Texas Stamp


PD-1101-19 03/11/2020

1. “Does a trial court’s sua sponte submission of an issue in the jury charge prevent a court of appeals from considering whether the evidence raised such an issue?”

2.  “If, under a defensive view of the evidence, the defendant in a murder case drew, pointed, and wrestled over the gun of his own volition, is he nonetheless entitled to a voluntary-act instruction if testimony shows that another person’s conduct precipitated the gun’s discharge?”

3. “Alternatively, should a voluntary-act instruction resemble the instruction in Simpkins v. State, 590 S.W.2d 129 (Tex. Crim. App. [Panel Op.] 1979), and specify the facts that would render the defendant’s conduct involuntary or inform the jury that voluntariness is distinct from the culpable mental state?”

4.  “Alternatively, does an instruction result in some harm to the defense if it lacks this specificity and is missing from lesser-included-offense instructions never reached by the jury?”

According to Hervey, he was being shorted in a marijuana deal when he pointed a loaded gun at the dealer’s neck and told him to get out of his car.  The dealer grabbed the gun, and the two struggled over it. Hervey testified that, during the scuffle, his finger slipped inside the trigger guard and the gun “went off.”  The dealer was shot a single time and died. Hervey was indicted for murder.

In its charge, the judge instructed the jury on the voluntary-act requirement by tracking Penal Code § 6.01(a). The judge rejected Hervey’s requests for a voluntary-act instruction that:

(1) required an acquittal if the jury believed the shooting was the result of an accidental discharge during a struggle over the gun (consistent with Simpkins),

(2) informed the jury that voluntariness is separate from culpable mental state, and 

(3) applied to the lesser-included offenses of manslaughter and criminally negligent homicide

The jury convicted Hervey of murder.

On appeal, the court of appeals agreed with Hervey that these three missing instructions were required and remanded for a new trial.

The State argues that Hervey was not entitled to a voluntary-act instruction in the first place and that the court of appeals erred in assuming it could not address entitlement. It contends that the voluntary-act requirement requires only that the defendant’s conduct include a voluntary act—not that every act up until the moment a gun is discharged must be voluntary. It contends that Hervey’s admission to drawing, pointing, and struggling over the loaded gun was enough. It argues there was even less evidence raising the issue as to the lessers. Alternatively, the State argues the instructions Hervey requested are improper comments on the weight of the evidence and that failure to include the instructions could not have harmed him.         

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