NO. 07-02-0021-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JANUARY 29, 2003
______________________________
CEDRIC JEROME HENRY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE CRIMINAL DISTRICT COURT OF JEFFERSON COUNTY;
NO. 82275; HONORABLE CHARLES D. CARVER, JUDGE
_______________________________
Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
MEMORANDUM OPINION 1
Upon a plea of not guilty, appellant Cedric Jerome Henry was convicted by a jury of
murder and punishment was assessed at life imprisonment and a $10,000 fine. By a single
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T EX. R. A PP . P. 47.1.
point of error, he claims the trial court erred in failing to properly charge the jury on the law
of accident. Based upon the rationale expressed herein, we affirm .
Appellant was a passenger in a borrowed vehicle in Beaumont, Texas when he shot
the victim after a confrontation about money. The vehicle was found abandoned a short
time later with a bullet hole in the window through which the victim had been shot. An
empty cigar pack with appellant’s fingerprints was recovered from the vehicle. Appellant
was positively identified as the shooter by a witness to the incident. In addition, he was
identified as the shooter by his co-defendant, the driver of the vehicle. The State called two
other witnesses who testified appellant made admissions to them about the shooting.
W hen he took the stand in his own defense, he explained he had been in the car earlier in
the day, but denied being at the scene, possessing a gun, or ever shooting anyone.
By his single point of error, appellant asserts the trial court erred in failing to properly
charge the jury on the law of accident because one witness testified appellant told her after
the murder that “the car jerked and the gun went off.” He argues this presented the court
with some evidence of accident and, therefore, he was entitled to a jury charge on the law
of accident. W e disagree. Our review of a charge error claim is governed on appeal by
the two step approach announced in Almanza v. State, 686 S.W .2d 157 (Tex.Cr.App.1985)
(op'n on reh'g). First, an appellate court must determ ine whether error exists in the jury
charge. Hutch v. State, 922 S.W .2d 166, 170 (Tex.Cr.App. 1996) (en banc). Second, the
appellate court must determine whether sufficient harm was caused by the error to require
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reversal. Id. at 170-71 (citing Arline v. State, 721 S.W .2d 348, 351 (Tex.Cr.App. 1986).
Unpreserved error requires egregious harm to warrant reversal, whereas for preserved
error, any harm will suffice. Id. W hen conducting a harm analysis the reviewing court m ay
consider the following four factors: 1) the charge itself; 2) the state of the evidence including
contested issues and the weight of the probative evidence; 3) arguments of counsel; and
4) any other relevant information revealed by the record of the trial as a whole. Id.
Appellant requested the jury be charged on the law of accident, which was denied
by the trial court. W ithout citing or referencing any authority, appellant contends that the
trial court erred in declining to submit an instruction that
Our law provides no act done by accident is an offense. Therefore, if
you believe that the defendant committed the act alleged but you further
believe that such act was caused by accident, or if you have a reasonable
doubt thereof, you shall find the defendant not guilty.
The current penal code does not recognize the defense of accident. However, the former
defense is now within the requirement of section 6.01(a), that "a person comm its an offense
only if he voluntarily engages in conduct, including an act, an om ission, or possession."
T EX. P EN . C ODE A NN. § 6.01 (Vernon 1994); W illiams v. State, 630 S.W .2d 640, 644
(Tex.Cr.App.1982). Because there is no defense of accident in the present penal code, the
trial court did not err in declining to submit the instruction.
Moreover, appellant argues that because one witness testified he told her after the
murder that “the car jerked and the gun went off” that such evidence raised the issue of
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voluntariness, and he was therefore entitled to the requested instruction. However,
although Brown v. State, 955 S.W .2d 276, 279 (Tex.Cr.App. 1997), held that defendant
was entitled to an instruction regarding an involuntary act, unlike appellant’s testimony here,
the defendant testified at trial that the handgun in his possession accidentally discharged
after he was bumped from behind and his testimony was corroborated by another witness.
Also, in Butler v. State, 981 S.W .2d 849, 856 (Tex.App.--Houston, [1 st Dist.] 1998, pet.
ref’d), the court held that the trial court should have submitted an instruction on the
voluntariness of appellant’s conduct; however, there too, the defendant testified that the
shotgun fired during a struggle for possession of the shotgun. Further, conduct is not
rendered involuntary merely because an accused does not intend the result of his conduct.
George v. State, 681 S.W .2d 43, 45 (Tex.Cr.App. 1984). These cases do not authorize an
instruction as to voluntariness where, as here, appellant testified that he was not in the car
at the time of the shooting and never possessed a pistol which was contrary to the
testimony of his co-defendant. See also Joiner v. State, 727 S.W .2d 534, 537 (Tex.Cr.App.
1987) (holding that testim ony that the defendant stated "it was an accident" after he shot
the victim did not raise the issue of the voluntariness of his conduct.) Appellant’s sole point
of error is overruled.
Accordingly, the judgm ent of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
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