Jason Bennyhoff
An introduction to the issue of concurrent causation for prosecutors who have yet to encounter it
Say an intoxicated driver causes a collision that seriously injures or kills another person—it’s a tragedy all too common on our roads and all too familiar to those of us who prosecute intoxication assaults and intoxication manslaughters. This kind of case seems, at first glance, to be simple enough in terms of the intoxicated driver’s culpability—but what if the victim had been drinking too?1 What if the victim survives the crash, but his family decides to remove life support after doctors determine there is no realistic hope of recovery?2 Are these kinds of intervening acts truly detrimental to the State’s case? Are they what the law defines as “concurrent causes?” If so, what is a prosecutor to do about these issues?
Concurrent causation is an issue that is bound to arise in the life of any prosecutor who deals with intoxication offenses such as intoxication manslaughter and intoxication assault. This article is designed to provide an introduction to the issue of concurrent causation for the prosecutor who has yet to deal with this issue. Specifically, it will address the statutory basis for concurrent causation, the practical application of that term in caselaw, and the jury charge implications of raising the issue of concurrent causation.
The statute
Concurrent causation is defined in Texas Penal Code §6.04(a), which reads in relevant part:
A person is criminally responsible if the result would not have occurred but for his conduct, operating alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.
What is a concurrent cause?
“A concurrent cause is ‘another cause’ in addition to the actor’s conduct, ‘an agency in addition to the actor.’”3 The law does not require an actor’s conduct to be broken down into its component parts so that each could be a concurrent cause. For example, the driver’s exhaustion or difficulty seeing into the sun is not a concurrent cause in addition to his intoxication.4 Even in scenarios where acts or omissions of other persons were raised, they still do not raise the issue of concurrent causation if there is no evidence that they were clearly sufficient by themselves to cause the result, and the actor’s actions were clearly insufficient.5
A scenario where a defendant contends that the result was in no way caused by his action but was instead attributable entirely to some other cause also does not raise the issue of concurrent causation.6 To prove the defendant’s guilt of the charged offense, the State must prove a “but for” causal connection between the defendant’s conduct and the resulting harm.7 In the context of intoxication manslaughter and intoxication assault, this means the State must prove that the death of or injury to another person would not have occurred but for the defendant’s intoxication.8
To be entitled to an instruction on concurrent causation under Penal Code §6.04 in the jury charge, the evidence must raise the issue of concurrent causation.9 To raise the issue of concurrent causation, there must be some evidence that the concurrent cause was clearly sufficient by itself to produce the result and the actor’s conduct was clearly insufficient to cause the result.10 Questions propounded by counsel are not evidence sufficient to raise the issue of concurrent causation.11
A defendant successfully raising a concurrent causation issue and obtaining a jury instruction on it is not fatal to the State’s case. This is because even if a concurrent cause or causes exist, “two possible combinations exist to satisfy the ‘but for’ requirement: (1) the defendant’s conduct may be sufficient by itself to have caused the harm, regardless of the existence of a concurrent cause; or (2) the defendant’s conduct and the other cause together may be sufficient to have caused the harm.”12 This still allows the State to obtain a conviction even where a concurrent cause is shown and the defense obtains a jury charge on the issue. By contrast, if the concurrent cause “is clearly sufficient, by itself, to produce the result and the defendant’s conduct, by itself, is clearly insufficient, then the defendant cannot be convicted.”13
More resources
There are many resources available for prosecutors looking for more information on the issue of concurrent causation. Richard Alpert’s book, Intoxication Manslaughter, which is available from TDCAA at www.tdcaa.com/publications, has a thoughtful section on how to approach the causation issue in voir dire. There are also numerous practice guides and journal articles that provide useful outlines on the workings of concurrent causation law and summaries of cases on the issue.14 Model jury instructions can also be found, as can in-depth discussions on the applicability of concurrent causation to the jury charge.15
Other prosecutors are, of course, also great resources. Please feel free to contact me if I can be of any assistance.
Endnotes
1 See Hale v. State, 194 S.W.3d 39, 42-43 (Tex. App.—Texarkana 2006, no pet.) (discussing whether State’s evidence was legally sufficient in light of concurrent causation evidence that victims may have been drinking and their vehicles were either stopped or moving slowly in street when collision occurred).
2 See Quintanilla v. State, 292 S.W.3d 230, 234-35 (Tex. App.—Austin 2009, pet. ref’d) (discussing family’s decision to remove life support after victim sustained severe brain trauma in crash with intoxicated driver and concluding that removal of life support was at most a concurrent cause and not an alternative cause of death).
3 Robbins v. State, 717 S.W.2d 348, 351 n.2 (Tex. Crim. App. 1986).
4 Id.; McKinney v. State, 177 S.W.3d 186, 201-02 (Tex. App.—Houston [1st Dist.] 2005, aff’d on other grounds, 207 S.W.3d 366 (Tex. Crim. App. 2006).
5 See, e.g., Remsburg v. State, 219 S.W.3d 541, 545 (Tex. App.—Texarkana 2007, pet. ref’d) (no evidence that officer’s act of jumping into window of appellant’s car enough to cause his injuries where appellant drove into ditch with officer hanging out of window); Deboer v. State, No. 01-96-00492-CR, 1999 WL 660153 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (not designated for publication) (no evidence that emergency personnel’s slow pace in treating victim was sufficient to cause victim’s death and defendant’s actions clearly insufficient).
6 See Barnette v. State, 709 S.W.2d 650 (Tex. Crim. App. 1986).
7 Robbins, 717 S.W.2d at 351.
8 Id.; see Tex. Pen. Code §§49.07, 49.08.
9 Giddens v. State, 256 S.W.3d 426, 432 (Tex. App.—Waco 2008, pet. ref’d); Bell v. State, 169 S.W.3d 384, 394 (Tex. App.—Waco 2005, pet. ref’d); Hernandez v. State, No. 14-09-00753-CR, 2010 WL 5132567 (Tex. App.—Houston [14th Dist.] Dec. 14, 2010, pet. ref’d) (not designated for publication); see Hughes v. State, 897 S.W.2d 285, 297 (Tex. Crim. App. 1994). See also 1 Comm. On Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges, Defenses PJC §B1.8 (2010) (alternative causation or evidence that simply negates the State’s affirmative proof of the offense does not support a jury charge of any kind).
10 Bell, 169 S.W.3d at 395; Ramirez, 2010 WL 5132567 at *2; Remsburg, 219 S.W.3d 541.
11 Ramirez, 2010 WL 5132567 at *2, citing Kercho v. State, 948 S.W.2d 34, 37 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d).
12 Robbins, 717 S.W.2d at 351.
13 Id.
14 See, e.g., 8 Michael J. McCormick et. al., Texas Practice: Texas Criminal Forms and Trial Manual §§103.7, 103.8 (2015).
15 See Id. at §103.8; 1 Comm. On Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges, Defenses PJC §§B1.8-B1.8-8 (2010) (providing a lengthy discussion of concurrent causation law and jury charge practice including citations to cases on this issue).