REVERSE and REMAND; and Opinion Filed August 8, 2019.




                                                    In The
                                    Court of Appeals
                             Fifth District of Texas at Dallas
                                            No. 05-17-00823-CR

                           WILLIE MAURICE HERVEY, JR., Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                                On Appeal from the 89th District Court
                                       Wichita County, Texas
                                   Trial Court Cause No. 57,785-C

                                  MEMORANDUM OPINION
                               Before Justices Myers, Osborne, and Nowell
                                       Opinion by Justice Osborne
        Appellant, Willie Maurice Hervey Jr., was convicted of murder and sentenced to seventy

years’ imprisonment. In a single issue on appeal,1 appellant claims that the trial court erred by not

providing the jury with an adequate instruction on voluntariness-of-conduct. We agree with

appellant and reverse and remand.

                                                 Background

        On April 20, 2014, appellant shot and killed Mark Austin Hawkins during a “marijuana

deal gone bad.”




    1
      On June 20, 2017, this appeal was transferred from the Second District Court of Appeals in Fort Worth to this
Court under a docket equalization order from the Texas Supreme Court.
        In April of 2014, appellant was living with a friend, Crystal Brown. On April 20, 2014,

appellant woke early and went to the residence of another friend, De’Amber Koerth. As it was

“4/20,” a date characterized by appellant as “weed smoking day,” he and De’Amber smoked

marijuana. After their supply was exhausted, De’Amber called her friend, Hawkins, to buy more.

During De’Amber’s call to Hawkins, appellant arranged to buy one ounce of marijuana, i.e., 28

grams, for $250. Appellant and Hawkins exchanged telephone numbers but did not set a place to

meet.

        Appellant returned to Crystal’s house and “chilled” until Hawkins called to arrange a

meeting for their exchange at a Denny’s. Hawkins later called back to say that his car wasn’t

working and he could not get to the Denny’s; he asked appellant to meet him at his house instead.

        Appellant testified that when he left Crystal’s to meet with Hawkins he had with him $250

and a loaded ten-millimeter Glock gun.2 The gun, which appellant carried for his protection “most

of the time,” was between the console and the seat of the car he was driving.3

        When appellant got to Hawkins’ house he pulled into the driveway and Hawkins jumped

into the car. Hawkins asked appellant if he had the money and appellant, in turn, asked Hawkins

if he had “the weed.” Both men pulled out the money and the drugs. Appellant described Hawkins

as being “really fidgety.”

        Appellant weighed the marijuana with his scale and found it to weigh only 26 grams – two

grams short of the agreed amount.4 Appellant asked Hawkins if Hawkins had the other two grams,

and Hawkins said “no.” Appellant asked “so there’s no way you can get the other grams” and


    2
      On cross-examination appellant admitted he knew, because of his prior convictions, that it was a felony for him
to be in possession of this gun.
    3
      Appellant testified that he had never been taught how to use a gun; he’d never been to a gun range, attended a
gun safety class, or been a member of any organization where he could have learned the proper use and handling of a
firearm.
   4
     De’Amber Koerth testified that it was Hawkins’ habit to “short” his buyers and she did not tell appellant about
Hawkins’ practice.
                                                        –2–
Hawkins again said “no.” Appellant poured the marijuana back into the jar in which it had been

originally contained and told Hawkins “man, I don’t even want this shit . . . just go on and get up

out of my car.”

       Hawkins did not get out of the car but rather argued with appellant about the consummation

of the sale, saying “why did you come all the way over here for nothing? You might as well just

go on and get it . . . I’ll give the other grams to De’Amber.”

       Appellant then drew his gun “just to scare him (Hawkins) out the car,” and pushed Hawkins

by the neck and towards the door. Appellant testified that he told Hawkins “man, just get the fuck

out of my car, I don’t want this shit going on.” Hawkins then grabbed the gun.

       Appellant and Hawkins wrestled for the gun in the car. Appellant described the struggle as

follows:

               [W]e were both sitting down, you know, I’m in the driver’s seat, he’s in the
       passenger seat. And when he grabbed the gun and we started wrestling, I just can’t
       recall how, but we ended up on our knees, both of us are on our knees in the car.
       I’m on my knees in the driver’s seat. He’s on his knees in the passenger seat. And
       our back’s against the roof . . .

                                              *

              [W]e were both like shoulder to shoulder in the car. The gun was aimed
       towards the backseat, I believe, at this time. . .

                                              *

              [B]oth of our hands are on the gun, but . . . we’re moving real hard so his
       elbow or shoulder hit me in the nose. I don’t know which one hit me in the nose,
       but something hit me in the nose.

                                              *

              I’m telling him (Hawkins), you’re not fixing to get this gun from me, just
       go on and get out the car. And . . . coming towards the end of the wrestling, he had
       reached back to the back of the door, I mean, to the door handle, pushed the door
       open, he stepped his right foot out and as he’s coming out with his left foot, he
       jumps and, you know, at the same time, he pulls the gun and I pulled back and that’s
       when the gun goes off.

                                                  –3–
       Appellant testified he had his finger on the “trigger guard” the whole time that he and

Hawkins were wrestling to prevent the gun from going off so that no one would be shot. However,

when Hawkins tried to get out of the car, “[h]e (Hawkins) pulled and I’m pulling back just . . .

trying to keep it in my possession and I guess my finger slipped inside . . . the trigger guard. That’s

when the gun goes off.” Appellant testified that he did not intend to pull the trigger, but his finger

ended up on the trigger when he “snatched the gun back” from Hawkins who was trying to take

the gun from appellant. According to appellant Hawkins never had control of the gun, though he

had “ahold” of it when the gun discharged.

       Appellant testified that after the gun went off, Hawkins “hollered” and “took off running”

towards the porch of the house. As appellant leaned across the seat to close the door, he saw the

jar of marijuana rolling towards the crack of the door; appellant grabbed the jar and closed the

door. He looked back and saw Hawkins fall to the ground. Appellant then drove away.

       Appellant returned to Crystal’s residence. He testified that he was not sure if he had shot

Hawkins or not. He checked his gun, expecting to see a bullet come out of the head of the gun; a

shell came out instead. He checked his car for blood but did not see any blood on the passenger

side where Hawkins had been sitting.

       Appellant changed his clothes at Crystal’s residence. While changing he noticed a little

blood on his jeans which he thought probably came from him touching his nose, which was bloody

as a result of being hit by Hawkins, and then touching his jeans. He threw the gun inside a drawer.

Before he left Crystal’s home he told her “if the police ever come asking about my whereabouts,

where I’ve been, you know, tell them I’ve been with you all night.” He took the jar of marijuana

with him.




                                                 –4–
       Appellant then spent time getting something to eat and smoking more marijuana with

friends. Later that same day he was arrested at a friend’s apartment where he’d secreted the jar of

marijuana he took from the scene of the shooting in a pile of dirty clothes in that apartment.

        Appellant testified that he did not intentionally or knowingly shoot Hawkins, nor did he

intend to cause serious bodily injury to Hawkins. He had intended to pay Hawkins for the

marijuana and did not have the intent to rob Hawkins of the drugs.

                                            Indictment

       The indictment charged appellant with the offense of murder under two alternative

theories:

              [D]id then and there intentionally or knowingly cause the death of an
       individual, namely, Mark Austin Hawkins, by shooting the body and/or torso of the
       said Mark Austin Hawkins with a firearm.

                                             Or

              [D]id then and there, with intent to cause serious bodily injury to an
       individual, namely, Mark Austin Hawkins, commit an act clearly dangerous to
       human life that caused the death of said Mark Austin Hawkins, by shooting the said
       Mark Austin Hawkins on or about the body and/or torso.

See TEX. PENAL CODE ANN. § 19.02(b)(1), (2).

                         Appellant’s Allegations and State’s Response

       In a single issue, appellant claims that the trial court erred by not properly charging the jury

on voluntariness-of-conduct, i.e., whether his act of shooting Hawkins was voluntary, thereby

depriving him of his only defense and ensuring that he would be found guilty. Appellant further

claims he suffered “some harm” because the only issue before the jury was whether his act of

pulling the trigger was voluntary.

       The State responds that the jury charge already included adequate instructions on

voluntariness-of-conduct. The State further responds that, even if the trial court erred, that error

was not preserved because the arguments appellant advanced at trial in support of his requested
                                                  –5–
instructions differ from the arguments he makes on appeal. The State urges this Court to apply the

egregious harm standard for jury charge error.

                                                Jury Instructions

          The trial court sua sponte charged the jury on voluntariness-of-conduct as follows:

                                                    11.

                 An “Act” means a bodily movement, whether voluntary or involuntary, and
          includes speech.

                                                    *

                                                    16.

                  For the offense of murder, 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.

                                                    *

                 But if you do not so believe, or if you have a reasonable doubt thereof, or if
          you have a reasonable doubt that the shooting was not the voluntary act or conduct
          of the defendant, you will acquit the defendant and next consider whether the
          defendant is guilty of the offense of manslaughter.

          The jury charge also contained instructions on the lesser included offenses of manslaughter

and criminally negligent homicide. Neither of those instructions contained any instructions on

voluntariness-of-conduct, either in the abstract or application paragraphs.

                                   Appellant’s Objections to the Charge

          At the close of the evidence, and prior to the charge being read to the jury, a charge

conference was held on the record. During that conference, defense counsel made objections to

the jury charge and proposed two alternative charges, in writing,5 on the issue of voluntariness-of-

conduct:


   5
       The first proposed charge read as follows:

                                                          –6–
              [BY DEFENSE COUNSEL] Under Section 16, first paragraph, it talks
    about voluntariness. And under the current status of the law I’m going to provide
    the Court with . . . (has) . . . been marked as Defendant’s Exhibit 4 . . . This is an
    excerpt on Page 21 of the Texas Criminal Pattern Jury Charge, 2015 Edition, that
    talks about voluntariness and under the current state of the law of Simpkins v. State,
    . . . there should be an effort by the Court to fit the voluntariness instruction to the
    facts of the case.

            We have provided two filed instructions . . . we are requesting that the Court
    include one or both of them as to voluntariness . . . These are both instructions as
    to voluntariness, alternative instructions as to . . . voluntary acts and . . . requested
    under Simpkins to fit the voluntariness instruction as required by Simpkins to the
    facts of the case. And we are requesting that one or both of those instructions be
    included instead of the State’s brief discussion of voluntariness under Paragraph
    16.




             You are instructed that a person commits an offense only if he voluntarily engages in
    conduct, including an act, an omission, or possession. Conduct is not rendered involuntary merely
    because the person did not intend the results of his conduct. Therefore, if you believe from the
    evidence beyond a reasonable doubt that on the occasion in question the defendant, Willie Maurice
    Hervey Jr., did cause the death of Mark Austin Hawkins, by shooting him with a gun, as alleged in
    the indictment, but you further believe from the evidence, or have a reasonable doubt thereof, that
    the shooting was the result of an accidental discharge of the gun while Mark Austin Hawkins and
    the defendant were struggling or scuffling for possession of the gun and was not a voluntary act or
    conduct of the defendant, you will acquit the defendant and say by your verdict “Not Guilty.”

The second proposed charge read as follows:

             You have heard evidence that, when the defendant pulled the trigger, his act was not
    voluntary because his act in pulling the trigger was caused by Mark Austin Hawkins pulling on the
    gun.

             A person commits an offense only if the person voluntarily engages in an act constituting
    an offense. An act is a bodily movement.

             An act is voluntary if it is performed consciously as a result of effort or determination.

             An act is not voluntary if it is a non-volitional result of another person’s act or it is set in
    motion by some independent (sic) or it is set in motion by some independent force.

             The requirement that the act constituting the offense be voluntary is separate and distinct
    from the requirement that the defendant have acted with one or more culpable mental states. If you
    have a reasonable doubt as to the defendant’s conduct being voluntary you will say so by a verdict
    of “Not Guilty.”




                                                      –7–
The prosecutor responded as follows:

                [BY THE PROSECUTOR] Your Honor, actually, we do pretty much what
        they want, just not exactly in the order they want. We have the first two sentences
        of that contained Paragraph 16, then we have the two application perhaps where
        they could find the murder and then in the final one, where we talk about reasonable
        doubt, then we also apply it to the voluntary act or conduct of the Defendant – or if
        it was not the voluntary act or conduct of the Defendant, then to acquit the
        Defendant.

The trial court then asked if the language in the charge was “taken from the Pattern Jury Charge”

and if the prosecutor had “tracked it.” The prosecutor replied: “I do not use the Pattern Jury

Charge.”6

        The trial court asked the prosecutor if the statute had been tracked. The prosecutor replied:

“[W]hat we did is put what the law is and then . . . at the end of the application paragraph, we

include . . . [i]f you don’t believe that we’ve proved it beyond a reasonable doubt or if you don’t

believe that it’s a voluntary act, then you are to acquit.” The prosecutor noted that, “[o]therwise,

you’re going to wind up with multiple . . . paragraphs pretty much saying the same thing.”

        The trial court then asked defense counsel if he was “being repetitive” and if his proposed

charges would confuse the jury. Defense counsel responded that he was “simply requesting that

there be one simple paragraph that . . . hits a lot of the facts and talks about voluntary conduct.”

Defense counsel again noted that two separate alternative charges had been provided to the court.

        The trial court overruled defense counsel’s objection.

        Defense counsel continued his argument saying if “the State is going to split up

voluntariness, then it should be included under each section. It is all criminal conduct . . .” The

prosecutor responded “if defense counsel can show how any of the reckless or negligent acts that




    6
     We recognize that the current version of the Pattern Jury Charges for this defense makes no recommendation as
to how a specific instruction should be worded. Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury
Charges: Criminal Defenses PJC 21.6 (2018).

                                                       –8–
are alleged were not a voluntary act, we would consider doing so.” Defense counsel again

reiterated “the law requires a voluntary act” and we’re just asking that the Court include the law .

. . on each section.” The prosecutor responded as follows:

                [BY THE PROSECUTOR] Your Honor, he admitted that he pulled the gun
        willingly, that he put the gun up to his neck willingly, that he took his weed
        willingly, nobody made him hide the clothes, hide the gun, any of that stuff. The
        only thing he contested was the pulling of the trigger. And that’s not included as
        one of the reckless or neglect acts in Paragraphs 17 and 18. The . . . conduct that
        he engaged in that was reckless and neglect was voluntary according to his own
        testimony.

The trial court did not alter the wording of the jury charge.

                                                    Analysis

        The issue before this Court is a narrow one. The issue is not whether the evidence is

sufficient to support appellant’s conviction for an intentional and knowing murder; indeed,

appellant does not challenge the sufficiency of the evidence and the material facts surrounding the

shooting are not substantially disputed.7 Nor is the issue whether appellant was entitled to a charge

on voluntariness-of-conduct; the State did not argue at trial, and does not argue on appeal, that

appellant was not entitled to that charge and the charge given to the jury contained some

voluntariness-of-conduct instructions. Rather, the issue before this Court is whether the

instructions on voluntariness-of-conduct given by the trial court, sua sponte, were adequate to

guide the jury in their deliberations. We hold that the jury charge was not adequate.

The Charge Must Include Law Applicable to the Case

        The trial court must provide the jury with a written charge distinctly setting forth the law

applicable to the case. TEX. CODE CRIM. PROC. ANN. art. 36.14. The trial judge has a duty to

prepare a jury charge that accurately sets out the law applicable to the specific offense charged and


    7
       Appellant was convicted of an intentional or knowing murder by shooting Hawkins with a gun. Use of a deadly
weapon raises an inference of intent. Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012) (specific intent
to kill may be inferred from use of deadly weapon). A firearm is a deadly weapon per se. TEX. PENAL CODE ANN. §
1.07(a)(17)(A).
                                                       –9–
is ultimately responsible for the accuracy of the jury charge and accompanying instructions.

Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007).

        The jury must be instructed under what circumstances they should convict and under what

circumstances they should acquit. Mendez v. State, 545 S.W.3d 548, 553-54 (Tex. Crim. App.

2018). It is not sufficient for the jury to receive an abstract instruction on the law and then to render

a verdict according to a general conclusion on whether that law has been violated; the charge must

also apply the law to the facts adduced at trial. Mendez, 545 S.W.3d at 553-54; Gray v. State, 152

S.W.3d 125, 127-28 (Tex. Crim. App. 2004). Jury charges which fail to apply the law to the facts

adduced at trial are erroneous. Mendez, 545 S.W.3d at 555; Gray, 152 S.W.3d at 127-28.

Requirement of a Charge on a Defensive Issue

        A defendant is entitled to a jury instruction on a defensive issue if that issue is raised by

the evidence, regardless of the strength or credibility of that evidence. PENAL § 2.03(c); Farmer

v. State, 411 S.W.3d 901, 906 (Tex. Crim. App. 2013). When a trial court judge sua sponte instructs

on a defensive issue, the court must do so correctly. Mendez, 545 S.W.3d at 553.

        In Mendez v. State, the defendant was charged with murder and received jury instructions

on both murder and the lesser included offense of aggravated assault. Id. The trial court, sua sponte,

charged the jury in the abstract on the law of self-defense, but applied the law on self-defense only

in the application paragraph for murder and not in the application paragraph for aggravated assault.

Id. Mendez did not object to the charge, and was acquitted of murder but convicted of aggravated

assault. Id. at 550-51. The Court of Criminal Appeals concluded that the absence of an application

paragraph applying self-defense to aggravated assault was erroneous even though the defendant

did not object because it was (1) a complete failure to apply an abstract instruction on self-defense

to the facts of the case and (2) an incomplete application paragraph. Id. at 554. The Court held that

because the jury was properly instructed under what circumstances they should convict Mendez

                                                 –10–
of aggravated assault, the jury should also have been informed “under what circumstances they

should acquit” him of that offense. Id. at 555.

        In reaching its decision, the Court of Criminal Appeals relied on Vega v. State, 394 S.W.3d

514 (Tex. Crim. App. 2013) and Barrera v. State, 982 S.W.2d 415 (Tex. Crim. App. 1998).

        In Vega v. State, a prosecution for delivery of a controlled substance, error occurred when

the trial court provided the jury with an incomplete charge on the defensive issue of entrapment.

394 S.W.3d at 518-20. The defense had claimed entrapment both by a law enforcement officer,

Whitlock, and a confidential informant, Jerry. Id. at 516–17. The trial court’s charge included

abstract and definitional instructions on the defense of entrapment, but the application portion of

the charge allowed the jury to consider the inducement only by Whitlock but not by Jerry:

                Therefore, if you believe from the evidence beyond a reasonable doubt that
        the defendant committed the offense as alleged, but you further believe, or you have
        a reasonable doubt thereof, that he was induced to do so by Marshall Whitlock, a
        law enforcement officer, by persuasion or any other means likely to cause persons
        to do so, and that the conduct of Marshall Whitlock did not merely afford the
        defendant an opportunity to commit the offense, if any, you will find the defendant
        not guilty.

Id. at 518. The Court of Criminal Appeals held that, because the defense of entrapment was “law

applicable to the case,” these instructions should have included inducement by Jerry, Whitlock, or

both, because (1) the evidence showed that Jerry was an agent acting under the control of law-

enforcement officers and (2) the defendant testified that it was Jerry who suggested that he deliver

drugs to Whitlock. Id. at 520.8

        Similarly, in Barrera v. State, a prosecution for attempted murder and aggravated assault

resulting from the defendant’s act in shooting the complainant where the defendant claimed self-

defense, the trial court gave the jury an abstract instruction on self-defense, but did not include an



    8
     We note that the Court of Criminal Appeals ultimately found this error to be harmless under the egregious error
standard. Vega v. State, 394 S.W.3d 514, 522 (Tex. Crim. App. 2013).

                                                       –11–
application section instructing the jury to acquit if it had a reasonable doubt as to self-defense. 982

S.W.2d at 416. Even though Barrera did not object to this charge, the Court of Criminal Appeals

held that “the failure to apply the law of self-defense to the facts of the case” was error.9 Id.

        Here, the trial court, sua sponte, gave some instructions on voluntariness-of-conduct. That

defense became law applicable to the case. It was therefore incumbent on the trial court to properly

charge the jury on that defense.

Requirement of a Voluntary Act

        Before criminal responsibility may be imposed, a defendant’s conduct must include a

voluntary act. Farmer, 411 S.W.3d at 905-6; Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim.

App. 2003). The Penal Code provides that a person commits an offense only if “he voluntarily

engages in conduct, including an act, an omission, or possession.” PENAL § 6.01(a). An “act” is

defined as “a bodily movement, whether voluntary or involuntary.” Id. § 1.07(a)(1). The

voluntariness-of-conduct requirement applies to all offenses listed in the Penal Code, even those

that do not require a culpable mental state and are considered strict liability offenses. Farmer, 411

S.W.3d at 905 (recognizing the general application of PENAL § 6.01(a) to all offenses and applying

voluntariness-of-conduct to driving while intoxicated, a strict liability offense); see also Gonzales

v. State, 632 S.W.2d 899, 903 (Tex. App.—Dallas 1982, pet. ref’d) (noting that a conviction for

criminally negligent homicide requires proof that the defendant committed a voluntary act with

the requisite culpable mental state).

        The issue of voluntariness is separate and distinct from that of culpable mental state. Febus

v. State, 542 S.W.3d 568, 574 (Tex. Crim. App. 2018); Brown v. State, 955 S.W.2d 276, 280 (Tex.

Crim. App. 1997). A culpable mental state is an element of the offense which the State must prove



    9
     The case was remanded to the court of appeals for a harm analysis. Barrera v. State, 982 S.W.2d 415, 417 (Tex.
Crim. App. 1998).

                                                      –12–
beyond a reasonable doubt. Brown, 955 S.W.2d at 279. Voluntariness, on the other hand, is a

defensive issue which must be raised by the evidence. Id. When the evidence raises the issue of

voluntariness of a defendant’s conduct, the jury shall be charged, when requested, on that issue.

Id. at 280.

Sufficiency of a Charge on Voluntariness-of-Conduct

        The Penal Code provides little guidance as to exactly how a proper jury charge on

voluntariness-of-conduct should be structured or worded. As noted above, the Penal Code provides

only that a person commits an offense if “he voluntarily engages in conduct, including an act, an

omission, or possession.” PENAL § 6.01(a). While an “act” is defined as “a bodily movement,

whether voluntary or involuntary,” Id. § 1.07(a)(1), the words “voluntary” and “voluntariness” are

not defined in the Code.

        Case law recognizes that voluntariness-of-conduct refers to a defendant’s physical body

movements.” Farmer, 411 S.W.3d at 906; Rogers, 105 S.W.3d at 638; Febus, 542 S.W.3d at 574;

see also Alford v. State, 866 S.W.2d 619, 624 (Tex. Crim. App. 1993) (holding that the term

“voluntarily” as utilized in PENAL § 6.01(a) means the absence of an accidental act, omission or

possession). Involuntariness-of-conduct has also been afforded a specific meaning: if a defendant’s

physical movements are “the non-volitional 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 non-volitional impetus,” that movement is not voluntary. See

Farmer, 411 S.W.3d at 906; Rogers, 105 S.W.3d at 638; see also Febus, 542 S.W.3d at 574.

        Neither appellant nor the State have cited this Court to any case where the sufficiency of a

jury charge on voluntariness-of-conduct in the context of PENAL § 6.01(a) has been evaluated. This

Court’s research reveals that only a few Texas cases have addressed this or similar issues.




                                               –13–
        In Simpkins v. State, 590 S.W.2d 129, 134–35 (Tex. Crim. App. 1979), disapproved on

other grounds Lugo v. State, 667 S.W.2d 144 (Tex. Crim. App. 1984), the issue was whether the

trial court’s instructions gave a complete charge on the law of accident,10 which had been requested

by defendant Simpkins:

                You are instructed that a person commits an offense only if he voluntarily
        engages in conduct, including an act, an omission, or possession. Conduct is not
        rendered involuntary merely because the person did not intend the results of his
        conduct. Therefore, if you believe from the evidence beyond a reasonable doubt
        that on the occasion in question the defendant, David Michael Simpkins, did cause
        the death of JOHN MILTON by shooting him with a gun, as alleged in the
        indictment, but you further believe from the evidence, or have a reasonable doubt
        thereof, that the shooting was the result of an accidental discharge of the gun while
        Alvin Giddings and the defendant were struggling or scuffling for the possession of
        the gun and was not the voluntary act or conduct of the defendant, you will acquit
        the defendant and say by your verdict not guilty.

Id. (emphasis added). The Court of Criminal Appeals found that this instruction fairly and

adequately presented the issue of involuntariness-of-conduct (which had been raised by Simpkins’

testimony), that it did not misdirect the jury, was not a comment on the weight of the evidence,

and that it correctly stated the law found in the Penal Code. Id.

        The jury charge in Reyes v. State, 11-15-00264-CR, 2017 WL 4799141, at *5 (Tex. App.—

Eastland October 19, 2017, pet. ref’d) (mem. op. not designated for publication) is also instructive

even though the issue in that case was a challenge to the sufficiency of the evidence rather than

lack of a proper instruction on voluntariness-of-conduct:

               You are further instructed that a person commits an offense only if he
        voluntarily engages in conduct. Conduct is not rendered involuntary merely
        because the person did not intend the result of his conduct. Thus, if you believe
        from the evidence beyond a reasonable doubt that on the occasion in question the
        defendant, Juan Reyes, did cause the death of Wood Lynn Wood, II by shooting
        him with a gun, as alleged in the indictment, but you further believe from the

        10
            The current version of the Penal Code does not provide for a defense of accident. Rogers v. State, 105
S.W.3d 630, 637-38 (Tex. Crim. App. 2003); George v. State, 681 S.W.2d 43, 45 (Tex. Crim. App. 1984). An
instruction on “voluntariness” now serves the same function as the former instruction on “accident.” George, 681
S.W.2d at 45. The Court of Criminal Appeals has expressly recommended that members of the bench and bar avoid
using the term “accidental.” Williams v. State, 630 S.W.2d 640, 644 (Tex. Crim. App. 1982).

                                                      –14–
       evidence, or you have a reasonable doubt thereof, that the shooting was a result of
       an accidental discharge of the gun as a result of being struck by the said Wood
       Lynn Wood, II and was not the voluntary act or conduct of the defendant, you will
       acquit the defendant and say by your verdict “Not Guilty.”

Id., at *1 n. 1 (emphasis added). The Eastland Court of Appeals recognized that, while accident is

no longer a defense in Texas, this charge, read as a whole, constituted an instruction on

voluntariness-of-conduct. Id. at * 1.

       In Molinar v. State, 910 S.W.2d 572, 583–84 (Tex. App.—El Paso 1995, no pet.), a murder

prosecution, the defendant requested the following instruction on voluntariness-of-conduct:

               Now bearing in mind the foregoing instructions, if you believe from the
       evidence beyond a reasonable doubt that on or about the 26TH DAY OF
       FEBRUARY, 1994, in the County of Midland and State of Texas the defendant did
       then and there cause the death of the said ALFREDO LUJAN, as alleged in the
       indictment, but you further believe from the evidence, or you have a reasonable
       doubt thereof, that the conduct of the defendant that caused death to ALFREDO
       LUJAN was not the voluntary conduct of the defendant but the conduct of
       ALFREDO LUJAN falling against a knife in the hand of the defendant, you will
       acquit the defendant of the offenses of MURDER, INVOLUNTARY
       MANSLAUGHTER AND CRIMINAL NEGLIGENT HOMICIDE and say by you
       [sic] verdict “not guilty” to the [sic] those offenses.

The trial court refused to give this instruction but provided the jury with the following instruction

on voluntary conduct:

              Now bearing in mind the foregoing instructions, if you believe from the
       evidence beyond a reasonable doubt that on or about the 26TH DAY OF
       FEBRUARY, 1994, in the County of Midland and State of Texas the defendant did
       then and there cause the death of the said ALFREDO LUJAN, as alleged in the
       indictment, but you further believe from the evidence, or you have a reasonable
       doubt thereof, that the conduct of the defendant that caused death to ALFREDO
       LUJAN was not the voluntary conduct of the defendant, you will acquit the
       defendant of the offense of MURDER and proceed to consider whether the
       defendant is guilty of the lesser included offense of INVOLUNTARY
       MANSLAUGHTER.

Id. (emphasis added). The El Paso Court found that the defendant’s requested instruction assumed

the truth of certain evidence; i.e., testimony that Lujan could have fallen upon the knife, and would

have constituted an impermissible comment on the weight of the evidence had the trial court given

                                               –15–
that charge. Id. That Court, relying on Simpkins, further found that the charge given by the court

correctly stated and applied the law concerning voluntary conduct. Id. There was no indication in

the opinion what voluntariness-of-conduct instructions, if any, were given in the abstract portion

of the charge.

The Charge on Voluntariness-of-Conduct was not Adequate

       Even though our existing statutes and case law do not provide an abundance of guidance,

the law is sufficiently clear for us to conclude that, because voluntariness-of-conduct was raised

as an issue, the trial court had a duty to provide the jury with a charge adequate to guide the jury’s

deliberations as to the circumstances under which that jury could either convict or acquit appellant.

We find that the jury charge given in this case was not adequate.

                                     The Charge is Incomplete

       First, the charge is incomplete. The jury was not instructed that it could acquit appellant if

the jurors found that the shooting was caused by the independent act of Hawkins pulling on the

gun and thereby causing appellant’s finger to pull the trigger.

       In contrast, the jury charges in both Simpkins and Reyes set out for the jury the nature of

an involuntary act which, based on the facts of the case, the jury would need to find in order to

acquit the defendant. In Simpkins, the charge allowed the jury to acquit the defendant if the jury

found that “the shooting was the result of an accidental discharge of the gun while . . . (the

complainant) . . . and the defendant were struggling or scuffling for the possession of the gun and

was not the voluntary act or conduct of the defendant.” Simpkins, 590 S.W.2d at 135. In Reyes,

the charge allowed the jury to acquit the defendant if the jury found that “the shooting was a result

of an accidental discharge of the gun as a result of being struck by the said . . . (the complainant) .

. . and was not the voluntary act or conduct of the defendant.” Reyes, 2017 WL 4799141, at *1 n.

1. These instructions were found sufficient to charge on voluntariness-of-conduct.

                                                –16–
                          The Charge Limited Voluntariness-of-Conduct to Murder

           Second, the trial court intentionally limited the defense of voluntariness-of-conduct to

murder:

                   For the offense of murder, 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.

                                                        *

                  But if you do not so believe, or if you have a reasonable doubt thereof, or if
           you have a reasonable doubt that the shooting was not the voluntary act or
           conduct of the defendant, you will acquit the defendant (of murder) and next
           consider whether the defendant is guilty of the offense of manslaughter.

Voluntariness-of-conduct was specifically limited to the offense of murder despite the charge also

permitting the jury to convict appellant of manslaughter or criminally negligent homicide.11 From



11
     These charges read as follows:
                                                            17.

                    Now, bearing in mind the foregoing instructions, if you find from the evidence, beyond a
           reasonable doubt that on or about the 20th day of April, 2014, in Wichita County, Texas, the
           defendant Willie Maurice Hervey did then and there recklessly cause the death of an individual,
           namely Mark Austin Hawkins, by bringing a loaded firearm to a drug deal, and/or brandishing a
           loaded firearm during a drug deal, and/or putting a loaded firearm to the neck of the said Mark
           Austin Hawkins, and/or engaging in a struggle with the said Mark Austin Hawkins while holding
           and/or displaying a loaded firearm, then you will find the defendant guilty of Manslaughter as
           included in the indictment.

                    But if you do not so believe, or if you have a reasonable doubt thereof, then you will acquit
           the defendant and next consider whether or not the defendant is guilty of Criminally Negligent
           Homicide.

                                                            18.

                    Now bearing in mind the foregoing instructions, if you find from the evidence, beyond a
           reasonable doubt that on or about the 20th day of April 2014, in Wichita County, Texas, the
           defendant Willie Maurice Hervey did then and there cause the death of an individual, namely Mark
           Austin Hawkins, by criminal negligence by bringing a loaded firearm to a drug deal, and/or
           brandishing a loaded firearm during a drug deal, and/or putting a loaded firearm to the neck of The
           said Mark Austin Hawkins, and/or engaging in a struggle with the said Mark Austin Hawkins while
           holding and/or displaying a loaded firearm, then you will find the defendant guilty of Criminally
           Negligent Homicide as included in the indictment. But if you do not so believe, or you have a
           reasonable doubt thereof, you will acquit the defendant and say by your verdict “Not Guilty.”


                                                            –17–
a plain reading of this charge, the jury could have believed that voluntariness-of-conduct was not

applicable to those offenses.

         Mendez is instructive. There, the defendant was charged with murder and received jury

instructions on both murder and the lesser included offense of aggravated assault. 545 S.W.3d at

550. The trial court, sua sponte, charged the jury in the abstract on the law of self-defense, but

applied the law on self-defense only in the application paragraph for murder and not in the

application paragraph for aggravated assault. Id. at 550-51. Mendez was acquitted of murder but

convicted of aggravated assault. Id. at 550. The Court of Criminal Appeals concluded that the

absence of an application paragraph applying self-defense to aggravated assault was erroneous

because it was (1) a complete failure to apply an abstract instruction on self-defense to the facts of

the case and (2) an incomplete application paragraph. Id. at 554. The Court held that, because the

jury was properly instructed under what circumstances they should convict Mendez of aggravated

assault, the jury should also have been informed “under what circumstances they should acquit”

him of that offense. Id. at 555.

         While the jury charge in this case instructed generally on the definition of an “act” in the

abstract portion of the charge, the instructions on voluntariness-of-conduct were specifically

limited to the offense of murder, and even then the charge was incomplete. There was no

instruction applying the law of voluntariness-of-conduct to the lesser included offenses of

manslaughter and criminally negligent homicide. Consequently, the jury was informed of the

circumstances under which they could convict appellant of those offenses but not the

circumstances under which appellant could be acquitted of those offenses.




     We note that neither of these charges included an instruction requiring the jury to find that appellant voluntarily
shot Hawkins before it could convict him of either lesser homicides.

                                                        –18–
         As noted above, the provisions of PENAL § 6.01(a) are applicable to all offenses. Farmer,

411 S.W.3d at 905. By limiting the jury’s consideration of voluntariness-of-conduct to murder, the

jury charge was impermissibly narrow and misleading.

                    The Charge did not distinguish Voluntariness-of-Conduct from
                                      a Culpable Mental State

         Third, the charge failed to make any distinction between a culpable mental state and

voluntariness-of-conduct. Nowhere in the charge was it explained to the jury that a finding of

voluntariness-of-conduct is separate and distinct from a finding of a culpable mental state.12 Case

law is clear that the requirement of a voluntary act under PENAL § 6.01(a) is not subsumed by the

mens rea requirement of an offense and is an issue separate from the defendant’s mental state. See

Brown, 955 S.W.2d at 280; Adanandus v. State, 866 S.W.2d 210, 230 (Tex. Crim. App. 1993). Yet

this charge in no way differentiated between a finding of a culpable mental state and a finding of

voluntariness-of-conduct.13

Conclusion

         Because voluntariness-of-conduct was raised by the evidence, the trial court had a duty to

provide the jury with proper instructions on that defense. The trial court failed to apply the law

applicable to the case to the facts adduced at trial. The trial court’s jury charge was erroneous.

                                      Appellant Suffered Some Harm

         Having found error in the trial court’s charge, we must now analyze whether appellant

suffered harm as a result of that error. Almanza v. State, 686 S.W.2d 157, 173–74 (Tex. Crim. App.

1985); see also Vega, 394 S.W.3d at 519-20 (holding that when the trial judge provides the jury



    12
       The charge fully defined the culpable mental states of intentionally, knowingly, recklessly and criminal
negligence. PENAL § 6.03.
    13
       We note that appellant’s second requested charge included the following language: “The requirement that the
act constituting the offense be voluntary is separate and distinct from the requirement that the defendant have acted
with one of more culpable mental states.”
                                                       –19–
with an instruction on the defensive issue, but fails to do so correctly, the resulting charge is subject

to review for a harm analysis).

         Because the claimed error in this case was properly preserved by appellant’s timely request

for additional instructions and by the objections and arguments defense counsel made on the

record,14 we must reverse if we find the error was “calculated to injure the rights of the defendant,”

i.e., if there is “some harm” caused to the appellant.15 Almanza, 686 S.W.2d at 171; see also Price

v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); Barrios v. State, 283 S.W.3d 348, 350

(Tex. Crim. App. 2009). There must be “actual, rather than merely theoretical, harm from the

error.” Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). In conducting this analysis,

we consider the entire record including (1) the jury charge as a whole; (2) the state of the evidence,

including the contested issues and weight of probative evidence; (3) the argument of counsel; and

(4) any other information revealed by the record as a whole. Sanchez v. State, 376 S.W.3d 767,

774-75 (Tex. Crim. App. 2012); Almanza, 686 S.W.2d at 171.

The Entire Jury Charge

         The jury charge, when considered as a whole, weighs in favor of concluding that appellant

suffered some harm. As detailed above, there are multiple deficiencies in the jury charge which

resulted in the jury not being provided with proper guidance as to how to apply the law of

voluntariness-of-conduct to the facts adduced at trial. There is nothing in the charge, either in the

abstract portions or in the application paragraphs, which serves to ameliorate these deficiencies.




    14
        We find no merit in the State’s argument that appellant failed to properly preserve this error. Appellant
requested two specific jury instructions in writing. See TEX. CODE CRIM. PROC. ANN art. 36.15. He argued at length
at the charge conference in favor of these instructions and made it clear that he was requesting a charge that explained
voluntary conduct and applied voluntariness-of-conduct to the facts of the case. The trial court could not, in any way,
have failed to understand that appellant’s request was for a proper jury instruction on voluntariness-of-conduct.
    15
       If no proper objection had been made at trial, a reversal would be required only if the error caused “egregious
harm.” Vega, 394 S.W.3d at 519.
                                                        –20–
The State of the Evidence

         Appellant admitted that he shot Hawkins, but claimed that his action in pulling the trigger

was involuntary as a result of Hawkins pulling on the gun and trying to take it away from him.

Absent a proper charge on voluntariness-of-conduct, the jury had no option but to convict appellant

of some degree of homicide. This factor weighs in favor of appellant.

The Arguments of Counsel

         Neither the prosecutor nor defense counsel specifically argued whether appellant’s act in

shooting Hawkins was voluntary or involuntary. Defense counsel focused his argument on

appellant’s lack of intent to shoot Hawkins and that the shooting was accidental. 16 The State,

without ever using the word “voluntary,” argued that appellant actions were consistent with an

intentional shooting and a “cold blooded execution” as opposed to an accidental shooting. The

prosecutor also argued that appellant’s testimony was nothing but a “preposterous” and

“ridiculous” story and that there was never a struggle over the gun. Because neither party argued

voluntariness-of-conduct, this factor does not weigh in favor of either appellant or the State.

Other Information Revealed by the Record

         There were no witnesses to the shooting. Hence, in order to judge the voluntariness of

appellant’s conduct, the jury had to weigh and judge appellant’s credibility. The State presented

evidence that appellant told incorrect and inconsistent versions of the events surrounding the

shooting to the police in multiple interviews and argued that appellant was still lying at trial. The

State also presented evidence and argued to the jury that appellant’s actions after the shooting –

fleeing the scene, hiding the gun, the marijuana, and his clothes – were indicative of his guilt and

his intent to shoot Hawkins. A proper charge on voluntariness-of-conduct was essential if the jury



    16
       Defense counsel specifically referred to voluntariness-of-conduct during his voir dire of the jury panel: “Crimes
require a voluntary act. I’m not going to focus on that too much, but a person commits an offense only if he voluntarily
engages in some sort of conduct, including an act, an omission or possession.”
                                                        –21–
in this case was to be guided as to how to apply that law to appellant’s sole defense. Lacking that

guidance, the jury not only found appellant guilty of murder, but subsequently assessed a hefty

sentence of seventy years’ imprisonment. This factor weighs in favor of appellant.

        After reviewing the entire record, we conclude that appellant suffered some actual, as

opposed to theoretical, harm as a result of the trial court’s error. Accordingly, we sustain

appellant’s sole issue.

                                             Conclusion

        Having sustained appellant’s sole issue, we reverse the trial court’s judgment and remand

to the trial court for a new trial consistent with this opinion.




                                                     /Leslie Osborne/
                                                     LESLIE OSBORNE
                                                     JUSTICE

DO NOT PUBLISH
TEX. R. APP. P. 47.2(b)

170823F.U05




                                                 –22–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 WILLIE MAURICE HERVEY, JR.,                       On Appeal from the 89th District Court,
 Appellant                                         Wichita County, Texas
                                                   Trial Court Cause No. 57,785-C.
 No. 05-17-00823-CR        V.                      Opinion delivered by Justice Osborne.
                                                   Justices Myers and Nowell participating.
 THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANDED for further proceedings consistent with this opinion.


Judgment entered this 8th day of August, 2019.




                                            –23–
