New Service Rule Applicable to the State Prosecuting Attorney Per Misc. Docket No. 19-012
“In concluding that Piper’s trial counsel may have had a reasonable strategic reason for failing to request a voluntary-conduct charge instruction, the court of appeals reasoned that attorneys are under no duty to raise every defense available. But counsel did raise a voluntary-conduct defense—he just didn’t then ask for the corresponding charge instruction. In ignoring this, did the court of appeals so far depart from the accepted and usual course of judicial proceedings as to call for an exercise of this Court’s power of supervision?”
Piper shot a man at a body shop, Wilson, over a dispute about Piper’s car. He was indicted for murder. Piper testified that he and Wilson were complicit in an insurance scam, that he believed Wilson was defrauding him, and that he went with his brother to the shop to confront Wilson. Piper said he drew his gun on Wilson when things got heated but that things were under control when Piper’s brother grabbed his neck and shoulder, causing the gun to go off. Piper was convicted of manslaughter.
Piper alleged trial counsel was ineffective for pursuing the lesser of manslaughter but not an instruction on voluntariness under Tex. Penal Code § 6.01(a) (“A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession.”). The court of appeals noted that defense counsels are under no obligation to raise every available defense. In the absence of testimony from trial counsel, it could not conclude that this decision was not the result of sound trial strategy.
Piper argues that this is one of the rare cases in which ineffective assistance can be found on direct appeal because the record shows counsel effectively pursued a voluntary-conduct defense but failed to request the instruction that would have given it teeth. Moreover, he chose manslaughter instead; Piper argues that this lesser was unsupported by the evidence because he was either guilty of murder or not guilty of any criminal homicide due to involuntary conduct.