Donnie Diamond Rodgers v. State ( 2004 )

 Opinion issued October 21, 2004

  In The

Court of Appeals

For The

First District of Texas

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  NO. 01-03-00850-CR

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DONNIE DIAMOND RODGERS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 895549

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MEMORANDUM OPINION

          Appellant, Donnie Diamond Rodgers, pleaded not guilty to the offense of murder. A jury found appellant guilty of the lesser included offense of manslaughter and assessed punishment at 15 years in prison. In one point of error, appellant complains that the trial court erred by denying his request for a jury instruction on voluntary conduct. We affirm.  

BACKGROUND

          On November 24, 2001, appellant was admitted to Memorial Herman Hospital after his jaw was broken by the complainant, Ben Cooper. Appellant’s jaw was wired shut. On December 3, 2001, approximately one week after Cooper broke appellant’s jaw, appellant saw Cooper and Kemuel Fosdick in the parking lot of the Knight’s Landing Apartments. Cooper and Fosdick were attempting to repair the automatic windows on a car. Appellant got a pistol from his apartment, approached the car, and shot Cooper in the back of his head, killing him.

          Appellant testified that he had armed himself with a pistol before approaching Cooper and Fosdick because he believed that Cooper might be armed. Appellant stated that he drew his pistol only after Cooper tried to punch his broken jaw and that the pistol just “went off” without his pulling the trigger or intending to shoot Cooper. Under cross-examination, appellant admitted that Cooper was shot in the back of his head while his back was to appellant. Fosdick testified that Cooper had his back to appellant when appellant, without warning or provocation, shot Cooper in the back of the head. Under cross-examination, Fosdick stated that he did not recall having previously said that Cooper had “grabbed at the gun.” The medical examiner, who preformed the autopsy on Cooper’s body, found that the bullet entered the back of Cooper’s neck and exited through his forehead.

          For impeachment purposes, appellant called Houston Police Sergeant Boyd Smith (“Officer Smith”) to testify about prior inconsistent statements made by Fosdick. Appellant’s counsel had Officer Smith read aloud the following from a written statement Fosdick had signed on the day of the incident: “When Ben saw that Donnie was pointing a gun at him, he reached out and grabbed at the gun.” Fosdick’s written statement was not offered into evidence, and it is not part of the record on appeal; however, Officer Smith did verify that the sentence he read was a verbatim oral statement that Fosdick had made to him.

          Appellant sought a jury instruction on voluntary conduct and read into the record the following requested instruction:

          You are instructed that a person commits an offense only if he voluntarily engages in conduct, including an act, omission or possession. A person does not commit an offense unless he intentionally and knowingly engages in conduct as the definition of the offense requires. Conduct is not rendered involuntary merely because a person did not intend the results of his conduct.

          Now, if you believe from the evidence beyond a reasonable doubt that on the occasion in question, the defendant did cause the death of Ben Cooper by shooting Ben Cooper with a deadly weapon; namely, a firearm, but you further believe from the evidence or you have reasonable doubt thereof that the shooting was a result of an accidental discharge of the firearm and not a voluntary act or conduct of the defendant, you will acquit the defendant and say by your verdict: Not guilty.

The trial court denied the requested instruction.

DISCUSSION

                              Appellant asserts that the trial court erred in denying his requested jury instruction on voluntary conduct. Appellant argues that the issue of voluntariness was raised through his own testimony about how his pistol unintentionally “went off” and the testimony of Officer Smith about Fosdick’s prior statement that, at some point, Cooper “reached out and grabbed at the gun.”

                              A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession. Tex. Pen. Code Ann. § 6.01(a) (Vernon 2003). Voluntariness, within the meaning of section 6.01(a), refers only to one’s physical bodily movements. Alford v. State, 866 S.W.2d 619, 624 (Tex. Crim. App. 1993). Conduct is not rendered involuntary merely because the defendant does not intend the result of his conduct. George v. State, 681 S.W.2d 43, 45 (Tex. Crim. App. 1984). Any evidence raised and admitted at trial—regardless of its substantive character—that raises a defensive theory to the charged offense, requires a jury charge thereon. Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997). However, when a defendant’s conduct includes a bodily movement sufficient to discharge a bullet, unless there is more, such as precipitation by another individual, “a jury need not be charged on the matter of whether the accused voluntarily engaged in the conduct with which he is charged.” Id. (citing George v. State, 681 S.W.2d 43, 47 (Tex. Crim. App. 1984)).

                              Appellant’s bare assertion that the firing of the pistol was accidental does not raise the issue of voluntariness. An accused’s testimony that a weapon “accidentally went off” or that he “didn’t intend to shoot but that it was an accident,” does not raise the issue of the voluntariness of his conduct. Gerber v. State, 845 S.W.2d 460, 467 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d); see also Joiner v. State, 727 S.W.2d 534, 536 (Tex. Crim. App. 1987) (holding that request for instruction on voluntariness was properly denied because bare assertions of lack of intent and accidental discharge do not raise issue of absence of voluntary conduct).

                              To be entitled to an instruction on involuntary conduct there must be “evidence of an independent event, such as the conduct of a third party, which could have precipitated the discharge of the bullet.” Brown v. State, 906 S.W.2d 565, 568 (Tex. App.—Houston [14th Dist.] 1995), aff’d, 955 S.W.2d 276 (Tex. Crim. App. 1997). The statement Officer Smith testified to does not raise the issue of voluntariness because the statement is not evidence that any action by Cooper could have precipitated the firing of appellant’s pistol. There is no evidence that Cooper ever touched the pistol or caused it to fire.

                              We hold that the trial court did not err in denying appellant’s request for an instruction on voluntary conduct. We overrule appellant’s sole point of error.

                                                                         CONCLUSION

                              We affirm the judgment of the trial court. 

                                                                                  Sam Nuchia

                                                                                  Justice

Panel consists of Justices Nuchia, Higley, and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).