V.T.C.A., Penal Code � 6.

01

Vernon's Texas Statutes and Codes Annotated Currentness

Penal Code (Refs & Annos)

Title 2. General Principles of Criminal Responsibility

Chapter 6. Culpability Generally (Refs & Annos)

� 6.01. Requirement of Voluntary Act or Omission

(a) A person commits an offense only if he voluntarily engages in conduct,

including an act, an omission, or possession.

(b) Possession is a voluntary act if the possessor knowingly obtains or receives

the thing possessed or is aware of his control of the thing for a sufficient time
to permit him to terminate his control.

(c) A person who omits to perform an act does not commit an offense unless a law
as defined by Section 1.07 provides that the omission is an offense or otherwise
provides that he has a duty to perform the act.

CREDIT(S)

Acts 1973, 63rd Leg., p. 883, ch. 399, � 1, eff. Jan. 1, 1974. Amended by Acts
1975, 64th Leg., p. 913, ch. 342, � 3, eff. Sept. 1, 1975; Acts 1993, 73rd Leg.,
ch. 3, � 1, eff. Feb. 25, 1993; Acts 1993, 73rd Leg., ch. 900, � 1.01, eff. Sept.
1, 1994.

HISTORICAL AND STATUTORY NOTES

2003 Main Volume

Act 1975, 64th Leg., p. 913, ch. 342, � 3, deleted, from the end of subsec. (a),
"in violation of a statute that provides that the conduct is an offense".

Section 17 of Acts 1975, 64th Leg., ch. 342 provides:

"(a) Except as provided in Subsections (b) and (c) of this section, this Act
applies only to offenses committed on or after its effective date [Sept. 1, 1975],
and a criminal action for an offense committed before this Act's effective date is
governed by the law existing before the effective date, which law is continued in
effect for this purpose, as if this Act were not in force. For purposes of this
section, an offense is committed on or after the effective date of this Act if any
element of the offense occurs on or after the effective date.

"(b) Conduct constituting an offense under existing law that is repealed by this
Act and that does not constitute an offense under this Act may not be prosecuted
after the effective date [Sept. 1, 1975] of this Act. If, on the effective date of
this Act, a criminal action is pending for conduct that was an offense under the
laws repealed by this Act and that does not constitute an offense under this Act,
the action is dismissed on the effective date of this Act. However, a conviction
existing on the effective date of this Act for conduct constituting an offense
under laws repealed by this Act is valid and unaffected by this Act. For purposes
of this section, 'conviction' means a finding of guilt in a court of competent
jurisdiction, and it is of no consequence that the conviction is not final.

"(c) In a criminal action pending on or commenced on or after the effective date

[Sept. 1, 1975] of this Act, for an offense committed before the effective date,
the defendant, if adjudged guilty, shall be assessed punishment under this Act if
he so elects by written motion filed with the trial court before the sentencing
hearing begins."

Acts 1993, 73rd Leg., ch. 3, in subsec. (c), substituted "law as defined by
Section 1.07 of this code" for "statute".

Acts 1993, 73rd Leg., ch. 900, in subsec. (c), deleted "of this code", following
"Section 1.07".

Section 13.02 of Acts 1993, 73rd Leg., ch. 900, provides:

"(a) Except as provided by Subsection (c) of this section, an amendment to any

provision of the Penal Code made by another Act of the 73rd Legislature, Regular
Session, 1993, an amendment in another Act to a provision of Article 6701l-1,
Revised Statutes, or an amendment in another Act to a provision of the Health and
Safety Code also amended by this Act, applies only to an offense committed under
the provision on or after the effective date of the other Act and before September
1, 1994. The amendment made by the other Act continues in effect only for the
limited purpose of the prosecution of an offense committed before September 1,
1994.

"(b) For purposes of this section, an offense is committed before September 1,

1994, if all elements of the offense occur before that date.

"(c) If House Bill No. 354, 73rd Legislature, Regular Session, 1993, [ch. 761] is
enacted and becomes law, the amendments made to the Penal Code by that Act
continue in effect on and after September 1, 1994. If Senate Bill No. 456, 73rd
Legislature, Regular Session, 1993, [ch. 987] is enacted and becomes law, the
amendments made to the Penal Code by that Act continue in effect on and after
September 1, 1994."

Prior Laws:

Rev.P.C. 1879, arts. 44, 576, 577.

Rev.P.C. 1895, arts. 45, 681, 682.

Rev.P.C. 1911, arts. 45, 1111, 1112.

Vernon's Ann.P.C. (1925) arts. 1228, 1229.

CROSS REFERENCES

"Act" defined, see V.T.C.A., Penal Code � 1.07.

"Conduct" defined, see V.T.C.A., Penal Code � 1.07.

"Omission" defined, see V.T.C.A., Penal Code � 1.07.

"Person" defined, see V.T.C.A., Penal Code � 1.07.

"Possession" defined, see V.T.C.A., Penal Code � 1.07.

LAW REVIEW COMMENTARIES

Annual survey of Texas law: Intoxication. Shirley W. Butts, 35 Sw.L.J. 520 (1981).

Indictments and motions to quash: Problems of Thomas v. State and Ferguson v.

State. 34 Baylor L.Rev. 459 (1982).

Negligence: Reappraisal or its validity as basis for criminal liability and

sanction. 20 S.Tex.L.J. 179 (1979).

Texas' new laws on DWI. Steven A. Wisch and Ray Bass, 21 Hous.Law. 40 (1983).

LIBRARY REFERENCES

2003 Main Volume

Criminal Law 19, 26.

Westlaw Topic No. 110.

C.J.S. Criminal Law �� 31, 44 to 45, 1110.

RESEARCH REFERENCES

2006 Electronic Pocket Part Update

ALR Library

66 ALR 5th 397, What Constitutes Obstructing or Resisting Officer, in Absence of

Actual Force.

45 ALR 5th 767, Validity, Construction, and Application of State Statute

Criminalizing Possession of Contraband by Individual in Penal or Correctional
Institution.

6 ALR 5th 733, What Constitutes Offense of Cruelty to Animals--Modern Cases.

43 ALR 4th 788, Sufficiency of Evidence of Possession in Prosecution Under State

Statute Prohibiting Persons Under Indictment For, or Convicted Of, Crime from
Acquiring, Having, Carrying, or Using Firearms or Weapons.

56 ALR 3rd 948, Conviction of Possession of Illicit Drugs Found in Premises of

Which Defendant was in Non-Exclusive Possession.

169 ALR 315, Comment Note.--Duty in Instructing Jury in Criminal Prosecution to

Explain and Define Offense Charged.
Encyclopedias

TX Jur. 3d Animals � 157, Dog Fighting.

TX Jur. 3d Criminal Law � 3, Generally; Purposes.

TX Jur. 3d Criminal Law � 8, Certainty; Vagueness.

TX Jur. 3d Criminal Law � 137, Generally; Requirement of Voluntary Act or

Omission.

TX Jur. 3d Criminal Law � 138, When Possession Constitutes Voluntary Act.

TX Jur. 3d Criminal Law � 139, When Omission Constitutes Offense.

TX Jur. 3d Criminal Law � 146, Recklessness.

TX Jur. 3d Criminal Law � 303, Criminally Negligent Homicide as Independent Charge

-- Accident; Mistake of Fact.

TX Jur. 3d Criminal Law � 325, Degree of the Offense; Voluntary Release of Victim.

TX Jur. 3d Criminal Law � 1449, Motor Vehicles.

TX Jur. 3d Criminal Law � 1461, Evidence; Under Current Statute.

TX Jur. 3d Criminal Law � 1466, Prosecution; Evidence.

TX Jur. 3d Criminal Law � 1873, Accident.

TX Jur. 3d Criminal Law � 3249, Intoxication.

TX Jur. 3d Criminal Law � 4218, Evidence of Extraneous Crimes or Bad Acts; Degree
of Proof.

TX Jur. 3d Criminal Law � 4920, Standard of Review Where Charge Error Has Been
Objected to.

TX Jur. 3d Criminal Law � 4928, Verdict.

Treatises and Practice Aids

Charlton, 6 Tex. Prac. Series � 1.6, Definitions.

Charlton, 6 Tex. Prac. Series � 4.2, Acts or Omissions.

Charlton, 6 Tex. Prac. Series � 5.2, Theories of Parties' Liability.

Charlton, 6 Tex. Prac. Series � 10.5, Manslaughter as a Lesser Included Offense.

Charlton, 6 Tex. Prac. Series � 12.3, Public Lewdness.

Charlton, 6 Tex. Prac. Series � 13.6, Injury to a Child or Elderly Individual.

Charlton, 6 Tex. Prac. Series � 25.7, Obscenity.

Charlton, 6 Tex. Prac. Series � 19.10, Misapplication of Fiduciary Property or

Property of Financial Institution.
McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 109.1, Model for Dictating
Objections to the Court's Charge.

McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 110.4, Accident -- Failure
to Instruct on Involuntary Conduct.

McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 105.11, Involuntary

Conduct -- Defense of Accident.

Dix and Dawson, 40 Tex. Prac. Series � 2.19, Stolen Property -- Conduct Within
County of Venue.

Dix and Dawson, 40 Tex. Prac. Series � 2.42, Elements of the Offense.

Dix and Dawson, 41 Tex. Prac. Series � 20.122, Exceptions to Offenses Defined in
the Penal Code.

Dix and Dawson, 43 Tex. Prac. Series � 36.43, "Defenses" that Negate Elements.

Dix and Dawson, 43 Tex. Prac. Series � 31.262, Need to Show Participation Before
or During Offense.

Civins, Hall & Sahs, 45 Tex. Prac. Series � 4.15, The Intent Element of
Environmental Crimes.

NOTES OF DECISIONS

Accident, instructions 11

Affirmative link 5.5

Assaults, instructions 12

Burden of proof 8

Duress, voluntary conduct 4

Expert testimony 15

Homicide, instructions 13

Instructions 10-14

Instructions - In general 10

Instructions - Accident 11

Instructions - Assaults 12

Instructions - Homicide 13

Instructions - Shooting 14

Intent, voluntary conduct 3

Local ordinances 7

Omissions 6

Possession 5

Purpose 1

Review 16

Shooting, instructions 14

Sufficiency of evidence 9

Voluntary conduct 2-4

Voluntary conduct - In general 2

Voluntary conduct - Duress 4

Voluntary conduct - Intent 3

1. Purpose

By enacting Subsec. (a) of this section legislature intended to assure that

persons not be criminally punished for acts, omissions, and possessions not done
voluntarily. Dockery v. State (Cr.App. 1975) 542 S.W.2d 644.

It is stated purpose of penal code to proscribe certain types of harmful conduct,

not simply results of conduct. Collins v. State (App. 8 Dist. 1994) 890 S.W.2d
893. Criminal Law 13(1)

2. Voluntary conduct--In general

A person may act unintentionally and still commit a criminal offense provided he
acts with knowledge, recklessness, or negligence. Simpkins v. State (Cr.App. 1979)
590 S.W.2d 129. Criminal Law 23

Rational trier of fact could find in assault trial that defendant knowingly and
voluntarily struck victim with his motor vehicle, even though defendant was
paralyzed from chest down, operated vehicle with hand controls, and contended that
his foot was on accelerator when he shifted to "drive" only because of leg spasm
of which he was entirely unaware. Shugart v. State (App. 9 Dist. 1990) 796 S.W.2d
288, petition for discretionary review refused. Automobiles 355(14)

Person engages in "voluntary conduct", for purposes of imposing criminal

liability, when conduct includes voluntary act and its accompanying mental state
regardless of whether such conduct also includes involuntary act. Conroy v. State
(App. 1 Dist. 1992) 843 S.W.2d 67, petition for discretionary review refused.
Criminal Law 26

Person acts "voluntarily" when his conduct includes voluntary act and its
accompanying mental state. Gerber v. State (App. 1 Dist. 1993) 845 S.W.2d 460,
petition for discretionary review refused, rehearing on petition for discretionary
review denied. Criminal Law 26

"Voluntarily," as used in Texas Penal Code providing that person commits offense
only if he voluntary engages in conduct, does not include concept of free will;
"voluntarily" means only absence of accidental act, omission, or possession.
Alford v. State (Cr.App. 1993) 866 S.W.2d 619. Criminal Law 20

Conduct must be voluntary in order for it to be criminal. Hermosillo v. State

(App. 2 Dist. 1995) 903 S.W.2d 60, petition for discretionary review refused.
Criminal Law 26

Defendant was not entitled to instruction on voluntariness in his aggravated

robbery prosecution, where defendant did not argue that his actions were literally
involuntary, but instead alleged that he was coerced into participating in
robbery. Hermosillo v. State (App. 2 Dist. 1995) 903 S.W.2d 60, petition for
discretionary review refused. Criminal Law 814(8)

That voluntary conduct includes involuntary act does not necessarily render
engaging in that conduct "involuntary," for purposes of determining whether person
committed criminal offense. Molinar v. State (App. 8 Dist. 1995) 910 S.W.2d 572.
Criminal Law 20

Defendant was not entitled to instructions on voluntary conduct, in capital murder

prosecution arising from murder committed in course of robbery; record did not
raise any evidence that defendant's conduct in shooting victim was not voluntary,
and there was no evidence that struggle over gun occurred between defendant and
security guard. McFarland v. State (Cr.App. 1996) 928 S.W.2d 482, rehearing
denied, certiorari denied 117 S.Ct. 966, 519 U.S. 1119, 136 L.Ed.2d 851, habeas
corpus denied 163 S.W.3d 743. Homicide 1492

"Voluntariness," within meaning of statutory provision requiring voluntary act or

omission for commission of offense, refers only to one's physical bodily
movements. McFarland v. State (Cr.App. 1996) 928 S.W.2d 482, rehearing denied,
certiorari denied 117 S.Ct. 966, 519 U.S. 1119, 136 L.Ed.2d 851, habeas corpus
denied 163 S.W.3d 743. Criminal Law 20; Criminal Law 26

An act is performed "voluntarily" for purposes of Penal Code if it is committed

without accident, omission, or possession, although to be considered voluntary, an
act need not be product of defendant's free will; "voluntary" is essentially
antonym of "accident." Avila v. State (App. 8 Dist. 1997) 954 S.W.2d 830,
rehearing overruled, petition for discretionary review refused. Criminal Law 20

Evidence did not support requested jury instruction on voluntariness in criminally

negligent homicide trial, absent any evidence that defendant's failure to keep
proper lookout and stop for red light at intersection was involuntary. Rhodes v.
State (App. 6 Dist. 1999) 997 S.W.2d 692, petition for discretionary review
refused. Automobiles 357(13); Automobiles 357(13); Automobiles 357(13)

Evidence was insufficient to establish that defendant acted voluntarily, and thus,
was insufficient to support conviction for taking a controlled substance into a
correctional facility; although marijuana was found in defendant's pocket, he was
transported into the jail against his will because he was under arrest. Brown v.
State (App. 10 Dist. 2000) 35 S.W.3d 183, petition for discretionary review
granted, petition for discretionary review refused, reversed 89 S.W.3d 630.
Convicts 5

Fact that police officers provided defendant with the opportunity to volunteer
that he had contraband before he was placed in jail did not establish that
defendant acted voluntarily in taking a controlled substance into a correctional
facility, as required to obtain a conviction; the opportunity to volunteer was
improper, as it was presented in a custodial setting and was therefore tantamount
to an attempt to compel defendant to waive his Fifth Amendment privilege against
self-incrimination. Brown v. State (App. 10 Dist. 2000) 35 S.W.3d 183, petition
for discretionary review granted, petition for discretionary review refused,
reversed 89 S.W.3d 630. Convicts 5; Criminal Law 393(1)

"Voluntariness," within the meaning of statute that states a person commits an

offense only if he voluntarily engages in conduct, including an act, an omission,
or possession, refers only to one's physical bodily movements. Brown v. State
(Cr.App. 2002) 89 S.W.3d 630. Criminal Law 20

"Voluntariness," within the meaning of Penal Code section providing that a person
commits an offense only if he voluntarily engages in conduct, refers only to one's
own physical body movements; 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. Rogers v. State (Cr.App. 2003) 105 S.W.3d 630, on remand 2004 WL
2804855. Criminal Law 20

Murder defendant's actions in shooting gun at intended victim were "voluntary,"

within meaning of statute conditioning criminal culpability on a voluntary act or
omission, despite defendant's contention that he was forced to shoot when intended
victim charged at him with a gun; defendant did not allege that his physical
movements were involuntarily made or accidental. Hayes v. State (App. 1 Dist.
2003) 124 S.W.3d 781, rehearing overruled, petition for discretionary review
granted, affirmed 161 S.W.3d 507. Homicide 565

Defendant's conduct in filming his encounter with police and repeatedly moving his
arm out of officer's reach to prevent officer from placing him in handcuffs,
despite officer's telling defendant more than 15 times to place his hand behind
his back, constituted voluntary action, not a mere omission to act or "mere
speech", and thus State did not have to prove that defendant had a duty to submit
to arrest to establish offense of interference with public duties. Berrett v.
State (App. 1 Dist. 2004) 152 S.W.3d 600, rehearing overruled, petition for
discretionary review refused. Obstructing Justice 7

3. ---- Intent, voluntary conduct

Defendant's conduct is not rendered involuntary merely because he or she did not
intend result of his or her conduct. Henderson v. State (App. 14 Dist. 1992) 825
S.W.2d 746, petition for discretionary review refused. Criminal Law 20

Distinction to be drawn in determining whether homicide is punishable as criminal

act is not whether act was intentional or unintentional, but whether it was
voluntary or involuntary. Vollbaum v. State (App. 10 Dist. 1992) 833 S.W.2d 652,
petition for discretionary review refused. Homicide 504

If defendant engages in voluntary act and has requisite mental state, his conduct
is not rendered involuntary simply because conduct also included involuntary act
or because defendant did not intend result of his conduct. Cruz v. State (App. 14
Dist. 1992) 838 S.W.2d 682, rehearing denied, petition for discretionary review
refused. Criminal Law 20; Criminal Law 25
Defendant's conduct is not rendered "involuntary" for purposes of determining
whether he committed criminal offense, merely because he did not intend result of
his conduct. Molinar v. State (App. 8 Dist. 1995) 910 S.W.2d 572. Criminal Law 25

Issue of voluntariness of one's conduct or bodily movement, for purposes of

determining whether one committed criminal offense, is separate from issue of
one's mental state. Molinar v. State (App. 8 Dist. 1995) 910 S.W.2d 572. Criminal
Law 20

To support a conviction, evidence must show that a defendant committed a voluntary

act with the requisite mental state. Rhodes v. State (App. 6 Dist. 1999) 997
S.W.2d 692, petition for discretionary review refused. Criminal Law 568

To establish possession of contraband, the State must show that defendant knew of
its existence and exercised actual care, custody, control, or management over the
contraband; the evidence used to satisfy these elements may be direct or
circumstantial. Grantham v. State (App. 12 Dist. 2003) 116 S.W.3d 136, petition
for discretionary review refused. Weapons 4

State was not required to show that child's violation of terms of his probation
were willful to authorize modification of his probation. In re P.Z. (App. 7 Dist.
2003) 2003 WL 22389434, Unreported. Infants 225

4. ---- Duress, voluntary conduct

When defendant raises defensive theory that criminal conduct involved was product
of duress or compulsion, threats must reach level articulated in definition of
duress contained in � 8.05 governing compulsion before they are legally excused
and hence involuntary under � 6.01 requiring that in order for actions to be
criminal they must be voluntary. U.S. v. Webb, C.A.5 (Tex.) 1984, 747 F.2d 278,
certiorari denied 105 S.Ct. 1222, 469 U.S. 1226, 84 L.Ed.2d 362. Criminal Law 38

Even if "voluntariness," within provision of Penal Code that person commits

offense only if he voluntarily engages in conduct, incorporates mental element in
nature of free will, voluntariness as element of offense of robbery did not negate
element of affirmative defense of duress. Alford v. State (Cr.App. 1993) 866
S.W.2d 619. Robbery 3

5. Possession

Definition of "possession" in this section applies to prosecution under Controlled

Substances Act [Health & Safety Code � 481.001 et seq.]. Garcia v. State (App. 4
Dist. 1990) 790 S.W.2d 22, petition for discretionary review granted, appeal
abated 840 S.W.2d 957. Controlled Substances 26

"Possession" is conduct and thus can form the basis for an offense under the penal
code. Byrd v. State (App. 10 Dist. 1992) 835 S.W.2d 223. Criminal Law 26;
Controlled Substances 25

"Possession" needed for conviction for unlawful possession, is act by one who
knowingly obtains or receives thing possessed or is aware of control of thing for
sufficient time to permit that person to terminate control. Sosa v. State (App. 1
Dist. 1993) 845 S.W.2d 479, petition for discretionary review refused. Controlled
Substances 26; Controlled Substances 27

Truck driver's knowing possession of 600 kilograms of cocaine needed to support

conviction for possession with intent to deliver was established by evidence that
FBI received tip that truck from Brownsville would deliver load of narcotics to
warehouse under surveillance in Houston, truck left one day earlier than necessary
to make scheduled deliveries, Houston was not on route for scheduled delivery,
driver had exclusive control of truck, driver confessed knowing that he was
transporting narcotics or something illegal, driver wanted truck pulled from ditch
as quickly as possible regardless of resulting damage, and driver did not know who
had hired defense counsel. Sosa v. State (App. 1 Dist. 1993) 845 S.W.2d 479,
petition for discretionary review refused. Controlled Substances 81

When state relies on circumstantial evidence to prove "knowing" possession case,

state must affirmatively link accused to contraband in such manner that one could
reasonably conclude that accused knew of contraband's existence and exercised
control over it. Sosa v. State (App. 1 Dist. 1993) 845 S.W.2d 479, petition for
discretionary review refused. Controlled Substances 80

Crack cocaine found in pocket of defendant's shorts was admissible as evidence of

extraneous offense of drug possession, in penalty phase of defendant's murder
trial, where shorts were found in trash bag in trash can outside defendant's
apartment, and defendant's roommate, who put trash bag in can, had neither time
nor motive to put cocaine in pocket of shorts. Smith v. State (App. 14 Dist. 2001)
56 S.W.3d 739, petition for discretionary review refused. Sentencing And
Punishment 313

The State may accomplish its task of proving "possession," where "possession" is
an element of the charged offense, by proving with either direct or circumstantial
evidence the existence of an affirmative link demonstrating defendant's
consciousness of his connection with the thing allegedly possessed and that
defendant knew what it was. Hawkins v. State (App. 1 Dist. 2002) 89 S.W.3d 674,
petition for discretionary review refused. Criminal Law 26

When contraband is found neither on defendant's person nor in his exclusive

possession, additional facts must affirmatively link the contraband to the
accused. Grantham v. State (App. 12 Dist. 2003) 116 S.W.3d 136, petition for
discretionary review refused. Weapons 4

Court of Appeals did not need to consider sufficiency of evidence that defendant
had control of shotgun long enough to terminate control, so as to constitute
"possession" of shotgun under statute banning possession of a firearm by a felon,
where jury returned a general verdict of guilt, and State produced sufficient
evidence of alternate means of showing possession under statute. Powell v. State
(App. 1 Dist. 2003) 112 S.W.3d 642, petition for discretionary review refused.
Criminal Law 1134(8)

5.5. Affirmative link

Some of the factors that may establish "affirmative links" connecting defendant to
contraband that he allegedly possessed include: (1) whether the contraband was in
the defendant's vehicle; (2) whether the contraband was in some placed owned by
the defendant; (3) whether the contraband was conveniently accessible; (4) whether
the contraband was in plain view; and (5) whether the contraband was found in an
enclosed space; the number of factors present is less significant than the logical
force the factors have in establishing the elements of the offense with which the
defendant has been charged. Hawkins v. State (App. 1 Dist. 2002) 89 S.W.3d 674,
petition for discretionary review refused. Weapons 4

6. Omissions

Negligence by omission consists in the omission to perform an act with the

performance of which the party is especially charged, and there can be no criminal
negligence in the omission to perform an act which it is not the express duty of
the party to perform. Under this rule brakemen on a railway train, whose duty is
shown to pertain in no degree to the operation of a locomotive, nor to the
watching of the railway track, nor the sounding of the danger signal, cannot be
held liable for the killing of a person by the locomotive, operated by the
engineer and fireman, upon whom the duty of operating it exclusively devolved.
Anderson v. State (App. 1889) 11 S.W. 33, 11 Am.St.Rep. 189.

Failure to act, an omission, is not offense unless defendant had statutory duty to
act. Sabine Consol., Inc. v. State (App. 3 Dist. 1991) 816 S.W.2d 784, petition
for discretionary review refused, certiorari denied 113 S.Ct. 364, 506 U.S. 934,
121 L.Ed.2d 277. Criminal Law 26

Information charging criminal omission must set forth facts which give rise to
statutory duty to act. Sabine Consol., Inc. v. State (App. 3 Dist. 1991) 816
S.W.2d 784, petition for discretionary review refused, certiorari denied 113 S.Ct.
364, 506 U.S. 934, 121 L.Ed.2d 277. Indictment And Information 96

Indictment, stating that defendant knowingly and intentionally possessed and

attempted to possess a controlled substance by fraud by obtaining multiple
prescriptions from four doctors without informing each doctor of current and past
treatment of other doctors, charged defendant with conduct by commission, not by a
failure to act or omission, and thus, state was not required to either plead or
prove a corresponding duty to act under either current or former statute governing
crimes committed by omission. Oler v. State (App. 5 Dist. 1999) 998 S.W.2d 363,
petition for discretionary review refused, untimely filed. Controlled Substances
67

Generally, failing to report a crime, like any other failure to act, is not a
crime unless a specific law provides that the omission is an offense or otherwise
provides that a person has a duty to perform the act. Ed Rachal Foundation v.
D'Unger (Sup. 2006) 2006 WL 1043081. Obstructing Justice 1

7. Local ordinances

City code section providing that person committed offense if he operated or caused
to be operated vehicle for purpose of transporting liquid waste without applicable
permit was not unconstitutional as being inconsistent with Penal Code section
stating that only statute could make failure to perform an act a criminal offense;
while the provision created duty on part of liquid waste transporter to obtain a
permit, it did not impose liability for failure to obtain a permit. Bidelspach v.
State (App. 5 Dist. 1992) 840 S.W.2d 516, rehearing denied, petition for
discretionary review refused, petition for discretionary review granted, review
dismissed as improvidently granted 850 S.W.2d 183. Municipal Corporations 592(1)

City ordinance providing that person committed an offense if he operated or caused

to be operated vehicle for transporting of liquid waste without applicable permit
was not inconsistent with section of Penal Code delineating circumstances under
which person could be held criminally responsible for conduct of another and thus
was not unconstitutional; ordinance did not impose criminal liability based on
status, but, rather, liability was based on operating or causing another to
operate a vehicle that transported liquid waste without a permit. Bidelspach v.
State (App. 5 Dist. 1992) 840 S.W.2d 516, rehearing denied, petition for
discretionary review refused, petition for discretionary review granted, review
dismissed as improvidently granted 850 S.W.2d 183. Automobiles 62

City ordinance provision requiring completion of four-part trip ticket to document

generation, transportation, and disposal of liquid waste conflicted with Penal
Code and violated Texas Constitution, in that it imposed criminal liability for an
omission--the failure to complete a trip ticket. Bidelspach v. State (App. 5 Dist.
1992) 840 S.W.2d 516, rehearing denied, petition for discretionary review refused,
petition for discretionary review granted, review dismissed as improvidently
granted 850 S.W.2d 183. Automobiles 61

Municipal ordinances were not intended to be included within ambit of Penal Code
section providing that only a statute can make failure to perform an act a
criminal offense. Bidelspach v. State (App. 5 Dist. 1992) 840 S.W.2d 516,
rehearing denied, petition for discretionary review refused, petition for
discretionary review granted, review dismissed as improvidently granted 850 S.W.2d
183. Municipal Corporations 592(1)

8. Burden of proof

Evidence must show that defendant committed voluntary act with required mental
state. Moss v. State (App. 14 Dist. 1993) 850 S.W.2d 788, rehearing denied,
petition for discretionary review refused. Criminal Law 20

Because "voluntarily" means absence of accidental act, omission or possession, it

is not fact that state must prove in every case; rather, state need not prove
voluntariness unless evidence raises issue of accident, in which case state must
disprove theory of accident beyond reasonable doubt. Alford v. State (Cr.App.
1993) 866 S.W.2d 619. Criminal Law 20

9. Sufficiency of evidence

Actions of defendant, who raised up from sleeping position on floor when victim
walked into room, whereupon his pistol which he was allegedly trying to uncock
went off, fatally striking victim, was sufficiently voluntary to establish offense
of criminally negligent homicide under 1974 Penal Code. Dockery v. State (Cr.App.
1975) 542 S.W.2d 644. Homicide 708

In prosecution for murder, evidence, including expert and lay testimony, was
sufficient to support finding that defendant was acting voluntarily when he came
home from work and, after stating he was "throwing up the devil" and vomiting,
fought with his wife, grabbed her throat, and choked her. Wade v. State (App. 14
Dist. 1982) 630 S.W.2d 418. Homicide 1209

Setup club owner's failure to ask minors to leave premises or even check
identification was sufficient "conduct" to clearly show minors were allowed to
stay as a result of the failure and to support the owner's conviction for
recklessly contributing to delinquency of minors by allowing them to remain on
premises where alcoholic beverages were consumed. Axelrod v. State (App. 1 Dist.
1988) 764 S.W.2d 296, petition for discretionary review granted, petition for
discretionary review dismissed 789 S.W.2d 594. Infants 13

Evidence was sufficient to support finding that defendant voluntarily took

marihuana into the jail, as required to support conviction for taking marihuana
into a correctional facility; defendant made no claim of involuntary physical
bodily movements but only asserted that he, in custody, under restraint, was
compelled to enter into the correctional facility with the marihuana in his
possession. Brown v. State (Cr.App. 2002) 89 S.W.3d 630. Convicts 5

Evidence was sufficient to sustain defendant's possession of firearm by felon

conviction; after placing defendant under arrest for evading police, officers
discovered loaded shotgun in defendant's vehicle, in plain view and easily
accessible. Hawkins v. State (App. 1 Dist. 2002) 89 S.W.3d 674, petition for
discretionary review refused. Weapons 4

Defendant's omission of "management" aspect of possession from his first and

second points of error was not fatal to his sufficiency of the evidence challenge
to his conviction for knowing possession of firearm by a felon, where defendant
challenged the mens rea component of "knowing possession," rather than possession
generally. Powell v. State (App. 1 Dist. 2003) 112 S.W.3d 642, petition for
discretionary review refused. Criminal Law 1130(2)

Evidence was legally and factually sufficient in murder prosecution to support

findings that defendant acted both intentionally or knowingly and voluntarily when
he shot victim; while defendant claimed in tape-recorded statement that shooting
was accidental and eyewitnesses testified that he was hysterical, scared, and
distraught afterward, there was also evidence that defendant entered victim's
apartment intending to harm him, that he retrieved firearm before entering, that
he began to argue with victim almost as soon as he entered apartment, and that he
fled scene after shooting. Fernandez v. State (App. 10 Dist. 2003) 2003 WL 131852,
Unreported. Homicide 1135

Evidence was legally sufficient to find defendant acted recklessly in death of

victim, supporting conviction for manslaughter; jury could have reasonably
disbelieved testimony of expert witness stating that defendant may not have been
aware of the danger posed to victim by defendant's driving and consciously
disregarded that danger, some of witness's testimony was based on average reaction
time to apply brakes, while defendant was charged with recklessly accelerating
when victim jumped on hood of car, and jury reasonably could have determined that
defendant did have time to react when victim jumped on hood of car. Paslay v.
State (App. 6 Dist. 2003) 2003 WL 21804752, Unreported. Homicide 1148

For purposes of conviction for possession with intent to deliver controlled

substance, evidence was legally and factually sufficient to demonstrate
defendant's knowing possession of controlled substance; evidence affirmatively
linked defendant to the offense and indicated that he had ongoing control over the
contraband long enough to have terminated his control over it. Wilson v. State
(App. 1 Dist. 2004) 2004 WL 213388, Unreported, petition for discretionary review
refused. Controlled Substances 81

10. Instructions--In general

Defendant was not entitled to instruction on voluntariness where he denied any act
in connection with fire which resulted in death of victims. Graf v. State (App. 10
Dist. 1990) 807 S.W.2d 762, petition for discretionary review refused. Criminal
Law 772(6)

Evidence raises defense requiring instruction on voluntariness only if defendant

admits committing act charged and defense would absolve him from criminal
responsibility for engaging in admitted conduct. Graf v. State (App. 10 Dist.
1990) 807 S.W.2d 762, petition for discretionary review refused. Criminal Law
772(6)

Instruction on voluntariness is necessary only if defendant admits committing act

charged and seeks to absolve himself from criminal responsibility for engaging in
the conduct. Vollbaum v. State (App. 10 Dist. 1992) 833 S.W.2d 652, petition for
discretionary review refused. Criminal Law 772(5)

Where evidence shows only lack of intent to cause resulting injuries or only
involuntary act that is only part of overall voluntary conduct, trial court is
correct in refusing requested charge on voluntary conduct. Cruz v. State (App. 14
Dist. 1992) 838 S.W.2d 682, rehearing denied, petition for discretionary review
refused. Criminal Law 772(5)

Defendant charged with unlawful possession with intent to deliver controlled

substance was not entitled to jury instruction on voluntariness of defendant's act
in absence of evidence that raised issue of voluntariness. Moss v. State (App. 14
Dist. 1993) 850 S.W.2d 788, rehearing denied, petition for discretionary review
refused. Criminal Law 814(5)

Jury charge in aggravated robbery trial did not improperly delegate burden of
proof to both parties on same issue by requiring state to prove voluntariness of
defendant's conduct beyond reasonable doubt while requiring defendant, in proving
defense of duress, to establish his actions were involuntary by preponderance of
evidence; "voluntariness" within meaning of Texas Penal Code providing that person
commits offense only if he voluntarily engages in conduct, referred only to
defendant's physical bodily movements, and defendant did not claim that his bodily
movements were accidental or manipulated by his coercer so that defendant was not
required to disprove voluntariness. Alford v. State (Cr.App. 1993) 866 S.W.2d 619.
Criminal Law 778(2); Criminal Law 778(6)

Defendant is entitled to a jury instruction on the issue of the voluntariness of

his acts only if there is evidence of an independent event, such as the conduct of
a third party, that could have precipitated the incident. Rhodes v. State (App. 6
Dist. 1999) 997 S.W.2d 692, petition for discretionary review refused. Criminal
Law 814(5)

11. ---- Accident, instructions

Function of former defense of accident is performed now by requirement of subsec.

(a) of this section that person commits offense only if "he voluntarily engages in
conduct * * *," and if issue is raised by evidence, jury may be charged that
defendant should be acquitted if there is reasonable doubt as to whether he
voluntarily engaged in conduct of which he is accused. Simpkins v. State (Cr.App.
1979) 590 S.W.2d 129.

In murder prosecution arising from victim's shooting death, defendant was not
entitled to jury charge on accident; evidence indicated that defendant pulled
slide back on handgun prior to shooting victim in the head. Henderson v. State
(App. 14 Dist. 1992) 825 S.W.2d 746, petition for discretionary review refused.
Homicide 1492

Defendant was not entitled to jury issue on involuntary conduct, absent evidence
that defendant acted under force externally applied; defendant's statement that
"it was an accident" did not raise issue of voluntariness of his conduct. Gerber
v. State (App. 1 Dist. 1993) 845 S.W.2d 460, petition for discretionary review
refused, rehearing on petition for discretionary review denied. Homicide 1492

Instruction on accidental conduct was foreclosed in prosecution of defendant for

murdering his wife by virtue of defendant's own testimony that he shoved wife and
she struck her head during argument, and that he strangled her with electrical
cord in attempt to make it look like someone had killed his wife, and by evidence
that wife died from asphyxia due to ligature strangulation. King v. State (App. 8
Dist. 1996) 919 S.W.2d 819. Homicide 1492

Defense counsel's request for an "accident" instruction in murder prosecution was

not the equivalent of a request for an instruction concerning "a voluntary act."
Rogers v. State (Cr.App. 2003) 105 S.W.3d 630, on remand 2004 WL 2804855. Criminal
Law 824(4)

Defendant's request for an "accident" instruction was insufficient to alert the

trial judge that he wanted an instruction on "voluntary act" in murder
prosecution; not only did defendant fail to articulate exactly what he wanted, but
when the trial court denied his "accident" request, he did not explain, object, or
otherwise clarify his request, and defendant's testimony did not unambiguously
develop the theory that somehow his finger had been made to exert requisite 14 1/2
to 16 pounds of force to squeeze trigger and fire gun. Rogers v. State (Cr.App.
2003) 105 S.W.3d 630, on remand 2004 WL 2804855. Criminal Law 824(4)

Evidence was presented to support finding that murder defendant did not
voluntarily cause death of victim, and thus defendant was entitled to jury charge
on the voluntariness of his conduct, where witness testified that victim grabbed
defendant's gun and the two were struggling over it when it discharged, that
defendant tried "to take [the gun] away from the victim and the gun
"automatically" went off, and that she thought the killing was an "accident,"
police officer testified that when he questioned defendant regarding the incident,
defendant characterized the killing as an "accidental" shooting, and defendant
claimed in videotaped statement that when victim picked up gun and held it near
his face, defendant tried to grab the gun and it "went off." Hayward v. State
(App. 14 Dist. 2003) 2003 WL 21782592, Unreported. Homicide 1492

12. ---- Assaults, instructions

Defendant charged with assaulting a peace officer was not entitled to a charge on
voluntary conduct, even assuming that officer's injuries were caused by fall and
not by defendant's assault with belt, where there was no evidence that defendant
did not voluntarily strike officer with belt. Pena v. State (App. 13 Dist. 1987)
725 S.W.2d 505. Criminal Law 814(5)

Trial court correctly refused to give assault defendant's requested charge

relating reasonable doubt standard to whether his causative act was voluntary,
where language of defendant's requested instruction was legally flawed in that
term "accident" was used, and trial court properly charged jury that if they had
reasonable doubt as to whether defendant voluntarily drove his vehicle into
victim, jury would have to acquit defendant. Shugart v. State (App. 9 Dist. 1990)
796 S.W.2d 288, petition for discretionary review refused. Criminal Law 789(4)
Trial court did not commit fundamental error in assault trial by giving charge on
voluntary conduct which was separate and apart from paragraph that applied
definition of voluntary conduct to facts; defendant made no such objection at
trial, and form and content of charge was proper. Shugart v. State (App. 9 Dist.
1990) 796 S.W.2d 288, petition for discretionary review refused. Criminal Law
1038.1(4)

Evidence that defendant set off chain of events that caused injury to corrections
officer when he became violent upon discovering that corrections officials were
doing routine shakedown of his cell did not raise issue of voluntariness of
defendant's conduct so as to entitle defendant to instruction on issue of
voluntariness in trial on charge of aggravated assault of correctional officer,
even though defendant did not intentionally knock officer to floor or intend to
cause her injuries. Cruz v. State (App. 14 Dist. 1992) 838 S.W.2d 682, rehearing
denied, petition for discretionary review refused. Criminal Law 772(5)

Defendant was entitled to instruction on lesser included offense of aggravated

assault in his trial for burglarizing habitation while attempting to commit or
committing aggravated assault, where there was conflicting evidence on whether
defendant voluntarily entered habitation or entered it with resident's consent and
no photographic evidence supporting state's argument that defendant broke doorway
when entering habitation. Jordan v. State (App. 10 Dist. 1999) 1 S.W.3d 153,
rehearing overruled, petition for discretionary review refused. Criminal Law
795(2.30)

Trial court's error in failing to give jury requested instruction on lesser

included offense of aggravated assault, in trial for burglarizing habitation while
attempting to commit or committing aggravated assault, was not harmless; jury was
deprived of meaningful alternative for assessing whether defendant entered
residence with victim's consent. Jordan v. State (App. 10 Dist. 1999) 1 S.W.3d
153, rehearing overruled, petition for discretionary review refused. Criminal Law
1173.2(4)

13. ---- Homicide, instructions

Defendant's swerving of his vehicle to avoid hitting deceased, who had charged
defendant's vehicle, who had been struck by side mirror of defendant's vehicle,
and who fell underneath vehicle's wheels, was voluntary conduct and did not
warrant requested instruction on voluntariness in manslaughter prosecution, even
though defendant did not intend to cause the result. Durbin v. State (App. 8 Dist.
1986) 716 S.W.2d 131, petition for discretionary review refused. Automobiles
357(13); Automobiles 357(13); Automobiles 357(13)

Testimony that defendant stated, after he shot victim, "It was an accident," did
not warrant charge on absence of voluntary conduct, in murder prosecution; term
"it" could have meant that defendant intentionally fired revolver but did not
intend to hit victim, that he intended to hit victim but did not intend to kill
her, or that act of firing revolver was unintentional, fact remained that
intentional pointing of revolver at victim was a voluntary act and that resulting
death was imputable to defendant, who carried revolver concealed on his person,
drew revolver, pointed revolver at victim from distance of two to three inches,
and shot victim in face, and there was no evidence of scuffle, victim striking
defendant or revolver, or any other movement not willed by defendant. Joiner v.
State (Cr.App. 1987) 727 S.W.2d 534. Homicide 1492
Evidence in murder prosecution arising when defendant's husband was shot while
defendant and her husband were allegedly wrestling over gun did not require
submission of charge respecting voluntariness of defendant's conduct. Richardson
v. State (App. 2 Dist. 1991) 816 S.W.2d 849, appeal after new trial 906 S.W.2d
646, petition for discretionary review refused. Homicide 1492

Instruction on voluntariness was not necessary in homicide prosecution arising

from shooting death of defendant's wife; although defendant testified that wife
yelled his name with sense of great urgency before gun went off, he gave no
testimony about any act on her part that might have caused gun to discharge, and
admitted that his conduct caused her death. Vollbaum v. State (App. 10 Dist. 1992)
833 S.W.2d 652, petition for discretionary review refused. Homicide 1387

For purposes of voluntary conduct, only if evidence raises reasonable doubt that
defendant voluntarily engaged in conduct charged should jury be instructed to
acquit. McFarland v. State (Cr.App. 1996) 928 S.W.2d 482, rehearing denied,
certiorari denied 117 S.Ct. 966, 519 U.S. 1119, 136 L.Ed.2d 851, habeas corpus
denied 163 S.W.3d 743. Criminal Law 753.2(6)

14. ---- Shooting, instructions

Defendant was not entitled to requested charge on voluntariness of his conduct,

where defendant admitted to obtaining shotgun, loading it with purported intent to
fire it, jogging down dark street with his finger on trigger, and discharging
weapon, and fact that shotgun "just went off" did not render act involuntary so as
to require charge thereon; defendant voluntarily engaged in conduct up to very
second he claimed the shotgun "just went off." Pimentel v. State (App. 4 Dist.
1986) 710 S.W.2d 764, petition for discretionary review refused. Homicide 1492

Defendant was not entitled to requested instruction on involuntary conduct;

although he claimed that shooting was unintentional, he intentionally pointed gun
at victim. Conroy v. State (App. 1 Dist. 1992) 843 S.W.2d 67, petition for
discretionary review refused. Homicide 1492

Defendant was not entitled to jury instruction regarding the voluntariness of

defendant's conduct in murder prosecution, where defendant testified that he was
not in the car at the time of the shooting and never possessed a pistol. Henry v.
State (App. 7 Dist. 2003) 2003 WL 194724, Unreported, petition for discretionary
review refused. Homicide 1492

Murder defendant was not entitled to jury instruction on legal requirement of

voluntary conduct; although defendant contended he did not intend to shoot victim
during robbery and that he and victim struggled over gun immediately prior to
shooting, defendant created situation that led to shooting by voluntarily entering
victim's van, demanding money, and pointing gun at victim. Mims v. State (App. 12
Dist. 2004) 2004 WL 949453, Unreported, petition for discretionary review refused.
Homicide 1492

15. Expert testimony

Proffered testimony of defense expert, explaining defendant's shooting of wife as

reflex response due to weapons training as peace officer, was not relevant to
issue of voluntariness of defendant's actions when, perceiving danger from his
wife's actions, he picked up gun, aimed it at her, and fired a number of rounds;
defendant had not testified that the gun accidentally discharged, or that he
tripped and fell and the gun discharged, or that someone held his arm and forced
him to squeeze trigger. Avila v. State (App. 8 Dist. 1997) 954 S.W.2d 830,
rehearing overruled, petition for discretionary review refused. Criminal Law
474.1

16. Review

In light of defendant's failure to request any jury charge instruction on

"voluntary conduct," the Court of Appeals erred in applying the Almanza "some
harm" standard of review. Rogers v. State (Cr.App. 2003) 105 S.W.3d 630, on remand
2004 WL 2804855. Criminal Law 1038.1(4)

V. T. C. A., Penal Code � 6.01, TX PENAL � 6.01

Current through the end of the 2006 3rd Called Session of the 79th Legislature.

� 2006 Thomson/West
END OF DOCUMENT

(C) 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.