point, when Freeman observed
appellant breathing heavily, clenching his jaws, and clenching his fists, he unholstered his taser.

Both Spivey and Freeman testified that the situation was escalating when appellant stated “ . . . if

you guys bum rush me, it ain’t going to be pretty.” Spivey took that to mean that if they wanted

to take appellant into custody, he would not go willingly. Freeman noted he viewed appellant’s

statement as an indication that a physical confrontation was imminent.

       After Freeman unholstered his taser, appellant put his hands in the air, but then refused to

follow Freeman’s command either to put his hands behind his back or to get down on his knees.

When Freeman placed his hand on appellant’s arm to place him in hand restraints, appellant

reacted violently and started swinging his arms. Spivey testified that when Freeman went to grab

appellant’s arm, appellant pulled away, and then made a separate movement that struck Spivey.

Appellant hit Spivey on the side of Spivey’s head, on his left ear. Freeman and Spivey were

assisted by an off-duty officer who came to help the officers place appellant in custody after she

witnessed the officers struggling with appellant and observed appellant’s noncompliance. In

addition to the trial testimony, a video of the incident from Spivey’s body camera was admitted

into evidence. Spivey sustained a quarter-inch laceration behind his left ear and was treated for

his injury at the scene by a paramedic. Mitchell Dunn, a psychiatrist, testified that he examined

appellant in jail about five months after the incident and diagnosed him with methamphetamine

psychotic disorder, methamphetamine dependence, depressive disorder, alcohol dependence, and

antisocial personality disorder.

       Appellant was indicted for assault on a public servant. The matter proceeded to trial

before a jury. Appellant presented no witnesses on his behalf and did not testify at trial. During

the charge conference, the trial court denied appellant’s request that the charge include a jury

instruction on involuntary conduct. The jury found appellant guilty of assault on a public servant

and sentenced him to eight years in prison. This appeal followed.

                                                –2–
                                              ANALYSIS

        On appeal, appellant contends his conviction should be reversed because he suffered

some harm as a result of the trial court’s failure to submit to the jury his requested instruction on

involuntary conduct. When reviewing a jury-charge complaint, we must first determine whether

error exists in the charge. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If

error did not occur, our analysis ends. Id.

        Appellant’s complaint fails the first step of our analysis.       A trial court must give

requested instructions on every defensive issue raised by the evidence without regard to its

source or strength, even when the evidence is not credible or contradicted. Krajcovic v. State,

393 S.W.3d 282, 286 (Tex. Crim. App. 2013) (citing Shaw v. State, 243 S.W.3d 647, 657–58

(Tex. Crim. App. 2007)). Involuntary conduct is a defense to prosecution. See TEX. PENAL

CODE ANN. § 6.01(a) (West 2011) (person commits an offense only if he voluntarily engages in

conduct, including an act, omission or possession). When a defendant asserts the involuntary act

defense, he concedes his body made the motion, but denies criminal responsibility for the act.

See Rogers v. State, 105 S.W.3d 630, 639 n.30 (Tex. Crim. App. 2003). If the physical body

movement results from someone else’s act, some independent non-human force, by physical

reflex or convulsion, or the product of unconsciousness, hypnosis, or other nonvolitional

impetus, the movement is not voluntary. Id. at 638. A voluntariness instruction is required only

if the defendant admits he committed the charged act but contends he is not criminally

responsible for the conduct. See Bundage v. State, 470 S.W.3d 227, 232 (Tex. App.—Houston

[1st Dist.] 2015, no pet.).

        Our review of the record does not support appellant’s contention that the evidence

arguably raised the defensive issue of involuntary conduct. Here, appellant did not admit that he

struck Spivey as charged. Nevertheless, appellant asserts the evidence “is not inconsistent with

                                                –3–
the argument made by defense counsel that appellant did not intentionally hit the officer.”

Appellant maintains that evidence demonstrating Freeman approached him from behind to grab

his arm without warning raised the possibility that appellant’s action was a reflexive action and

not a voluntary act. Even assuming appellant reflexively pulled his arm away when Freeman

attempted to place him in hand restraints, Spivey testified that appellant’s movement in striking

him on the side of the head was a separate movement. There was no evidence that this separate

movement was reflexive or otherwise involuntary. Appellant also relies on the statement Spivey

made on the body camera video that he didn’t think appellant had any criminal intent. In making

his argument, appellant mistakenly conflates the mens rea element of the offense with the

defensive issue of an involuntary act, which is a separate issue. See Whatley v. State, 445

S.W.3d 159, 166 (Tex. Crim. App. 2014).

       Because there was no evidence raising an issue with respect to whether appellant’s action

in striking Spivey was anything other than voluntary, the trial court did not err in denying

appellant’s requested jury instruction on involuntary conduct. We resolve appellant’s sole issue

against him.

       We affirm the trial court’s judgment.




                                                     /David Evans/
                                                     DAVID EVANS
                                                     JUSTICE



Do Not Publish
TEX. R. APP. P. 47
151240F.U05




                                               –4–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

JAMES CARL SCHMIDT, Appellant                         On Appeal from the 382nd Judicial District
                                                      Court, Rockwall County, Texas
No. 05-15-01240-CR         V.                         Trial Court Cause No. 2-15-29
                                                      Opinion delivered by Justice Evans, Justices
THE STATE OF TEXAS, Appellee                          Lang-Miers and Brown participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 21st day of July, 2016.




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