explaining that “in the nature of a ‘confession and avoidance’ defense [] [e]ven if the State proves all elements of the offense beyond a reasonable doubt, the State may not punish the defendant who meets the burden of proof on an affirmative defense because commission of the offense was 25 justified”
How later courts described this case
- explaining that “in the nature of a ‘confession and avoidance’ defense [] [e]ven if the State proves all elements of the offense beyond a reasonable doubt, the State may not punish the defendant who meets the burden of proof on an affirmative defense because commission of the offense was 25 justified”
- noting that the rationale of duress is that even though the accused has done the act required and had the mental state required, the conduct is justified because he has avoided harm of a greater magnitude
- holding that the term “voluntarily” as utilized in PENAL § 6.01(a) means the absence of an accidental act, omission or possession
- stating that a constitutional right to confrontation does not exist in a discretionary transfer hearing
Written by the judges who cited it.
The opinion
CLINTON, Judge,
concurring.
But for its retrogressive treatment of “voluntarily engaging] in conduct” vis a vis “an accidental act,” I would be satisfied to join the majority. See opinion, at 622, 623 and 624. As it is, I merely concur in the judgment.
Under former penal codes, circumstances which excused or extenuated an offense included any “act done by accident ” except in cases “where there has been a degree of carelessness or negligence which the law regards as criminal.” Article 39, P.C. 1925. 1
Now, however, “[tjhere 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.” Williams v. State, 630 S.W.2d 640, at 644 (Tex.Cr.App.1982) (opinion on rehearing); see George v. State, 681 S.W.2d 43, at 45 (Tex.Cr.App.1984) (Williams, supra, “instructive on the matter of Voluntariness’ ”).
Under § 6.01(a) person commits a prescribed offense “only if he voluntarily engages in conduct.” Contrary to notion advanced by the majority, opinion at 622, the term “voluntarily” was not intended or designed to be the “converse” of “accidentally.” The fact that the Legislature did not include verbatim the 1970 proposed code definition, id., at 623, n. 6, hardly means ipso facto that legislators disapproved of “this elementary rule requiring a voluntary act or omission as predicate for criminal responsibility.” Practice Commentary following § 6.01. We must not resort solely to dictionary definitions of “voluntarily,” but consider the meaning contemplated by legislators of the full context in which the word is used. Manifestly they understood and appreciated that for purposes of conditioning criminal liability one first “voluntarily engages in conduct” et cet-era as the latter and related terms are defined elsewhere. See, e.g., George v. State, supra. 2
“Voluntarily” modifies the verb “engages” and thus prescribes the requisite conscious manner of making a bodily movement with an accompanying mental state. See Dockery v. State, 542 S.W.2d 644, at 649-650 (Tex.Cr.App.1976) (opinion on rehearing) (actions sufficiently voluntary to establish offense where culpable mental state also shown). Its true “converse” would seem to be “involuntarily,” 1.e., an unconscious bodily movement through convulsion, reflex or other sensual phenomenon.
“Accidentally,” on the other hand, connotes the manner of an event arising from extrinsic causes, a happening by chance, usually with unfortunate consequences. It encompasses all sorts of unexpected occurrences that may not involve a bodily movement at all.
To hold as the majority does, “that the term ‘voluntarily 1 as utilized in section 6.01(a) means the absence of an accidental act,” slip opinion, at 6, is to announce a vacuous definition rife with ambiguity, such that reasonable judges and jurors must guess at its intendment. We were correct to advise the bench and bar to avoid the term “accident” when *626 meaning the “converse” of “voluntarily engaging] in conduct.”
Accordingly, I concur only in the judgment.
. Compare Dickenson v. State, 24 Tex.App. 45 , 5 S.W. 648 (1887) (where horse accused riding became unmanageable beyond his control, ran against and upset buggy causing injuries to occupants, the latter was act done by accident without requisite degree of carelessness or negligence to render criminal), with Flowers v. State, 150 Tex.Cr.R. 467 , 202 S.W.2d 462, at 463-464, 466 (1947) (where while driving under influence of intoxicating liquor accused drove into pedestrians on shoulder of highway, resultant death not excusable).
All emphasis here and throughout this opinion is mine unless otherwise indicated.
. Addressing § 6.01(a) in light of § 1.07(a)(1) and (8), the Court “construe[dj the provisions to mean that one voluntarily engages in conduct when the conduct includes, inter alia, a voluntary act and its accompanying mental state, if any. That such conduct also includes an involuntary act does not necessarily render that conduct involuntary. [note omitted].” George, supra, at 45 (emphasis in original).