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 "(b) Conduct constituting an offense under existing law that is repealed by this Act and that does not constitute an offense under this Act may not be prosecuted after the effective date [Sept. 1, 1975] of this Act.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laws repealed by this Act and that does not constitute an offense under this Act, the action is dismissed on the effective date of this Act. However, a conviction existing on the effective date of this Act for conduct constituting an offense under laws repealed by this Act is valid and unaffected by this Act.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.