             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

               W ALKER, J., filed a concurring opinion.

                                 CONCURRING OPINION

       I agree with the Court’s decision to affirm the judgment of the court of appeals because

Appellant failed to rebut the “strong presumption that counsel’s conduct fell within the wide range

of reasonable professional assistance.” I write separately to highlight that, even when the evidence

supporting an involuntary conduct instruction is incredibly weak and contradicted as it was in this

case, a defendant is nevertheless entitled to such an instruction. Additionally, while I agree with
                                                                                                    2

Appellant’s contention that the manslaughter instruction was objectionable, if counsel intentionally

allowed it to remain in the jury charge, such action was not deficient performance because the error

was in Appellant’s favor.

                            I — The Involuntary Conduct Instruction

       I begin with Appellant’s claim that counsel failed to seek an instruction on involuntary

conduct. In order to establish the claim that trial counsel’s performance was deficient for failing to

request the instruction, Appellant must show that he was entitled to the instruction. Cardenas v.

State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000).

       The majority finds that the issue of voluntary conduct was raised by Appellant’s testimony

that the gun accidentally fired when Hawkins grabbed him.1 I agree. A defendant is entitled to an

instruction on every defensive issue raised by the evidence. Hayes v. State, 728 S.W.2d 804, 807

(Tex. Crim. App. 1987). This is so regardless of whether the evidence supporting the defensive issue

is strong or weak, unimpeached or contradicted, and regardless of what the trial court may or may

not think about the credibility of the evidence. Id. Even a defendant’s testimony alone is sufficient

to raise a defensive issue requiring an instruction. Id.

       While I agree that Appellant’s testimony that he accidentally fired the gun when he was

grabbed from behind was enough to raise the involuntariness issue, the evidence is emblematic of

the type of “weak” and “contradicted” evidence that can support a defensive issue, for the following

reasons.

       Appellant pointed a loaded .38 revolver at Wilson.2 I feel that it is reasonable to assume, for


       1
           Majority op. at 7.
       2
           Rep. R. vol. 5, 81.
                                                                                                    3

the purposes of this concurring opinion, that the .38 caliber revolver was a double-action revolver

because of the fact that a single-action revolver cannot be fired without first manually cocking the

hammer, and neither Appellant nor any other witnesses testified that Appellant cocked the hammer

before the revolver was fired. Although the State was unable to get Appellant to admit to how much

force was necessary to pull the trigger,3 a double-action revolver requires much more force in order

to pull the trigger than a typical, single-action semi-automatic pistol, and firing a double-action

revolver therefore requires more deliberate action than a single-action semi-automatic pistol. With

single-action semi-automatic pistols, the pistol’s hammer is already cocked and a pull of the trigger

performs a single action: it releases the hammer (hence the term “single-action”). After firing, the

hammer is automatically recocked (hence the term “automatic”), and the gun is ready to fire again.

In contrast, with double-action revolvers, the hammer is not already cocked, and a pull of the trigger

performs two actions (hence, “double-action”). The trigger pull first cocks the hammer and then

releases the hammer. Because the trigger pull must do two things, and the cocking of the hammer

is also working against the hammer’s spring, pulling the trigger on a double-action revolver requires

considerably more force than a single-action semi-automatic pistol.4 As a result, it is almost


       3
           Id. at 93.
       4
           Not all semi-automatic pistols are single-action. While nearly all semi-automatics were
once of the single-action type (for example, the Colt M1911), many modern designs (such as the
Beretta 92) are double-action/single-action (“DA/SA”). These DA/SA semi-automatics combine the
heavy trigger pull of a revolver for the first shot with the automatic hammer-cocking of a semi-
automatic, providing additional safety against unintentional discharges with an easy-to-fire single-
action trigger for follow-up shots.

The safety benefits of DA/SA semi-automatics were explained by firearms instructor Todd Green,
that because of:

       a trigger pull that is both longer and heavier than in most other actions, there is far
                                                                                                        4

impossible to accidentally or involuntarily fire a fully-functioning double-action revolver unless the

hammer is in the cocked position.5

        This last point I cannot emphasize enough, and I will repeat it: it is almost impossible to

accidentally or involuntarily fire a fully-functioning double-action revolver unless the hammer is in

the cocked position. Any person who is proficient with a revolver understands that there is a world

of difference between how easily a revolver’s trigger can be pulled when the hammer is cocked as

opposed to when the hammer is not cocked. When the hammer is cocked, very little effort is required

to pull the trigger. A person holding a revolver, with the hammer cocked and his finger on the trigger

or in the trigger guard, very well could inadvertently, “accidentally,” or involuntarily fire the

revolver.

        In this case, however, there was no evidence that the revolver’s hammer was cocked. Because

there was no evidence that the revolver was defective or that the hammer was cocked, the evidence

that Appellant fired the revolver leads to the conclusion that he deliberately and voluntarily pulled

the trigger. Thus, the physical reality of the gun itself strongly militates against any claim that it was

accidentally or involuntarily fired. The only evidence that Appellant was entitled to an



        more tactile feedback that the trigger is being pulled in between the start of
        inadvertent unintentional movement and the Big Loud Noise . . . The shooting
        community always blames the operator for every accident and never considers the
        role that equipment plays in making some guns more or less likely to facilitate those
        accidents.

Todd Louis Green (ToddG), General Thoughts on DA/SA Pistols, PISTOL-FORUM .COM (May 22,
2012, 11:20 PM), https://pistol-forum.com/showthread.php?4212-General-Thoughts-on-DA-SA-
Pistols.
        5
         As with DA/SA semi-automatics, the longer and heavier trigger pull with far more tactile
feedback, see id., makes it very unlikely that a double-action revolver can be inadvertently fired.
                                                                                                   5

involuntariness instruction was his own testimony that the gun accidentally fired. Even though this

evidence was both “weak” and “contradicted,” Appellant was entitled to an involuntary conduct

instruction.

       Yet, as the majority emphasizes, there is a strong presumption that counsel provided

professional assistance. Counsel could have chosen not to seek an involuntary conduct instruction

because Appellant’s testimony that his revolver accidentally fired was weak and contradicted. It

would not have been unreasonable for counsel to believe that a Texas jury would have a number of

members who were familiar enough with revolvers that any claim of “accident” would cause an

enormous amount of not only skepticism, but outright pushback from the jury. Very little

imagination is required to hear the voices of the jurors who know their way around a gun: “this is

hogwash,” “they must be taking us for fools.” Putting forth the issue of “accident” to the jury could

have done more harm than good. I believe that, absent record evidence to the contrary, by not putting

forth a weak and contradicted defensive theory and therefore not antagonizing the jury, counsel was

justified in not requesting an instruction on involuntary conduct.

                                II — The Manslaughter Charge

       Appellant also argues that counsel should have objected to the inclusion of manslaughter in

the jury charge. While I agree that manslaughter should not have been included in the charge, the

error was to his benefit. The State should have objected, not Appellant’s trial counsel.

       Regarding whether manslaughter should have been in the charge at all, unlike the majority’s

conclusion that Appellant’s pointing his gun at Wilson was a reckless act6 and Presiding Judge




       6
           Majority op. at 7.
                                                                                                      6

Keller’s conclusion that the evidence raises manslaughter,7 I believe the evidence that Appellant

pointed his revolver at Wilson and then fired his revolver at Wilson, without evidence that the

revolver’s hammer was cocked, does not show the recklessness required to support manslaughter.

It shows intentional and knowing conduct and thus murder.

        Under § 19.04 of the Penal Code, a person commits the offense of manslaughter if he

recklessly causes the death of an individual. TEX . PENAL CODE Ann. § 19.04. “A person acts

recklessly, or is reckless, with respect to the circumstances surrounding his conduct or to the result

of his conduct if he is aware of but consciously disregards a substantial and unjustifiable risk that

the circumstances exist or the result will occur.” Id. § 6.03(c). “The risk must be of such a nature and

degree that its disregard constitutes a gross deviation from the standard of care that an ordinary

person would exercise under all the circumstances as viewed from the actor’s standpoint.” Id.

        Manslaughter is, as the majority explains, a result of conduct offense.8 Recklessness,

therefore, must be tied to the result of the actor’s conduct, which is, for manslaughter, the death of

an individual.

        Obviously, in this case an individual—Wilson—died. And there is no contention that

Appellant did not cause Wilson’s death. What is lacking is the recklessness. In this case, there was

no evidence that Appellant was aware of but consciously disregarded a risk that someone would be

killed. Instead, the evidence showed that Appellant believed he was walking into a dangerous

situation, and he brought a loaded revolver for protection. He must have known that the revolver was

loaded, because an empty revolver would be ineffective for protection in an unsafe situation. He


        7
            Concurring op. of Keller, P.J., at 6.
       8
            Majority op. at 7 (citing Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013)).
                                                                                                  7

voluntarily got into a heated confrontation with Wilson. He voluntarily pointed the revolver at

Wilson, who was unarmed, and held him at gunpoint. And as explained above, absent any indication

that the hammer of the revolver was cocked, it would be virtually impossible for the double-action

revolver to fire accidentally because someone grabbed the actor from behind. I am confident that

Appellant voluntarily and deliberately pulled the trigger and shot Wilson. The act of pointing a

loaded gun at someone and shooting it toward that person at close range demonstrates an intent to

kill. Ex parte Thompson, 179 S.W.3d 549, 556 n.18 (Tex. Crim. App. 2005). Without evidence that

the hammer was cocked or that the revolver was defective, there was no evidence that Appellant was

acting merely recklessly.

       Therefore, the addition of manslaughter in the charge as a lesser included offense was

objectionable. However, based on the weight of the evidence, I am confident that Appellant’s trial

counsel correctly decided not to object. I am surprised that the State did not object. The inclusion

of the lesser offense of manslaughter actually worked out in Appellant’s favor by giving the jury a

middle option between convicting Appellant of murder or acquitting him and setting him free. If the

manslaughter option was taken away from the jury and the case was submitted on an all-or-nothing

basis, given the weight of the evidence, Appellant likely would have been convicted of murder,

which is a first-degree felony with a punishment range of 5 to 99 years or life,9 and which is

ineligible for community supervision.10 Manslaughter, on the other hand, is a second-degree felony




       9
            TEX . PENAL CODE Ann. §§ 19.02(c), 12.32(a).
       10
            TEX . CODE CRIM . PROC. Ann. arts. 42A.054(a)(2), 42A.056(3).
                                                                                                      8

with a punishment range of 2 to 20 years11 and can be eligible for community supervision.12 If

anything, the inclusion of the manslaughter charge was a windfall to Appellant, and, in my opinion,

trial counsel’s decision not to object to the manslaughter instruction constituted effective assistance.

                                          III — Conclusion

        In conclusion, I agree with the Court that Appellant failed to meet his burden to show

ineffective assistance of counsel. Without record evidence showing that counsel was actually

motivated by bad reasons for choosing not to object, counsel’s “failures” appear to be an objectively

sound decisions. I agree with the Court’s decision to affirm the judgment of the court of appeals.



Filed: September 11, 2019
Do Not Publish




       11
            TEX . PENAL CODE ANN . §§ 19.04(b), 12.33(a).
       12
            TEX . CODE CRIM . PROC. Ann. art. 42A.055.
