Garcia v. State , 1980 Tex. Crim. App. LEXIS 1277 ( 1980 )

OPINION

ODOM, Judge.

This is an appeal from a conviction for murder, wherein punishment was assessed at ten years.

Appellant contends the trial court erred in refusing his “requested special instruction to the jury relating to the defense of accident.” We agree and reverse.

Testifying in his own behalf, appellant related that the deceased gave him the gun as they were walking on the sidewalk and that the hammer was already pulled. When appellant told the deceased that he was going to throw the gun into the canal, the deceased suddenly grabbed appellant’s right elbow with one hand and the gun with his other hand in an attempt to take the gun away from appellant. Appellant testified:

“Q. Okay. Now, at what point did the gun go off?

“A. When he pulled on the gun, tried to get it out of my hand.

“Q. Okay. Did you have any intention or knowledge or any state of mind at all of the sort that would make you desire to harm Hector Jaimes (the deceased) in any way?

“A. No, sir.”

In Dockery v. State, 542 S.W.2d 644 (Tex. Cr.App.), this Court wrote concerning the issue of accidental homicide:

“It is clear, ... that a homicide may still be accidental under our new Penal Code.

“Section 6.01(a) of our new Code provides:

“ ‘A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession, in violation of a statute that provides that the conduct is an offense.’ V.T.C.A., Penal Code, Sec. 6.01(a).

“By enacting this section the Legislature intended to assure that persons not be criminally punished for acts, omissions, and possessions not done voluntarily. Therefore, if a homicide is not the result of voluntary conduct, it cannot be criminally punished.”

The testimony summarized and quoted above was sufficient to raise an issue of fact as to the voluntariness of appellant’s conduct. It is settled that an accused is entitled to an instruction on every defensive matter raised by the evidence. Esparza v. State, 520 S.W.2d 891 (Tex.Cr.App.). The testimony of the defendant alone is sufficient to raise the issue. London v. State, 547 S.W.2d 27 (Tex.Cr.App.). The failure to grant the timely filed and properly requested special instruction on accident constituted reversible error.

The judgment is reversed and the cause remanded.

Before the court en banc.