Opinion filed January 20, 2017




                                         In The


          Eleventh Court of Appeals
                                      __________

                                 No. 11-14-00251-CR
                                     __________

                    JAMES ROBERT SMITH, Appellant
                                            V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 132nd District Court
                             Scurry County, Texas
                          Trial Court Cause No. 9972


                      MEMORANDUM OPINION
      The grand jury indicted James Robert Smith for the murder of his daughter,
Mattie Jana-Nicole Smith, and he pleaded not guilty. After a trial, the jury convicted
him of that offense.1 The jury then assessed punishment at confinement for ninety-
nine years and a fine of $10,000, and the trial court sentenced him accordingly. On


      1
       TEX. PENAL CODE ANN. § 19.02 (West 2011).
appeal, Appellant asserts that the trial court should have submitted a voluntariness-
of-conduct instruction to the jury. We affirm.
                                 I. Evidence at Trial
      Jeannie Marie Smith (now Jeannie Marie Collins) and Appellant were
married, and they lived together. Jeannie and Appellant had marital problems. One
evening, they got into an argument about Appellant “pass[ing] gas” in the kitchen
while Jeannie was cooking. During the argument, Appellant threw a vase at Jeannie
and hit her with it. In response, Jeannie swung a broom at him. Jeannie went to the
bedroom, and Appellant followed her; she returned to the kitchen, and so did
Appellant.
      Meanwhile, their adult daughter, Mattie, came into the kitchen. Appellant,
Jeannie, and Mattie got into an argument, and Appellant returned to the bedroom.
While Appellant was in the bedroom, he said, “I told you you son of b-----s that I
was going to f--k y’all up the next time that y’all -- that y’all mess with me.” Jeannie
said that Appellant “sounded like he was going to do something.” She went into the
bedroom to try to keep Appellant from getting his revolver out of a nightstand
drawer, but Appellant beat her to the drawer.
      Appellant pointed the pistol at Jeannie, and she slapped at his hands;
Appellant claimed that she had a knife when he shot her. Immediately thereafter,
Mattie came into the bedroom. When Mattie went to help Jeannie, Appellant shot
Mattie in the chest. The single bullet perforated Mattie’s lungs, the right atrium of
her heart, and her spleen; she died from those wounds. Appellant fired five shots:
four bullets struck Jeannie, and the other bullet struck Mattie.
      James Barrows, an officer with the Snyder Police Department, arrived on
scene and found two women in a bedroom; both women had been shot. The older
victim told Officer Barrows, “He shot us.” Officer Barrows spoke to Appellant, who
admitted that he had been drinking, and Officer Barrows observed that Appellant
                                           2
smelled of alcohol and appeared to be intoxicated. Appellant also repeatedly said,
“What did I do? What have I done? What have I done?” Appellant also said, “The
gun’s in the den.” Officer Barrows heard Appellant at the scene admit that he shot
Mattie. Appellant was then arrested at the scene, read his Article 38.222 rights and
Miranda3 rights, and then transported to the Scurry County Law Enforcement
Center. A forensic evidence and property technician who was at the scene also heard
Appellant say, “They shouldn’t have woke me up. I shot them because they
shouldn’t have woke me up.”
        Appellant testified at trial that the revolver was in his hand as he struggled
with Jeannie and that the gun accidentally went off and shot her. He said that, as
Mattie entered the room, Jeannie and he fought and struggled over the gun. He said
that, as Mattie came toward Jeannie and bent over her, he pulled the gun toward
himself, that “it went off” accidentally, and that he “knew [Mattie] was shot.” He
requested a voluntariness-of-conduct instruction, which the trial court refused to
give.
        The State called Joseph Mata, a forensic scientist with the Texas Department
of Public Safety at the Lubbock Crime Laboratory, who is a specialist in firearms
and tool mark identification. He examined the revolver and the bullet fragments.
Mata testified that the revolver could fire in single or double action and that, in the
“trigger” test, the single action required five pounds of pressure, while the double
action required thirteen and one-half pounds of pressure. He also testified that he
performed three additional tests on the revolver—the “push off,” “jar off,” and
“rebounding hammer” tests—and that the revolver functioned normally.




        2
         TEX. CODE CRIM. PROC. ANN. art. 38.22 (West Supp. 2016).
        3
         Miranda v. Arizona, 384 U.S. 436 (1966).

                                                    3
                               II. Standard of Review
      Appellant asserts that the trial court erred when it failed to include an
instruction to the jury on voluntariness of conduct because the evidence raised the
issue. As to harm, Appellant maintains that he requested the instruction and need
show only “some harm.” When a defensive theory is raised by evidence adduced
from any source, the trial court must submit that issue to the jury. See Reynolds v.
State, 371 S.W.3d 511, 521 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (citing
Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997) (holding that a
defendant’s testimony alone may be sufficient to raise a defensive theory requiring
a jury charge)). However, “no error occurs in denying a charge on involuntary
conduct where the evidence does not raise involuntariness but merely reiterates the
defendant’s position that he did not intend the resulting injuries.” Pimentel v. State,
710 S.W.2d 764, 773 (Tex. App.—San Antonio 1986, pet. ref’d) (citing Williams v.
State, 630 S.W.2d 640, 644 (Tex. Crim. App. 1982); George v. State, 681 S.W.2d
43, 47 (Tex. Crim. App. 1984).
                                     III. Analysis
      Appellant alleged that, because the gun discharged due to an act by someone
other than himself or was a result of impetus from another person, the trial court
should have instructed the jury on voluntariness of conduct. We disagree with
Appellant’s argument for two reasons: (1) Appellant’s argument merely negates an
element of the offense and (2) Appellant acted voluntarily when he shot Mattie.
Therefore, as we explain below, the trial court did not err when it refused to provide
the voluntariness-of-conduct instruction. However, even if the trial court erred,
which we do not hold, Appellant suffered no harm.




                                          4
      A. Appellant claims that Mattie was “accidentally” shot, but his
         argument only seeks to negate an element of the offense of murder.

      Appellant testified that Mattie “walked in that room while me and her momma
was fighting, struggling over the gun.” Appellant said, “[T]he whole time [Jeannie]
was trying to get this gun from me, and I was having to change it from one hand to
another. And we was wrestling, and I’m not - - I’m right handed.” As we have said,
Appellant claimed that the gun went off and that it was an accident. The State argues
that Appellant has confused accident issues with voluntariness-of-conduct issues;
the two terms are not interchangeable. See Rogers v. State, 105 S.W.3d 630, 636
(Tex. Crim. App. 2003). In Rogers, the court explained that “‘accident’ was also
used under the former penal code to describe a hodgepodge of defenses, including
the absence of a culpable mental state, conduct which was voluntary but that differed
from the intended conduct, mistake of fact, and an unexpected result.” Id. at 637
(quoting Williams, 630 S.W.2d at 644). Also under the former code, “‘intentional’
could refer to either the conscious physical commission of the bad act (the actus
reus) or the mental state (the mens rea) with which the defendant committed that
act.” Id.
      Appellant sought have an instruction included that read in part:
      Therefore, if you believe from the evidence beyond a reasonable doubt
      that . . . the Defendant, James Robert Smith, did cause the death of
      Mattie Jana Nicole Smith, . . . but . . . you have a reasonable doubt
      thereof that the injury was a result of an accident, . . . you will . . . acquit
      the Defendant and say by your verdict not guilty.

Under the present code, there is no defense of “accident” because Section 6.01(a) of
the Texas Penal Code provides that “[a] person commits an offense only if he
voluntarily engages in conduct.” TEX. PENAL CODE ANN. § 6.01(a) (West 2011).
Section 6.02(a), in turn, addresses the claim that the defendant lacked the required
mental state. Id. § 6.02(a); Rogers, 105 S.W.3d at 637. Under Section 6.01(a), a

                                             5
movement is involuntary if the movement is a non-volitional result of someone
else’s act, is set in motion by an independent nonhuman force, or is the result of a
reflex or convulsion. Rogers, 105 S.W.3d at 638.
      Because Appellant sought to prove that he did not have the culpable mental
state because the shooting was an “accident,” no instruction was needed; Appellant
merely attempted to negate an element of the offense. See Penry v. State, 903
S.W.2d 715, 748 n.30 (Tex. Crim. App. 1995). In addition, the inclusion of the word
“accident” in the requested instruction was erroneous because accident is no longer
a defense under the present code.

      B. Appellant testified that, as he pulled the gun toward him and away
         from Jeannie, which was a volitional act by him, the gun discharged.
      Appellant argues that the evidence required a voluntariness-of-conduct
instruction because there was evidence that his actions were involuntary and that the
gun discharged because of Jeannie’s actions. The Texas Penal Code requires that an
act must be voluntary in order to establish guilt.          See PENAL § 6.01(a).
“‘Voluntariness,’ within the meaning of Section 6.01(a), refers only to one’s own
physical body movements.” Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim.
App. 2014) (quoting Rogers, 105 S.W.3d at 638). Voluntariness and the mental state
behind one’s conduct are separate issues. Id. (citing Adanandus v. State, 866 S.W.2d
210, 230 (Tex. Crim. App. 1993)).         “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.” Whatley, 445 S.W.3d at 166 (quoting Rogers, 105 S.W.3d at 638).
      Appellant sought to have the following instruction included in the jury charge:
      You are instructed that a person commits an offense only if he
      voluntarily engages in conduct. . . . Therefore, if you believe from the

                                         6
      evidence beyond a reasonable doubt that . . . the Defendant, James
      Robert Smith, did cause the death of Mattie Jana Nicole Smith, . . . but
      you have a reasonable doubt thereof that the injury . . . was not the
      voluntary act of conduct of the Defendant, you will . . . acquit the
      Defendant and say by your verdict not guilty.

Conduct is not rendered involuntary merely because an accused does not intend the
result of his conduct. See Adanandus, 866 S.W.2d at 230. If the accused engages
in a voluntary act and has the requisite mental state, his conduct is not rendered
involuntary simply because the conduct also included an involuntary act or because
the accused did not intend the result of his conduct. See Cruz v. State, 838 S.W.2d
682, 686 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d); Owens v. State, 786
S.W.2d 805, 809 (Tex. App.—Fort Worth 1990, pet. ref’d). Furthermore, the
“voluntary act” requirement does not necessarily go to the ultimate act (e.g., pulling
the trigger), but means only that criminal responsibility for the harm must include
an act that is voluntary (e.g., pointing the gun). Mims v. State, No. 12-02-00178-
CR, 2004 WL 949453, at *7 (Tex. App.—Tyler Apr. 30, 2004, pet. ref’d) (mem. op.,
not designated for publication) (citing Rogers, 105 S.W.3d at 638).
      In Mims, the defendant asserted that he did not intend to shoot the victim
because, during the robbery, they struggled over the gun and it went off.
Nevertheless, the court held this did not entitle the defendant to a voluntariness
instruction because the defendant created the situation when he voluntarily entered
the van with the gun, demanded money from the victim, and pointed the gun at the
victim. Mims, 2004 WL 949453, at *8. In a similar case, Owens, the defendant was
not entitled to a voluntariness instruction because he loaded a gun, held it out in front
of himself, and pointed it toward the deceased. The court held that this was not
involuntary conduct. Owens, 786 S.W.2d at 810. Likewise, similar conduct was
involved in Pimentel, which involved a man loading a shotgun and then jogging
down the street with his finger on the trigger. 710 S.W.2d at 773. The court held
                                           7
that this was not involuntary conduct even though the defendant claimed the gun just
went off. Id.
      In a case before the Court of Criminal Appeals, it held that, where the
defendant’s thumb slipped off the hammer, that constituted bodily movement within
the meaning of “act” found in Section 1.07(a)(1) of the Penal Code; there was no
evidence that the defendant’s action was involuntary. George, 681 S.W.2d at 47.
Here, Appellant argued with Jeannie, retrieved his loaded gun, and cocked the
hammer. Appellant said that he and Jeannie struggled and that, as he pulled the gun
toward himself, the gun discharged. Like volitional acts in Mims, Owens, and
Pimentel, as well as the slight bodily movement of the slipping thumb in George,
Appellant’s actions were volitional.
      Appellant argues that the evidence, as in Brown, entitled him to a
voluntariness-of-conduct instruction. See Brown, 955 S.W.2d at 279. In Brown, the
evidence supported a voluntariness-of-conduct instruction where the defendant
testified that he was bumped by a man named Ryan Coleman and that the gun
inadvertently discharged. Id. Coleman corroborated the defendant’s testimony. Id.
However, because Appellant pulled the gun toward himself and tried to keep control
of it as it discharged, his acts are unlike those in Brown. Likewise, Appellant’s case
is not like Garcia v. State, where the court held that an instruction was warranted
when the victim grabbed the gun from the defendant and caused the gun to discharge.
605 S.W.2d 565, 566 (Tex. Crim. App. [Panel Op.] 1980). Here, Appellant testified
that, as he pulled the gun, the gun discharged; he did not testify that Jeannie pulled
the gun away from him and then the gun discharged. Appellant’s case is not like
Brown and Garcia, and is more akin to George, Mims, Owens, and Pimentel.




                                          8
      C. Even if the trial court erred when it did not include the requested
         voluntariness-of-conduct instruction, a review of the entire record
         reveals that Appellant suffered no harm.
      When an appellate court undertakes an Almanza harm analysis for jury charge
error, the first question is did the defendant preserve error. If he did, then the court
will reverse if the error caused some harm to the accused’s rights. Ngo v. State, 175
S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Almanza v. State, 686 S.W.2d 157,
171 (Tex. Crim. App. 1985)). Conversely, if a defendant failed to object to the jury
charge error, then the court will reverse if the defendant suffered “egregious harm.”
Ngo, 175 S.W.3d at 743 (citing Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App.
2004); Almanza, 686 S.W.2d at 171)). Neither the State nor the defendant bears the
burden of proving harm; the court must review the entire record to determine if the
defendant suffered harm. See Elizondo v. State, 487 S.W.3d 185, 205 (Tex. Crim.
App. 2016); Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).
      The harm must be “actual,” not just theoretical. Almanza, 686 S.W.2d at 174.
To decide if some harm occurred, we review the following: (1) the jury charge as a
whole, (2) the arguments of counsel, (3) the entirety of the evidence, and (4) other
relevant factors present in the record. Reeves, 420 S.W.3d at 816 (citing Wooten v.
State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013)). “This less-stringent standard
still requires the reviewing court to find that the defendant ‘suffered some actual,
rather than merely theoretical, harm from the error.’” Reeves, 420 S.W.3d at 816
(quoting Warner v. State, 245 S.W.3d 458, 462 (Tex. Crim. App. 2008)). We will
address factors three and two, followed by one and four.




                                           9
             1. Factor Three: The entirety of the evidence is overwhelming
                against Appellant.
       The third factor for a harm analysis is the entirety of the evidence contained
in the record. Reeves, 420 S.W.3d at 816. Overwhelming evidence of guilt is a
factor to review in a thorough analysis of harm. Motilla v. State, 78 S.W.3d 352,
358 (Tex. Crim. App. 2002). Officer Barrows arrived at the scene and found two
women who had been shot. The older victim told Officer Barrows, “He shot us.”
Jeannie was the older victim, and she testified as to how Appellant and she argued;
how he threw a vase at her; how he went to the bedroom and got his gun; and how
she heard him cock it. She then said that Appellant stated, “I told you you son of
b-----s that I was going to f--k y’all up the next time that y’all -- that y’all mess with
me.”
       When she went into the bedroom, Appellant pointed the gun at her. She
slapped his hands away, and he then shot her four times. Mattie then entered the
bedroom, and went to help Jeannie, and Appellant shot Mattie once. The bullet
perforated her lungs, her heart, and her spleen, and Mattie died from those wounds.
       Officer Barrows observed that Appellant smelled of alcohol and appeared to
be intoxicated. Officer Barrows spoke to Appellant, who admitted that he had been
drinking, and Appellant also repeatedly said, “What did I do? What have I done?
What have I done?” Officer Barrows also noticed that Appellant had no defensive
wounds on his body.
       Appellant told the police on the night of the shooting, “The gun’s in the den.”
But the gun in the den, the Glock, was not used in the shooting. The revolver that
was used was found in a blue tote in the bedroom; there was blood on both the
revolver and the tote. Mata, a specialist in firearms and tool mark identification,
testified that the revolver could fire in single or double action and that, under the
“trigger” test, the single action required five pounds of pressure, while the double

                                           10
action required thirteen and one-half pounds of pressure. He also testified that he
performed three additional tests on the revolver—the “push off,” “jar off,” and
“rebounding hammer” tests—and that the revolver functioned normally. In addition,
Texas Ranger Phillip Vandygriff mapped the crime scene and explained that Jeannie
was on the floor and was shot through the mouth. He described how parts of her
teeth were in the carpet below her.
             2. Factor Two: The arguments of counsel do not indicate harm.
      Defense counsel made closing arguments in Appellant’s defense. Counsel
argued that the case did not involve an issue about who was “holding the gun.”
Counsel also argued that this was an accident, that there was reasonable doubt that
Appellant’s conduct was “intended” or “intentional,” and that only two witnesses
saw what happened: Jeannie and Appellant. Counsel acknowledged that Jeannie
said Appellant shot Mattie on purpose. Defense counsel argued that this case was
either a “straight up accident” or that Appellant shot Mattie intending to do serious
bodily injury. Counsel argued that Appellant did not intend to act in a way clearly
dangerous to human life. Counsel stated that Appellant’s testimony at trial differed
“in many respects” from what he told police officers the night that he shot Mattie.
Counsel pointed out that, although Appellant had blood on his socks, others in the
bedroom had blood on them as well: Jeannie and her son, Jermaine. Counsel
surmised that Mattie was shot at close range—it was a contact wound. In closing,
defense counsel noted that Appellant lost his daughter and would have to live with
that fact the rest of his life. The balance of the defense’s arguments were related to
intent and accident, not involuntary acts of others.
      In response, the State argued that this is a murder case and that Appellant took
his revolver, shot his wife four times, and then shot and killed his daughter. The
State explained that Jeannie told the jury what happened that day: she and Appellant
argued, and he got his gun. When she entered the bedroom, he pointed the gun at

                                          11
her, and after she slapped at his hands, he shot her four times. Appellant then shot
Mattie after she entered the bedroom and tried to help her mother. The prosecutor
continued by describing what Officer Barrows saw when he arrived: “I find Jeannie
Smith’s face shot off and her teeth right down there in the carpet in a huge pool of
blood, and Mattie is unresponsive,” “laying partially on top of Jeannie.” The State
encouraged the jury to look at the photos in evidence, which reflected not one injury
on Appellant. The State argued that Appellant lied to the officers about where the
gun was located and about which gun was used.
      The State pointed out that there were no bullet holes where Appellant claimed
to have pointed and shot the gun. The State also highlighted Appellant’s comments
after the shooting: “The whole house is [Jeannie’s]. We just fight about money. And
nothing I do is good enough.” The State pointed to Appellant’s anger as a motive.
The State argued that Appellant was an angry man and that his anger killed his
daughter and maimed his wife. The State argued that Appellant intentionally shot
Jeannie multiple times and Mattie once because of his anger and his condition at the
time of the shooting.
             3. Factor One: The jury charge as a whole does not indicate
                harm in light of the other factors.
      The trial court prepared a jury charge with several definitions. The trial court
instructed the jury that “[a] person commits the offense of murder if the person, with
intent to cause serious bodily injury to an individual, commits an act clearly
dangerous to human life that causes the death of the individual.” The court outlined
that “‘[s]erious bodily injury’ means bodily injury that creates a substantial risk of
death, serious permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” The court explained that “‘[d]eadly
weapon’ means anything that in the manner of its use or intended use is capable of
causing death or serious bodily injury.” The court also provided that “[a] person

                                         12
acts intentionally, or with intent, with respect to the nature of his conduct or to a
result of his conduct when it is his conscious objective or desire to engage in the
conduct or cause the result.” Finally, the court instructed the jury as follows:
             Now, if you find from the evidence beyond a reasonable doubt
      that on or about October 26, 2012, in Scurry County, Texas, the
      defendant, JAMES ROBERT SMITH, did then and there, with intent
      to cause serious bodily injury to an individual, namely, Mattie Jana-
      Nicole Smith, commit an act clearly dangerous to human life that
      caused the death of Mattie Jana-Nicole Smith, by shooting her with a
      deadly weapon, to-wit: a handgun, then you will find the defendant
      guilty of Murder, as charged in the indictment.

      As previously explained, Appellant was not entitled to an instruction that
included the word “accident.”      He also was not entitled to an instruction on
voluntariness of conduct because of his volitional movements in pulling the gun
toward himself as it discharged. However, even if those facts allowed for a
voluntariness-of-conduct instruction, Appellant never presented an instruction only
on voluntariness of conduct; his request included “accident.” In addition, even if the
voluntariness-of-conduct instruction had been in the charge, the result in this case
would have been the same.
             4. Factor Four: No other relevant factors in the record indicate
                Appellant suffered harm.
      A review of voir dire indicated that the State focused on eliciting answers
from the panel about their thoughts, attitudes, and biases, including whether they
were biased against the State because of federal or state government action, the
imposition of taxes, unfair treatment by police, or the unfair prosecution of
individuals. The State focused on whether someone had decided that, just because
the grand jury indicted Appellant and the State prosecuted him, he must be guilty,
regardless of the evidence presented. The State also questioned the panel on whether



                                          13
religious beliefs would preclude them from jury service because they could not “pass
judgment on someone else.”
      The State explained during voir dire that Appellant was not required to testify
against himself, that he was presumed innocent, and that his decision not to testify
could not be held against him. The State also discussed with the panel members the
meaning of intentionally, serious bodily injury, the use of a deadly weapon,
transferred intent, and self-defense. The State emphasized how jurors should use
their common sense to evaluate evidence and measure the standard of proof for the
elements of the offense of murder. The State elicited responses from panel members
on what evidence could be presented and how jurors observe and evaluate witness
testimony and witness credibility. The State further questioned jurors about the
proof needed to prove beyond a reasonable doubt the offense of murder and about
whether the State had to prove motive or premeditation.           Finally, the State
questioned panel members on whether they could consider the full range of
punishment if Appellant were convicted of the offense of murder.
      Appellant’s counsel in voir dire initially focused on the fact that Appellant is
not required to prove anything and that the State has the burden of proof; Appellant
is presumed innocent until he is proven guilty beyond a reasonable doubt.
Appellant’s trial counsel questioned panel members about their understanding of
“presumed innocent” and proof beyond a reasonable doubt. Appellant’s counsel
also spoke about investigations, the grand jury system and indictments, and who
could be charged with a crime, as well as the types of evidence that could be
presented at trial. Appellant’s trial counsel also questioned jurors about how
witnesses perceive and remember events and the reliability of their testimony.
Appellant’s trial counsel also questioned panel members about their ability to give
Appellant a fair trial and their understanding of intentional or knowing conduct,


                                         14
accidents, and self-defense. The panel members also answered questions about their
understanding and willingness to consider the full range of punishment.
      The State’s opening statement focused on how Appellant and Jeannie argued;
how Appellant went to the bedroom and got a gun; and how, when Jeannie walked
into the bedroom, he shot her. The State indicated that the evidence would show
that, when Mattie came into the bedroom to help her mother, Appellant shot and
killed Mattie. The State mentioned that Appellant fired five shots and that there
would be testimony on blood and DNA evidence; it also addressed Appellant’s claim
that he acted in self-defense.
      Defense counsel, in his opening statement, focused on the chaos and lack of
common sense the day of the shooting. Defense counsel outlined that Appellant had
been drinking, that Appellant argued with Jeannie, that she hit Appellant with a
broom, that she attacked Appellant with a knife when she came into the bedroom,
and that Appellant feared for his safety. Defense counsel asserts that Appellant and
Jeannie struggled over the gun, that it “went off,” and that Appellant never intended
to shoot his daughter.
      After a review of voir dire and opening statements, this court does not find
any relevant information that indicates any harm to Appellant. Likewise, a review
of the remainder of the record does not yield any other relevant information that
would indicate that Appellant suffered harm—even if the trial court erred and should
have included a voluntariness-of-conduct instruction.
                                   IV. Conclusion
      After a review of the entire record and of all four factors—(1) the jury charge
as a whole, (2) the arguments of counsel, (3) the entirety of the evidence, and
(4) other relevant information present in the record, we cannot say that Appellant
suffered any harm from a failure to include his instruction on accident, an instruction
that was not allowed under the law. Moreover, as to the voluntariness-of-conduct
                                          15
instruction, the trial court was not required to submit an instruction because there
was no evidence that Appellant’s actions were involuntary. However, even if we
were to assume that the trial court erred, which we do not hold, we hold that any
error was harmless in light of the four applicable factors, including the
overwhelming evidence of guilt, and that any omission did not injure Appellant’s
rights. We overrule Appellant’s sole issue on appeal.
                               V. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                   MIKE WILLSON
                                                   JUSTICE


January 20, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




                                         16
