We find that: 1) the defensive theories contemplated by the terms "accident" and "involuntary act" are not the same; 2) the trial judge could not be expected to divine that counsel actually wanted an instruction on voluntary conduct when he requested an "accident instruction;" and, therefore, 3) the court of appeals incorrectly applied the Almanza "some harm" standard of review. Accordingly, we reverse the court of appeals and remand the case for further proceedings.I.

Appellant and his estranged wife, Debra Rogers, had a rocky relationship. Approximately a year before Debra's death, the couple separated, and appellant stayed with his sister, while Debra moved in with her mother. Although they were living apart, appellant and his wife continued to see each other regularly. They often argued when they were together. Appellant testified and admitted that he shot his wife, but stated that the shooting was "an accident" that happened during a struggle over the gun.

Appellant testified that Debra called him that afternoon, saying that she was depressed and wanted to talk to him. Debra picked appellant up, they stopped to buy beer and a few groceries, and they ended up at Debra's mother's house around 3 p.m. Appellant made dinner for the three of them. Afterwards, appellant and Debra went to her room to watch television. Debra watched from her bed, while appellant lay on a pallet on the floor.

The couple began to argue over appellant's relationship with his first wife. Debra accused him of renewing that relationship, which appellant denied. Appellant testified that he asked Debra to take him home and he went outside, but Debra did not follow. After smoking a cigarette, Appellant returned to the bedroom where Debra was still sitting on her bed. Appellant lay down again on the pallet and they both fell asleep for a little while.

After they woke up, they began to argue again. According to appellant, Debra reached under the foot of the bed for her gun, saying that she "was going to pop" him. Appellant stated that Debra "reached for the gun and I reached for it and got it and she grabbed my arm and it went off." When asked by defense counsel:

Q. Did you mean to kill [your wife]?

A. No. I - I mean if I did, I would be man enough to tell.

Q. Did you mean to pull the trigger?

A. I didn't mean to pull the trigger. It was just, you know, after she reached[,] hit my arm and I was already getting up from the bed, it went off.

Q. You got the gun and you were getting up. You were getting up from the pallet?

A. And it went off.

Q. Did she - she hit your arm?

A. Yes. She was grabbing my arm like that. ⁽⁴⁾

The prosecutor then cross-examined appellant:

Q. You grabbed the gun?

A. After she bent over for it, yes.

Q. How did you grab the gun?

A. I just picked it up normal, just like that.

Q. Did you put your hand on that trigger?

A. It was on the trigger.

Q. Did you use both hands?

A. I didn't use both hands, I don't think.

Q. But you sure got hold [sic] of that gun?

A. Yes. I was trying to get it to keep her from getting it.

Q. Why - at that point when you have that gun in your hand why didn't you just bring your arm down just like this and turn and walk around?

A. When I was coming up with the gun like that she hit my wrist. I was like - she was grabbing my wrist.

Q. Sir, did you cock that gun?

A. No, I didn't.

Q. You didn't cock the gun?

A. No.

Q. You actually had to make an effort and pull that trigger; is that right? ⁽⁵⁾

A. It seemed like when she grabbed my wrist, yes, to keep her getting it.

Q. How did she grab your wrist?

A. Did like that, gun went off. ...

Q. Let me back up a little bit, sir. She was sitting up?

A. She was.

Q. She grabbed your arm?

A. She hit my arm as I was coming out from under the bed with the gun. I didn't know how I had the gun. I was just trying to get it and it went off.

After seeing that Debra had been shot in the forehead, appellant called 911 to say that "someone had been shot," then he put the gun in his pocket and drove off in Debra's car. He soon stopped, went up to a neighbor's house and told them "I just shot my wife." He then went to another friend's house, told him he had shot his wife, wanted to leave town, and asked the friend to hide Debra's gun for him. When the friend refused to hide the gun, appellant dumped it in the trash behind the friend's mobile home. Appellant then drove 150 miles to his brother's home and told his brother that he had shot Debra. He did not tell any of these people that the shooting was "an accident."

In rebuttal, the State called Deputy David Utsey, to whom appellant had later surrendered himself in Freestone County and to whom he had given a written statement. That statement included the following:

On February - on Friday, June 18^th, 1999, [Debra] called me at our house at 3121 Palo Alto. She was crying, saying she was depressed. She come over and picked me up and then we went back to her mother's place.

After talking with her she cheered up. She laid down and took a nap. One of her friends come by to see her. The friend looked in on her and she was still asleep. I took her friend Teresa home.

When I got back my wife was on the porch of her mother's house. She looked angry and tired. She asked me to go get a beer. I went and got a beer and came back. I fixed her and her mother something to eat. She started fussing and arguing that I was sleeping with my ex-wife Mary Ann Robinson.

One thing led to another. I asked her to take me home. She said she was full. I know that she had been drinking a good bit. She told me that she was going to pop me. By this I knew that she was going to shoot me. She has pulled a gun several times in the past.

She was on her way to the bedroom. I knew that she had it in there because she was walking fast. I went into the bedroom and found her reaching under the bed. She pulled a pistol out from under the bed and I grabbed it from her. As soon as I got the gun, I shot her. She fell on the bed.

Immediately after Deputy Utsey's testimony, both sides rested, and the trial judge asked defense counsel whether she had any objections to the charge. Defense counsel replied:

Counsel: We have no objection. We will ask for an instruction on accident and we will ask for reasonable doubt on the extraneous offenses.

The Court: Your request for a charge on accident is denied. Your request for a charge regarding the definition of reasonable doubt is denied due to the fact that the instructions go to the convictions of the defendant and not the extraneous offenses per se.

Counsel: Thank you, Your Honor.

On appeal, appellant contended that the trial court erred in denying his request for a jury instruction on "the defense of voluntariness or accident." In a parenthetical, counsel argued that

[a]lthough the defense attorney used the word 'accident,' as opposed to 'voluntariness,' it is readily apparent that the trial court was aware of the objection voiced to the charge. In this context, 'voluntary' is essentially the antonym of 'accident.'"

The court of appeals stated that:

While the defense of accident is no longer present in the penal code, the Court of Criminal Appeals has long held that homicide that is not the result of voluntary conduct is not to be criminally punished. The defense of "accident" is encompassed within the penal code's general culpability requirements. ... A defendant is entitled to a charge on the voluntariness of his acts when warranted by the evidence, whether the evidence is strong, feeble, unimpeached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief. The defendant's testimony alone may be sufficient to raise a defensive theory requiring a charge. To be entitled to the charge, there must be evidence of an independent event such as the conduct of a third party that could have precipitated the incident. ⁽⁶⁾

The court of appeals then concluded that appellant's testimony "raise[d] the issue of whether appellant voluntarily shot Debra or whether Debra's own conduct precipitated the incident" and that the trial court erred in not giving the requested jury instruction. ⁽⁷⁾ Finding that appellant had timely objected to the charge error, the court of appeals then conducted a harm analysis under Almanza's "some harm" standard: ⁽⁸⁾

Here, if the jury had been charged on the issue of voluntariness and found appellant did not shoot his wife voluntarily, he would have been entitled to acquittal. Thus, we conclude the charge error in this case resulted in some harm to appellant. ⁽⁹⁾

Using this standard, the court of appeals sustained appellant's point of error, reversed his murder conviction, and remanded the case for a new trial.

II.

The State's argument in this Court breaks down into multiple parts:

1) The court of appeals erroneously equated appellant's request for an "accident" instruction with a request for a "voluntary act" instruction;

2) Appellant's request for an "accident" instruction, without more, was insufficient to alert the trial judge that appellant actually wanted an instruction on "voluntary act";

3) Therefore, his request did not preserve the alleged error for review;

4) Even if the trial judge subjectively understood that appellant wanted an instruction on voluntary conduct, he did not err by refusing the request because the evidence at trial did not raise that issue; ⁽¹⁰⁾ and

5) Even if the court of appeals correctly found that there was error in the jury charge, appellant's failure to object means that the proper standard for harm analysis was not "some harm," but whether appellant suffered "egregious harm."

We consider the State's contentions in that order.

A. A request for an "accident" instruction is not the equivalent of a request for an instruction concerning "a voluntary act."

The first issue, whether the absence of any voluntary conduct and the claim of "accident" are interchangeable, arises from a 1975 change in the Texas Penal Code. The former penal code provided for a "defense of accident," ⁽¹¹⁾ which was properly applied in cases in which the defendant alleged that his act was not "intentional." ⁽¹²⁾ In Williams v. State, this Court explained that, regarding this former defense,

It must be recognized that the term "intentional" had a much different meaning in the law of accident under the former penal code than it now has in the law of culpable mental states under the present penal code. In the former law of accident, the term "intentional" meant something like "voluntary." Therefore, the correct meaning of the former term "accident" was that the actor did not voluntarily engage in conduct. But, "accident" was also used under the former penal code to describe a hodgepodge of defenses, including the absence of a culpable mental state, conduct which was voluntary but that differed from the intended conduct, mistake of fact, and an unexpected result. It is understandable that the drafters of the present penal code rejected a term which had so many meanings in law, as well as in popular usage, that it served to confuse issues rather than to clarify them. ⁽¹³⁾

Thus, under the former penal code, "intentional" could refer to either the conscious physical commission of the bad act (the actus reus) or the mental state (the mens rea) with which the defendant committed that act. Conduct could therefore be described as "accidental" when the defendant claimed not to have committed any voluntary act which resulted in the harm, ⁽¹⁴⁾ or when the defendant performed volitional acts, but argued that he acted without intent to cause the harm or result. ⁽¹⁵⁾

Under the current penal code, however, there is no "defense of accident." ⁽¹⁶⁾ Now, the no-voluntary-conduct aspect of that former defense is addressed by Penal Code Section 6.01(a), which provides that "a person commits an offense only if he voluntarily engages in conduct." ⁽¹⁷⁾ Section 6.02(a), in turn, addresses the claim that the defendant lacked the required mental state. ⁽¹⁸⁾

In Williams, this Court expressly recommended that practitioners not use the term "accident":

There is no law and defense of accident in the present penal code, and the bench and bar would be well advised to avoid the term "accident" in connection with offenses defined by the present penal code. ⁽¹⁹⁾

Our present Section 6.01(a) was modeled after the corresponding Model Penal Code provision ⁽²⁰⁾ and its commentary distinguishes "voluntary" conduct from "accidental or unintended" results. Voluntary conduct "focuses upon conduct that is within the control of the actor. There is sufficient difference between ordinary, human activity and a reflex or a convulsion to make it desirable that they be distinguished for purposes of criminal responsibility by a term like 'voluntary.'" ⁽²¹⁾ Thus, before criminal responsibility may be imposed, the actor's conduct must "include[] either a voluntary act or an omission when the defendant was capable of action." ⁽²²⁾ The operative word under Section 6.01(a), for present purposes, is "include." Both the Model Penal Code comments and the Practice Commentary to the 1974 Texas Penal Code stress that the "voluntary act" requirement does not necessarily go to the ultimate act (e.g., pulling the trigger), but only that criminal responsibility for the harm must "include an act" that is voluntary (e.g., pulling the gun, pointing the gun, or cocking the hammer). ⁽²³⁾

This Court has repeatedly discussed the meaning of "accident" and "voluntary conduct" to distinguish the two defensive theories. ⁽²⁴⁾ For example, in Adanandus v. State, we stated that:

"conduct [is not] rendered involuntary merely because an accused does not intend the result of his conduct." Therefore, the issue of the voluntariness of one's conduct, or bodily movements, is separate from the issue of one's mental state. ... The fact that appellant did not initially intend to engage in a struggle with a customer does not render his conduct in doing so involuntary or any of his bodily movements during that encounter involuntary. ... Even if, as appellant contend, the gun "went off" as he was stumbling backwards, there is no evidence that the gun fired on its own volition. ⁽²⁵⁾

"Voluntariness," within the meaning of Section 6.01(a), refers only to one's own physical body movements. ⁽²⁶⁾ 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. ⁽²⁷⁾ The word "accident," however, is a word of many meanings which covers a wide spectrum of possibilities. It generally means "a happening that is not expected, foreseen, or intended." ⁽²⁸⁾ Its synonyms include "chance, mishap, mischance, and misfortune." ⁽²⁹⁾ It includes, but certainly is not limited to, unintended bodily movements. But at least since this Court's decision in Williams, the word "accident" has not been used to refer to an "involuntary act" under Section 6.01(a).

Thus, for purposes of section 6.01(a), an "accident" is not the same as, and should not be treated as the equivalent of, the absence of any voluntary act. ⁽³⁰⁾ The court of appeals apparently accepted, at face value, appellant's contention that a claim of "accident" and a claim of no voluntary conduct are the same. ⁽³¹⁾ We again reject this view and hold that the word "voluntary" does not refer to the same defensive theory as the word "accident" and that therefore, the court of appeals erred when it implicitly equated the two.

B. Appellant's request for an "accident" instruction was insufficient to alert the trial judge that he wanted an instruction on "voluntary act."

We agree with the State's second contention, that even if appellant subjectively intended to ask for an instruction on voluntary conduct, the mere request for an instruction on "accident," without more, was not sufficient to alert the trial judge that he wanted an instruction on voluntary conduct. ⁽³²⁾ In the context of all the evidence at trial, we find that appellant's request was fatally ambiguous.

A defendant is entitled, upon a timely request, to an instruction on any defensive issue raised by the evidence, provided that: 1) the defendant timely requests an instruction on that specific theory; and 2) the evidence raises that issue. ⁽³³⁾ To preserve possible error for appellate review, the defendant must sufficiently identify the defensive theory for which he seeks an instruction. ⁽³⁴⁾ But a request for an instruction on "accident" is no request at all. ⁽³⁵⁾ As discussed above, there is no longer any such defensive "accident" theory which requires a jury instruction. Here, not only did appellant 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.

It is not at all evident from the record that the trial judge understood that appellant really wanted an instruction on voluntary conduct. In fact, the record suggests that the trial judge reasonably assumed that appellant wanted an instruction on the lack of the required intent. Immediately before the State began its cross examination of appellant, the trial judge ruled that the State could offer extraneous offense evidence "to rebut the defensive theory of self-defense and to rebut the defensive theory of accident" (i.e., lack of intent to harm). Moreover, the evidence at trial was not such that it necessarily would have put the trial judge on notice that appellant wanted an instruction on voluntary conduct. A statement that a defendant did not intend to pull the trigger "cannot be plucked out of the record and examined in a vacuum." ⁽³⁶⁾ If appellant wanted jury instructions on what are generally inconsistent defensive theories, ⁽³⁷⁾ then it was incumbent upon him to tell the trial court exactly he wanted.

A defendant's testimony alone may be sufficient to raise a defensive theory, ⁽³⁸⁾ but appellant's testimony did not unambiguously develop the theory that he was the passive instrument of another's act, i.e., that, somehow, his finger had been made to exert the requisite fourteen-and-a-half to sixteen pounds of force to squeeze the trigger and fire the gun. ⁽³⁹⁾ Given the fatal ambiguity of appellant's request for an "accident" instruction and absent any attempt by counsel to clarify the issue for the trial judge, we cannot find that the trial judge erred in denying appellant's request.

Because we find that appellant did not request any jury charge instruction on "voluntary conduct" under Penal Code Section 6.01, the court of appeals erred in applying the Almanza "some harm" standard of review. We therefore reverse the court of appeals and remand the case for further proceedings consistent with this opinion.

Cochran, J.

Delivered: May 21, 2003

Publish

1. State v. Rogers, No. 05-00-00726-CR (Tex. App.- Dallas May 31, 2001)(not designated for publication).