Opinion
NO. PD-0257-21
12-21-2022
Danna Presley CYR, Appellant v. The STATE of Texas, Appellee
Paul Mansur, for Appellant. John R. Messinger, for Appellee.
Paul Mansur, for Appellant.
John R. Messinger, for Appellee.
OPINION
McClure, J., delivered the opinion of the Court, in which Keller, P.J., Hervey, Richardson, and Newell, JJ., joined. In late June 2013, Appellant and her husband, Justin Cyr, took their four-month-old child, J.D., to the emergency room in Lubbock. Upon their arrival, medical staff quickly discovered J.D. was suffering from life-threatening brain hemorrhaging. Physicians were able to save J.D.’s life, but the bleeding resulted in permanent physical and cognitive dysfunction. The cause of the child's injuries is uncontroverted; J.D. was violently assaulted by her father Justin Cyr. Justin was convicted separately for injury to a child and sentenced to life imprisonment. His conviction is not at issue.
Appellant was indicted, convicted, and sentenced to fifteen years’ imprisonment for reckless injury to a child by omission. The State sought its general verdict under two theories: (1) Appellant failed to protect J.D. from Justin, or (2) Appellant failed to seek reasonable medical care despite her duty to act as J.D.’s parent.
We granted discretionary review to decide whether Appellant was entitled to a jury instruction under Texas Penal Code § 6.04(a) ’s concurrent causation provision for acts "clearly insufficient" to cause the proscribed harm. TEX. PENAL CODE § 6.04. Because we find concurrent causation was not raised by the evidence presented at trial under Texas Penal Code § 22.04(a) and § 6.04(a), we reverse the judgment of the Eleventh Court of Appeals and affirm the judgment of the trial court.
BACKGROUND
On June 29, 2013, while Appellant was in the kitchen of the family home in Denver City, Appellant's husband Justin Cyr began to "choke" and shout expletives at J.D. in the living room. The couple's older child, E.P., who was five years old at the time, testified at trial that Appellant subsequently entered the living room and instructed Justin to "stop hurting the baby." Later that night and into the early morning, Appellant noticed J.D. was experiencing seizure-like symptoms and called Justin's mother who was a retired nurse. Justin's mother advised Appellant to give J.D. Tylenol and monitor the child. Appellant followed that advice. The next day, J.D. began to experience seizure-like symptoms again and the couple decided to take the child to Covenant Hospital in Lubbock, rather than their local hospital just six miles away. J.D. continued to experience the same symptoms throughout the hour-long drive to Lubbock. Although Appellant and Justin originally told investigators they drove to Lubbock because Justin distrusted physicians in Denver City, later testimony from Appellant's mother revealed the decision to drive to Lubbock was made to avoid Child Protective Services (CPS).
E.P. testified that Justin had choked the baby on other occasions. Additionally, the couple's eldest child B.P. testified that she previously witnessed Justin harm J.D. on numerous occasions when J.D. cried, but was with her maternal grandparents on the date this particular incident occurred.
When Appellant, Justin, and J.D. arrived at the hospital in Lubbock, medical personnel quickly realized the child's injuries resulted from non-accidental abuse. The hospital contacted CPS and CPS coordinated its investigation with the Lubbock Police Department.
Appellant and Justin were approached by Chief Deputy Patrick Kissick at the hospital and asked about the circumstances of J.D.’s injury. Both responded that the child began to experience the seizure-like symptoms after a "hard bowel movement." Neither Appellant nor Justin notified Deputy Kissick of the abuse, prior accidents, falls, or the "popping sound" the child made when she was picked up.
Medical professionals at Covenant Hospital also discovered the child had two broken ribs and estimated that injury to be about two weeks old at the time she was brought in.
Pediatric ophthalmologist Dr. Curt Cockings and pediatrician Dr. Patty Patterson testified to the severity of the force required to cause such extensive injuries to J.D. and the mechanism of injury. They found that J.D. was shaken powerfully enough that her brain struck the inside of her skull, causing extensive subdural hemorrhaging, retinal hemorrhaging, brain swelling, and retinal detachment. Dr. Cockings concluded the injuries would not have been caused by a "hard bowel movement," a short fall, being squeezed, or being struck. Dr. Patterson further concluded that immediate medical treatment could have reduced the extent of the damage.
Dr. Pankratz, testifying to J.D.’s ongoing medical treatment, estimated J.D.’s development including speech and fine motor skills to be that of about an 18-month-old to two-year-old standard despite her chronological age at the time of trial being five-and-a-half years. She is not expected to progress further than the two-and-a-half-year developmental standard. She likely will never develop even rudimentary skills such as using the bathroom unassisted or communicating effectively with caregivers. She has been left legally blind and her life expectancy has been dramatically reduced. A substantial portion of J.D.’s brain is "dead," and will never recover.
Based on the medical findings, Deputy Kissick obtained an arrest warrant for both parents. Justin and Appellant were arrested on July 2, 2013. In an interview after her arrest, Appellant gave a brief statement to police indicating she was unaware of Justin's prior domestic violence charges or what would have caused J.D.’s injuries other than the constipation she previously discussed with Deputy Kissick. Appellant was charged under Texas Penal Code § 22.04 by two paragraphs. In the first paragraph, the State alleged Appellant "recklessly, by omission, cause[d] serious bodily injury" to J.D. when she failed to protect the child from being "grabbed, squeezed or shaken by Justin Cyr, or by failing to seek reasonable medical attention" where she had a duty to protect and provide medical care. The second paragraph differed solely with respect to Justin's actions, alleging Appellant failed to protect J.D. from "being struck against a hard surface by Justin," and subsequently failed to provide medical care.
At trial, Appellant's defensive theory pointed a finger at Justin, arguing Appellant should not be held liable for his actions because, after all, J.D.’s injury would not have occurred in the absence of Justin's violent abuse. Appellant further argued that her failure to procure medical treatment did not worsen J.D.’s injury, nor was Appellant aware of the risk of injury to the child by virtue of Justin's presence in the home.
Based in part on her argument that she should not be held liable for her failure to act, Appellant requested a jury instruction on concurrent causation. The trial court denied the request and, with respect to causation, required the jury to find: "... by this failure to protect [J.D.] or by this failure to provide medical care to [J.D.] [Appellant] caused bodily injury to [J.D.]." Appellant was convicted by a jury and sentenced to fifteen years’ imprisonment in the Institutional Division of the Texas Department of Criminal Justice.
DIRECT APPEAL
On direct appeal, Appellant raised two grounds for review: (1) the trial court erred when it refused to instruct the jury on concurrent causation, and (2) the evidence at trial was legally insufficient to support a conviction under § 22.04 of the Texas Penal Code.
With respect to her first issue, Appellant argued concurrent causation is a defensive issue raised by the facts of this case, entitling her to a jury instruction. She argued, with respect to her failure to prevent the child's injuries, that she was neither present nor aware of Justin's conduct towards the child for purposes of preventing his harmful act. In response to the State's theory that Appellant failed to provide adequate medical care, Appellant argued there was some evidence in the record indicating the delay in treatment had no adverse effect on J.D.’s injuries. She concluded that her burden to provide evidence that her acts alone were clearly insufficient to cause the harm was satisfied, that Justin's act alone was clearly sufficient alone to cause the harm, and therefore the trial court erroneously refused her request for a jury instruction on concurrent causation.
The Eleventh Court of Appeals agreed and held that Appellant's entitlement to an instruction on the issue was predicated on Appellant's ability to produce some evidence that her actions, standing alone, were "clearly insufficient" to produce the harm to J.D. Cyr v. State , 630 S.W.3d 380, 388 (Tex. App.—Eastland 2021). Relying heavily on its decision in Wright , the court of appeals found "some evidence" Appellant's conduct did not cause aggravation of J.D.’s injury and was otherwise insufficient to cause the resulting injury. Id. (emphasis in original). It found Appellant entitled to an instruction on concurrent causation. Id. ; Wright v. State , 494 S.W.3d 352 (Tex. App.—Eastland 2015, pet. ref'd) (finding failure to obtain medical care was a concurrent cause with preceding sexual abuse). Under a "some harm" analysis, the jury's inability to consider the issue of concurrent causation despite the defense's theory of the case, which centered on Justin's culpability improperly denied Appellant presentation of her theory of the case. Cyr , 630 S.W.3d at 388. The appellate court thus sustained Appellant's first issue, reversing the judgment of the trial court.
In addressing Appellant's second issue, and despite having found "some evidence" supporting Appellant's argument that her conduct alone would have been "clearly insufficient" to cause the harm to J.D., the court of appeals found the evidence presented at trial sufficient to permit a jury to find both Appellant's omissions caused serious bodily injury to J.D. beyond a reasonable doubt. Id. at 390.
STATE'S PETITION AND APPELLANT'S RESPONSE
The State petitioned this Court, arguing concurrent causation is wholly inapplicable to omission offenses under § 22.04 or otherwise is not raised by the facts of this case. TEX. PENAL CODE § 22.04. The State complains that a concurrent causation instruction, if offered in omission cases, would operate to absolve Appellant of liability by virtue of the mere fact her crime was an omission rather than an act. In response, Appellant argues omission offenses are appropriately addressed by the reasoning contained in § 6.04 on concurrent causation, as it prevents a criminal defendant from facing liability where there are several actors and the defendant's omissions are "clearly insufficient" to result in the harm. TEX. PENAL CODE § 6.04(a). Because Appellant points to no evidence relevant to a concurrent-causation instruction and instead argues alternative cause, we reverse the judgment of the court of appeals and affirm the judgment of the lower court.
Evidentiary sufficiency is not at issue in our review.
LAW
Standard of Review
We review jury charge error under a two-pronged test, by looking first to whether the charge is erroneous. Wooten v. State , 400 S.W.3d 601, 606 (Tex. Crim. App. 2013). Second, we ask whether Appellant was harmed by the error. Wooten , 400 S.W.3d at 606 ; see Ngo v. State , 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). Where there was a timely objection, Appellant must show she suffered "some harm." Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g); TEX. CODE CRIM. PROC. § 36.19. Where there was no timely objection, Appellant must show she suffered egregious harm, which we determine by considering the jury charge as a whole, the issues raised by the parties, the evidence at trial, and "anything else in the record that informs our analysis." Lozano v. State , 636 S.W.3d 25, 29 (Tex. Crim. App. 2021).
The State contends Appellant is not entitled to an instruction on concurrent causation by the very nature of injury-to-a-child-by-omission offenses under Texas Penal Code § 22.04. Inclusion of an instruction on the defensive issue requires the defendant to demonstrate that there is evidence supporting it. See Hughes v. State , 897 S.W.2d 285, 297 (Tex. Crim. App. 1994) (citing Robbins v. State , 717 S.W.2d 348, 351 (Tex. Crim. App. 1986) ); see Shaw v. State , 243 S.W.3d 647, 658 (Tex. Crim. App. 2007) ("Whether a defense is supported by the evidence is a sufficiency question reviewable on appeal as a question of law."); see also Dyson v. State , 672 S.W.2d 460, 463 (Tex. Crim. App. 1984) ("The issue before this Court is not the truth of appellant's testimony, for that is for the jury.").
Injury to a child by omission, § 22.04
In contrast to the majority of crimes which proscribe an action, an omission is punished only when there is "a corresponding duty to act." Billingslea v. State , 780 S.W.2d 271, 274 (Tex. Crim. App. 1989) ; see Florio v. State , 784 S.W.2d 415 (Tex. Crim. App. 1990). Chapter 6 of the Texas Penal Code generally denounces criminal omissions, permitting them only where "a law ... provides that the omission is an offense or otherwise provides that [an individual] has a duty to perform the act." TEX. PENAL CODE § 6.01(c). Section 22.04 of the Texas Penal Code is one of those provisions. By its terms, § 22.04 punishes an individual who "intentionally, knowingly, or recklessly by omission, causes to a child ... serious bodily injury." TEX. PENAL CODE § 22.04(a). Injury-to-a-child offenses under § 22.04 are "result-oriented" and "requir[e] a mental state that relates not to the specific conduct, but to the result of that conduct." Williams v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (citing Alvarado v. State , 704 S.W.2d 36, 39 (Tex. Crim. App. 1985) ).
Thus, to prove injury to a child by omission under § 22.04, the State must show a person: (1) "intentionally, knowingly, or recklessly," (2) "by omission," (3) "cause[d] to a child," (4) "serious bodily injury; serious mental deficiency, impairment, or injury; or bodily injury." TEX. PENAL CODE § 22.04(a).
Appellant does not challenge the fact that Justin inflicted serious injury on J.D. which caused her to suffer irreparable brain damage. Neither does she challenge the fact she failed to prevent it from occurring and failed to provide reasonable medical care after the fact. Nor does Appellant contest her duty to act under § 22.04(b) as J.D.’s parent. Parents stand in a special relationship to their children and have statutory duties including providing their children with food, shelter, or other necessities including medical care and protection from harm. TEX. FAM. CODE § 151.001(a)(2–3). The sole remaining issue is Appellant's entitlement to a jury instruction on concurrent causation.
Concurrent Causation
The scope of causation under the Texas Penal Code is broad, allowing courts to find causation where "the result would not have occurred but for [the] conduct, operating either alone or concurrently with another cause." TEX. PENAL CODE § 6.04(a).
The breadth of causation under § 6.04 results from the differences between civil and criminal law. Unlike tort law in which causation functions as a litmus test for fairness, causation in criminal law is limited by the culpability requirement. JOSHUA DRESSLER , UNDERSTANDING CRIMINAL LAW 186–87 (8th ed. 2018) ("[T]he Model Penal Code treats but-for causation as the exclusive meaning of ‘causation’ in the criminal law. The Code treats matters of ‘proximate causation’ as issues relating instead to the actor's culpability."). We have nonetheless recognized that such foreseeability limitations exist. Williams v. State , 235 S.W.3d 742, 755, 764 (Tex. Crim. App. 2007) ("The defendant's conduct must be a direct cause of the harm suffered.") ("Obviously some element of foreseeability limits criminal causation.").
Further evidencing § 6.04(a) ’s breadth, an actor need not be the sole cause of the harm. Causation is established where the conduct of the defendant is the "but for" cause "operating alone or concurrently with another cause." TEX. PENAL CODE § 6.04(a) ; Robbins v. State , 717 S.W.2d 348, 351 (Tex. Crim. App. 1986). "Another cause" is one in addition to the actor's conduct, "an agency in addition to the actor." Robbins , 717 S.W.2d at 351 n.2 (citing S. Searcy and J. Patterson, Practice Commentary, V.T.C.A. Penal Code, Sec. 6.04 ).
Where two or more causes satisfy "but for" causation, a criminal defendant remains liable if her conduct was either sufficient to have caused the result alone "regardless of the existence of a concurrent cause," or both causes "together " were sufficient to cause the result. Robbins , 717 S.W.2d at 351 (emphasis in original). An individual's guilt may not be premised on his conduct being a mere "contributing factor" without more. Id. To illustrate: Two arsonists each light fire to the same house, one on the east side and one on the west side, both of which are independently sufficient to burn the house to the ground. Neither arsonist is entitled to an instruction on concurrent causation and both are criminally liable. The same result is reached if both fires would independently be insufficient to burn the house to the ground, but the combined force of the east fire and the west fire causes such a result. Only where the east arsonist can produce evidence that his fire was clearly insufficient to burn the house to the ground, and the west arsonist's clearly sufficient acting alone, would the east arsonist be entitled to an instruction on concurrent causation and potentially escape liability for the full extent of the damage caused under concurrent causation.
David A. Fischer, Causation in Fact in Omission Cases , 1992 Utah L. Rev. 1335, 1336 (1992) (using a dwelling fire analogy to demonstrate concurrent causation principles).
Restated, § 6.04(a) entitles a defendant to an instruction on concurrent causation when she shows (1) "an agency in addition to the actor" was a "but for" cause of the result charged, and (2) some evidence demonstrates her conduct is "clearly insufficient" to cause the harm and the other, concurrent cause is clearly sufficient to cause the harm. TEX. PENAL CODE § 6.04(a) ; Robbins , 717 S.W.2d at 351 n.2 (citing S. Searcy and J. Patterson, Practice Commentary, V.T.C.A. Penal Code, Sec. 6.04 ); Hughes v. State , 897 S.W.2d 285, 297 (Tex. Crim. App. 1994).
Concurrent causation should not be confused with "alternative caus[ation]," however. Barnette v. State , 709 S.W.2d 650, 652 (Tex. Crim. App. 1986). Unlike concurrent causation, which alleges there was an "agency in addition to the actor" responsible in whole or in part for the harm, alternative cause is "an entirely different issue." Robbins , 717 S.W.2d at 351 n.2 (quoting S. Searcy and J. Patterson, Practice Commentary, V.T.C.A. Penal Code, Sec. 6.04 ) ("A concurrent cause is ‘another cause’ in addition to the actor's conduct, an "agency in addition to the actor."); Barnette v. State , 709 S.W.2d 650, 651 (Tex. Crim. App. 1986) ("It is doubtful whether that request was sufficient to alert the trial court to the need for a charge on ‘alternative’ cause, an entirely different issue."). Contrary to concurrent causation, which does not dispute the culpable act or mental state alleged by the State and merely blames another for the result, alternative causation "is simply a different version of the facts, one which negates at least one element of the State's case." Barnette , 709 S.W.2d at 652.
In Barnette , the defendant was tried on three counts: murder, reckless injury to a child, and negligent injury to a child after her infant son died when he was burned with hot water. At trial, Barnette argued that the child was left alone and caused his own injury by turning on the hot water faucet. This fact pattern was identical to the State's allegation of reckless injury to a child, however. As a result, we found no error in the trial court's "refus[al] to instruct the jury to find appellant not guilty if they found to be true facts that would prove her guilty of injury to a child." Id. at 651.
Here, Appellant was charged with one count of injury to a child by omission on two theories: (1) that she failed to protect J.D. from the harm caused by Justin, and (2) that she failed to provide reasonable medical care once the initial harm occurred. Both omissions were alleged to have caused or contributed to J.D.’s injuries, but the jury was permitted to decide guilt on either theory.
ANALYSIS
Appellant was not entitled to a concurrent cause instruction regarding failure to protect
Applying our framework to the instant case, we must first ask whether Appellant has shown a concurrent cause exists. TEX. PENAL CODE § 6.04(a). Here, Appellant argues that the evidence introduced at trial including her absence from the room where the injury occurred and the children's uncertainty about Appellant's awareness of Justin's prior abuse of J.D. were facts demonstrating concurrent causation. These facts do not establish a concurrent cause, however, but are the very essence of the State's case. The State alleged that Appellant, aware of a risk of injury or harm, failed to protect J.D. from the thing likely to cause the harm. Appellant's contention that she was ignorant of the abuse on the date of the incident does nothing to controvert causality, and only points to some evidence, which the jury did not find persuasive, that she did not possess the requisite mental state in order to be found guilty of reckless injury to a child. Where she contests an essential element of the State's case and does not raise facts sufficient for a concurrent cause instruction, her argument falls under Barnette ’s alternative-causation framework.
Evidence introduced at trial also revealed Justin's criminal record contained other domestic-violence offenses, including violence against young children.
The trial court did not err by refusing to give an instruction which would have asked the jury to acquit Appellant if they found one of the essential elements of the State's case, that Justin did in fact injure the child when Appellant failed to protect her. See Barnette , 709 S.W.2d at 652. Thus, we find Appellant is not arguing concurrent causation, but only alternative causation under the guise of concurrent causation. The jury charge clearly demanded a contrary result if it found Appellant unaware of the circumstances creating a risk of harm to J.D. After all, the very essence of a recklessness offense is Appellant's conscious appreciation of a substantial risk of harm. TEX. PENAL CODE § 6.03(c).
Factually, the harm to J.D. would not have occurred, if, instead of asking that Justin "stop hurting the baby," Appellant had removed the children from Justin's presence, alerted law enforcement, or otherwise taken action to prevent harm to J.D. "But for" Appellant's failure to act on her duty to protect her child, J.D. would not have suffered such horrific abuse. Appellant concedes such a failure to protect, asking only whether she produced some evidence that Justin's conduct was a concurrent cause which was independently, sufficiently harmful by virtue of evidence indicating he abused the child in the living room while she was in the kitchen and ambiguous evidence regarding whether the children notified Appellant of the abuse. Her presence in the kitchen is irrelevant to this question; Appellant's awareness of the ongoing abuse was provided for in the nature of the offense and is unrelated to causality insofar as it merely contests mental culpability. To hold otherwise would undermine the intention of the legislature, permitting criminal defendants charged with omission to blame another person, thing, or condition, and leaving Texas Penal Code § 22.04 and § 6.04 bereft of their plain meaning.
The sufficiency of the evidence as to each of these theories was upheld on appeal, so we need not address them. Cyr , 630 S.W.3d at 380.
Appellant's position readily lends itself to an analogy with our decision in Williams. Williams v. State , 235 S.W.3d 742 (Tex. Crim. App. 2007). In Williams , we expressed distaste for expansive views on causation, fearing that courts would hold parents liable for any action which led to the child's harm including "meeting [the other parent], having an intimate relationship with him, bearing [the children], ... and so forth." Id. at 764. We then recognized "some element of foreseeability limits criminal causation just as it limits principles of civil ‘proximate causation.’ " Id. (quoting AMERICAN LAW INSTITUTE , MODEL PENAL CODE § 2.03, Explanatory Note at 265 n.24). Core tenets of civil proximate cause hold a tortfeasor liable for his acts or omissions when "criminal conduct is a foreseeable result of such negligence." See Travis v. City of Mesquite , 830 S.W.2d 94, 98 (Tex. 1992) (holding causality often flows from a foreseeability inquiry).
As stressed above, the jury in this case was required to find Justin's actions a foreseeable consequence of Appellant's omission by virtue of the definition of recklessness. We recognized the same connection in Williams , which primarily centered on Williams's culpability with respect to the accident injuring the children, rather than whether her act of leaving the children with her boyfriend factually caused the harm to the children. Williams , 235 S.W.3d at 742 (emphasis added). No party to the Williams case contested the fact that Williams's actions in leaving the children with her boyfriend factually caused the harm. Id. at 764. The same is true in this case; Appellant's failure to remove the children from a known danger allowed harm to occur.
The distinction is evident: while Williams could not have foreseen the series of unfortunate events which led to a dwelling fire killing her children because there was no evidence suggesting he was "an incompetent caretaker," an avalanche of evidence pointed to Appellant's knowledge of Justin's ongoing abuse of J.D. when he was present in the home. Id. at 765. Foreseeability is an implicit requirement for causation that criminal law addresses through culpability. See id. at 751 ("Recklessness requires the defendant to actually foresee the risk involved and consciously decide to ignore it."). Thus, evidence contesting such foreseeability, as in Williams , is evidence refuting mens rea. Foreseeability in the instant case was proven by virtue of the jury's finding of recklessness, and the sufficiency of the evidence on that point, having been upheld by the court of appeals, is not before us. Cyr , 630 S.W.3d at 380. When the State proved the necessary mens rea, it likewise proved "proximate causation" as that term is used in the civil counterpart to criminal causation. Henderson v. Kibbe , 431 U.S. 145, 156, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977) ("A person who is ‘aware of and consciously disregards’ a substantial risk must also foresee the ultimate harm that the risk entails."); JOSHUA DRESSLER , UNDERSTANDING CRIMINAL LAW 186–87 (8th ed. 2018) ("[T]he Model Penal Code treats but-for causation as the exclusive meaning of ‘causation’ in the criminal law. The Code treats matters of ‘proximate causation’ as issues relating instead to the actor's culpability.").
Specifically:
• E.P. testified that Justin violently choked J.D. and shouted expletives at the child. She testified that the home was an open-concept trailer in which such disturbances could be heard throughout the home. E.P. further testified that Appellant told Justin to "stop hurting the baby," on the night J.D. was injured and that the violence had occurred before.
• B.P. testified she observed violence between Justin and the baby on numerous occasions, although she was not present on the night in question. B.P. also testified that the home was an open concept in which noise could easily be detected.
• Medical experts testified that the child had old injuries including broken ribs which appeared to be about two weeks old and that J.D. would have been exhibiting seizure-like symptoms immediately after she suffered the head injury.
• Appellant admitted to law enforcement during an interview that she wanted to take J.D. to the hospital on the night the injury occurred.
• Appellant's mother Deborah testified that on the morning after the injuries occurred, Appellant called her and indicated J.D. had suffered a seizure. Deborah told Appellant to take J.D. to the hospital in Denver City immediately, but Appellant decided to take J.D. to the hospital in Lubbock instead, even though that hospital was seventy-five miles away.
• Deborah also reported that Appellant revealed to her the real decision to take J.D. to Lubbock instead of Denver City: Justin wanted to avoid CPS.
Cyr , 630 S.W.3d at 383–85, 390.
Further, had Williams alleged concurrent causation principles absolved her of liability by virtue of her boyfriend's simultaneous acts in inadvertently burning the home, this Court would be faced with an identical dilemma. Thus, the confusion confronted in this case extends not only to omission offenses but likewise appears with respect to a charge involving an affirmative act. The State's contention that the conflict in this case is confined to omission cases is therefore unfounded.
Our conclusion likewise comports with the reasoning of the American Law Institute's Model Penal Code, on which the Texas Penal Code is based. Under the Model Penal Code, defendants may remain independently liable for their harmful omissions even where the injury occurs vis-à-vis a third party. JOSHUA DRESSLER , UNDERSTANDING CRIMINAL LAW 186 (8th ed. 2018) (where a father fails to protect his child from a violent stranger, the stranger remains liable despite the father's failure to protect and the father remains liable despite the stranger's assault "on the basis of omission principles").
Finally, a concurrent causation jury instruction would only serve to confuse the jury. Trusting a jury to reconcile factual causation and concurrent causation in a case where the evidence does not support concurrent causes would improperly ask the jury the same questions the Eleventh Court of Appeals has apparently designated "too difficult for lawyers or even for philosophers." Cyr , 630 S.W.3d at 386 (quoting Westbrook v. State , 697 S.W.2d 791, 793 (Tex. App.—Dallas 1985, pet. ref'd) ).
As a result, we find concurrent causation inapplicable to Appellant's failure to prevent J.D.’s injury, as Appellant's arguments contest culpability, rather than allege concurrent causes.
Appellant was not entitled to a concurrent cause instruction regarding failure to provide reasonable medical care
Likewise, Appellant fails to demonstrate that Justin's act was a concurrent cause of her failure to provide medical care for J.D. Section 22.04(a) is a "result of conduct" offense; where the allegation is a failure to provide medical care, the result must flow from that conduct. See Alvarado v. State , 704 S.W.2d 36, 39 (Tex. Crim. App. 1985) (noting that the injury to a child statute is a result-oriented offense). As we noted in Jefferson , we do not require jury unanimity regarding the conduct constituting the "means" in injury to a child cases under § 22.04 where the injury is nevertheless caused by such act or omission. Jefferson v. State , 189 S.W.3d 305, 311–12 (Tex. Crim. App. 2006). Both means alleged, however, must satisfy the "but-for" causal connection with the result. See id. at 12 ("A person commits the offense of injury to a child if (with a particular culpable mental state) he causes serious bodily injury to a child by ‘act or omission.’ ").
The Eleventh Court of Appeals also found evidence that Appellant's failure to provide medical care aggravated or worsened J.D.’s injury. Cyr , 630 S.W.3d at 388. The issue is not before us.
Here, the State alleged that both Appellant's failure to prevent injury and failure to provide medical care caused the child's injuries. Both must have been a "but-for" cause of the resulting harm, and both are analyzed separately for purposes of concurrent causation. The fact Justin injured the child at the same time Appellant failed to prevent the injury does nothing to controvert the causal relationship between Appellant's failure to provide medical care and the injury.
Further, because injury-to-a-child offenses are result-oriented, § 22.04 requires the State to prove not only that an individual failed to provide reasonable medical care, but that doing so caused a separate injury, even if the separate injury was a worsening of the child's condition. Dusek v. State , 978 S.W.2d 129, 133 (Tex. App.—Austin 1998, pet. ref'd) ("[I]t [is] necessary to prove that [the child] suffered a serious bodily injury because appellant failed to provide him medical care."). Therefore, any causal dispute regarding the source of J.D.’s initial injury necessarily would not apply to the subsequent failure to provide reasonable medical care. The jury charge correctly required the jury to find a causal relationship between both proposed means and the resulting, separate injuries.
One concurrent cause present in this case which Appellant could have raised but did not, centers on Justin's failure to provide medical care following the initial injury. Assuming such a concurrent omission satisfies the first prong of our test under § 6.04(a), it fails the second requirement which would require Appellant to show that the concurrent omission was clearly sufficient alone to cause the additional injury, while hers was clearly insufficient. TEX. PENAL CODE § 6.04(a). Thus, such an example would merely be a concurrent cause that would not entitle Appellant to an instruction under § 6.04.
One can imagine alternate scenarios concurrently causing delay in the provision of medical care, which are neither argued nor present on these facts. The above is merely a non-exclusive example. Nothing in this opinion should be construed to hold that a concurrent cause must be identical to the offensive conduct. As outlined above, to show entitlement to an instruction on concurrent causation, a defendant need only show (1) an "agency in addition to the actor" "operat[ed] ... concurrently" with the offensive conduct, and (2) on its own, was "clearly sufficient" to produce the result, while the defendant's conduct was insufficient. TEX. PENAL CODE § 6.04(a). Robbins , 717 S.W.2d at 351 n.2 (citing S. Searcy and J. Patterson, Practice Commentary, V.T.C.A. Penal Code, Sec. 6.04 ).
Appellant has not satisfied this test. She points to no evidence suggesting a concurrent cause contributed to aggravation of J.D.’s initial injuries, or that a concurrent cause was otherwise responsible for Appellant's delay in obtaining medical care. Appellant misunderstands the result to which the concurrent cause must apply and points us to no evidence suggesting the delay in obtaining medical care was due to some other "agency" for purposes of causation under § 6.04.
CONCLUSION
Section 6.04(a) prescribes a narrow set of circumstances in which a defendant would be entitled to a concurrent causation instruction, in that is confined to those circumstances in which "the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient." TEX. PENAL CODE § 6.04(a). Concurrent causation should not be over construed to encompass culpability disputes appropriately addressed by the essential elements of the crime. Barnette , 709 S.W.2d at 652. While Appellant characterizes her argument as one involving concurrent causation, the evidence she produced at trial only provided some evidence contesting her awareness of Justin's abuse, rather than some evidence the harm would inevitably have occurred despite performance of her statutory duty to protect J.D. As we made clear, the jury has previously decided, and the court of appeals affirmed, the sufficiency of the evidence as to Appellant's reckless mental state. Cyr , 630 S.W.3d at 388.
Further, and because this Court is unaware of which theory the jury chose to support its general guilty verdict, Appellant's failure to provide reasonable medical care does not demonstrate a concurrent cause. Because the delay in providing medical care must also cause injury, even where that injury was a worsening of the child's current condition, the question of causality for that additional injury was necessarily separate from the initial injury. See Dusek , 978 S.W.2d at 133. Thus, Appellant is not entitled to a concurrent causation instruction on either theory raised at trial. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.
Keel, J., concurred.
Yeary, J., filed a dissenting opinion.
Walker and Slaughter, JJ., dissented without opinion.
Yeary, J., filed a dissenting opinion. In its petition for discretionary review in this case, the State Prosecuting Attorney (SPA) urges the Court to hold that the "concurrent cause" provision of Section 6.04(a) of the Texas Penal Code simply has no application to an offense that is committed by omission rather than by commission. TEX. PENAL CODE § 6.04(a). As I understand the Court's opinion today, it implicitly rejects that categorical approach, but it concludes that Appellant has failed to point to any evidence in the case that would have justified the trial court in submitting a "concurrent cause" instruction to the jury in any event. I disagree with both the SPA and the Court, and so I respectfully dissent.
In its entirety, Section 6.04(a) reads: "A person is criminally responsible if the result would not have occurred but for his conduct, operating either 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." Tex. Penal Code § 6.04(a).
I. INJURY TO A CHILD BY OMISSION
According to the Penal Code, "[e]lement of offense means: (A) the forbidden conduct ; (B) the required culpability; (C) any required result ; and (D) the negation of any exception to the offense." TEX. PENAL CODE § 1.07(22). As for "conduct," that "means an act or omission and its accompanying mental state." Id. § 1.07(10). " ‘Omission[,]’ " in turn, "means failure to act." Id. § 1.07(34). "Conduct" is not an offense unless it is defined to be so by statute or otherwise. TEX. PENAL CODE § 1.03(a). So, "conduct" that constitutes a failure to act is only an offense when it is defined as such by, e.g. , statute; indeed, the law must "provide[ ] that the omission is an offense or otherwise provide[ ] that [the actor] has a duty to perform the [omitted] act." TEX. PENAL CODE § 6.01(c).
All emphases to the quoted materials are added by the author of this opinion unless otherwise specified.
Section 22.04(1)(a) of the Penal Code defines one such offense. It authorizes prosecution of an offender when she "... intentionally, knowingly, or recklessly by omission , causes to a child ... serious bodily injury[.]" TEX. PENAL CODE § 22.04(a)(1). "An omission that causes" serious bodily injury "is conduct constituting an offense under this section if ... the actor has a legal or statutory duty to act; or ... the actor has assumed care, custody, or control of a child[.]" Id. § 22.04(b). In this way, Section 22.04 of the Penal Code clearly regards the "failure to act" to be "conduct" that can actually "cause " a child serious bodily injury—at least so long as the actor has a duty to act, or if the actor has "care custody, or control" of that child, and the actor's "failure to act" is in dereliction of that duty.
In this case, Appellant was the child's mother. The "failure to act" that caused her child serious bodily injury, as alleged in the indictment, was two-fold: (1) her failure to protect the child from attack by her husband, the child's father; and (2) her failure to obtain timely medical intervention for the child following the brutal attack. At trial, Appellant argued that the "conduct" on her part—her "failure to act"—by which she is alleged to have "caused" her child serious bodily injury, also had a "concurrent cause" consistent with Section 6.04(a) of the Penal Code ; namely, her husband's wholly independent "conduct" in viciously assaulting their child. Absent her husband's act of commission , of course, the child would have suffered no injury at all. Appellant argues that there was evidence presented at her trial to support a jury finding that her husband's assaultive conduct was "clearly sufficient" to "cause" their child serious bodily injury while also supporting a finding that her own "conduct" in "failing to act" was "clearly insufficient" to "cause" that injury. Based on this evidence, she claimed on appeal, the trial court should have granted her requested instruction under Section 6.04(a). With such an instruction, she maintained, she would have been equipped to argue to the jury that, because her own "conduct" was independently "clearly insufficient" to "cause" the child's injury, the jury was authorized to reject the State's attempt to hold her "criminally responsible" for the "result" that her husband's "conduct" was independently "clearly sufficient" to "cause." The court of appeals agreed, and reversed Appellant's conviction. Cyr v. State , 630 S.W.3d 380, 387, 389 (Tex. App.—Eastland 2021).
Without objection from the State, the jury charge limited the jury's consideration to the first paragraph of a one-count, two paragraph indictment alleging that, on June 29, 2013, Appellant "recklessly, by omission, cause[d] serious bodily injury ... to [J.D.], a child 14 years of age or younger, by failing to protect [J.D.] from being grabbed, squeezed, or shaken by Justin Clark Cyr, or by failing to seek reasonable medical attention for the said child, when [she] had a legal or statutory duty to act as the parent of the said child, or [she] had assumed care, custody, or control of the child[.]"
Section 6.04(a) ’s "unless" clause does not explicitly say that the concurrent cause must be independently "sufficient," while the actor's conduct, independently "clearly insufficient," to cause the proscribed result. But this Court has concluded in construing the statute that "[i]f the additional cause, other than the defendant's conduct, 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." Robbins v. State , 717 S.W.2d 348, 351 (Tex. Crim. App. 1986) (italicized "and " in the original). And I agree that this conclusion necessarily derives from the word "sufficient" itself. After all, unless conduct is "sufficient" by itself to cause a result, then it is not really "sufficient" at all. Any contrary reading of the "unless" clause would seem to render it self-nullifying. If, in deciding whether the actor's conduct is "clearly insufficient" to produce the proscribed result, a court would be entitled to consider the "clearly sufficient" concurrent cause, the actor's conduct will, by definition, always be likewise "sufficient" (indeed, "clearly sufficient"). The clause would entirely cancel itself out.
We granted the SPA's petition for discretionary review to try to shed some light on the admittedly bizarre interface between the law authorizing criminal responsibility for "conduct" by "omission"—that is, the "failure to act"—and the law with respect to "causation," and, more particularly, "concurrent causation" as set out in Section 6.04(a). The SPA urges the Court to simply hold—as an absolute matter—that Section 6.04(a) has no application where criminal responsibility by omission is concerned, because the kind of "causation" contemplated by the "failure to act" upon a duty to do so is wholly removed from the sort of "causation" the Legislature had in mind in passing Section 6.04(a). The idea seems to be that, with an offense of omission, it is the dereliction of duty more than actually causing the proscribed "result" that is the sine qua non of the offense. The Court today does not adopt the SPA's categorical approach, but it seems to me that it might as well have. For my part, I would affirm the judgment of the court of appeals and put the onus of clarification on the Legislature itself, if what it plainly said in Section 6.04(a) was somehow not what it believed it was saying.
In the conclusion of that part of its brief that makes this argument, the SPA asserts:
When a parent has a legal duty to protect a child from injury but recklessly fails to do so, she is responsible for the result regardless of what or who the risk of injury was. If [A]ppellant is guilty of failure to protect, concurrent causation is inapplicable as a matter of law. That is what Section 22.04 effectively says. That is what this Court should explicitly say.
State's Brief on the Merits at 20.
II. THE SPA'S ARGUMENT
I do not think the text of the applicable statutes will bear the construction the SPA would have us impose upon them. Section 22.04(a) explicitly regards an "omission"—a "failure to act"—as "conduct" that can "cause " serious bodily injury. There is no reason to suppose that such a "cause" would not be subject to the express provisions of Section 6.04(a), subject to that section's provision with respect to "criminal responsibility" for a result that would not have occurred "but for" that cause, even if there existed "another" "but for" "cause." TEX. PENAL CODE § 6.04(a).
It occurs to me that it will be the State, not a defendant, who will more often seek to invoke this opening clause of Section 6.04(a), in any case involving a "concurrent cause"—if only to foreclose a defensive argument that the defendant cannot be found "criminally responsible" because his was not the only "conduct" or "cause" "but for" which the proscribed "result" "would not have occurred[.]" Id. Nothing in the text of Section 6.04(a) suggests that it would regard conduct constituting an omission any differently than conduct constituting commission. And there is no more reason to suppose conduct that constitutes an omission would not be equally subject to the section's "unless" clause: "unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient." Id.
The SPA likens criminal responsibility by concurrent cause involving omission to criminal responsibility as a party under Chapter 7 of the Penal Code, in which context Section 6.04(a) has been held not to apply. State's Brief on the Merits at 17; Tex. Penal Code Chapter 7; Hanson v. State , 55 S.W.3d 681, 699–700 (Tex. App.—Austin 2001, pet. ref'd). But criminal responsibility as a party under Chapter 7 of the Penal Code does not implicate "another cause" for a proscribed result. When an actor is found guilty as a party under Chapter 7, there is still (at least ordinarily) only one cause of the result as perpetrated by the conduct of the principal actor. The defendant is then criminally responsible for that cause by virtue of his independent behavior in, e.g. , soliciting, aiding, encouraging, etc., the conduct of the principal actor that caused the result. Tex. Penal Code § 7.03(a)(2). In contrast, when a defendant is criminally liable by virtue of his failure to act under Section 22.04(a), the defendant is criminally responsible for his own conduct, and the statute itself regards his "omission" as a "cause" of the proscribed result. So long as there is "another cause" as well, Section 6.04(a) is implicated.
The SPA objects to such an application of Section 6.04(a) because it would thwart what the SPA deems the legislative intent of Section 22.04(a) to punish an actor for failure to adhere to her parental duties, which the SPA regards as the gist of the "omission" offense. But this Court has consistently pronounced that the "gravamen" of injury to a child is the required "result," and this is true no less for a violation of the statute by omission than by commission. See Villanueva v. State , 227 S.W.3d 744, 748 (Tex. Crim. App. 2007) ("As we explained in Jefferson [v. State , 189 S.W.3d 305, 312 (Tex. Crim. App. 2006) ], the ‘gravamen’ of the offense is the same [whether the conduct is "omission" or "commission"]; the statute focuses on the result caused, without criminalizing any particularized conduct by which that result may have been caused."); Nawaz v. State , 663 S.W.3d 739, 747, No. PD-0408-21, 2022 WL 2233864, at *6 (Tex. Crim. App. June 22, 2022) (noting that in Jefferson , "the Court expressly held that the ‘focus’ of the injury to a child statute was the result of conduct, not whether any of the specified results are caused by act or omission"). Would the SPA prosecute a defendant who fails to protect her child or seek medical attention, as is her parental duty, in the face of the mere threat of an injurious result? Section 22.04(a) does not authorize that. On its face, it requires a finding that the omission actually "caused " an injurious "result. " And, as I have said, nothing in the text of Section 6.04(a) would exempt an omission that causes injury from its purview.
See State's Petition for Discretionary Review at 4 ("Whatever the mechanism of injury, a defendant is criminally responsible for it if it would not have occurred but for her failure to act on her duty. That's the point."); id. at 5 ("The jury convicted [A]ppellant of recklessly causing serious bodily injury to her child in part because she failed to protect her from [her husband]. The evidence on that point has been found to be sufficient. That should make [A]ppellant responsible for the injury even if it occurred entirely at [her husband's] hands. * * * Concurrent causation should not apply to cases like this."); State's Brief on the Merits at 20 ("If [A]ppellant is guilty of failure to protect, concurrent cause is inapplicable as a matter of law. That is what Section 22.04 effectively says. That is what this Court should explicitly say.").
Nor am I inclined to believe that Appellant could be successfully prosecuted for attempted injury to a child on these hypothetical facts, under Section 15.01(a) of the Penal Code. Tex. Penal Code § 15.01(a). To commit a criminal attempt under this provision, the actor must commit an "act" (not an "omission") that amounts to more than preparation that tends but ultimately fails to "effect" the commission of the offense intended. Id. She must also do so "with specific intent to commit" the offense. Id. This Appellant was charged only with recklessly causing serious bodily injury by omission. It is hard to imagine how she could be found guilty of harboring the specific intent to recklessly cause serious bodily injury. It would have to have been her "conscious objective or desire" to be "aware of but consciously disregard a substantial and unjustifiable risk that" "the result will occur." Tex. Penal Code § 6.03(a), (c).
Finally, the SPA argues that for the Court to declare that Section 6.04(a) applies to omission offenses would perpetrate an absurdity, resulting in an inability on the State's part to ever prosecute omission offenses with any hope of success. The SPA's concern in this regard is, in my view, exaggerated. As the Court's opinion today seems to recognize, Majority Opinion at 561–62, Appellant might still be prosecuted successfully, without triggering Section 6.04(a) ’s "unless" clause, if her failure to obtain medical treatment for her child resulted in additional or incrementally greater injury to the child than her husband's conduct originally caused. See Villanueva , 227 S.W.3d at 749 (failing to obtain medical treatment for injury caused by another may result in a "separate and discrete" injury than that which was originally caused, which may be punished separately from causing the original injury consistent with double jeopardy principles); Nawaz, 663 S.W.3d at 747 n.7 (omission may result in a separately prosecutable offense if it results in a "separate and discrete, or at least incrementally greater injury") (quoting Villanueva ). If her "failure to act" was not, by itself, "clearly insufficient" to cause that separate , greater injury, her omission will not be insulated from prosecution by Section 6.04(a), and she may still be convicted based on her omission.
State's Brief on the Merits at 17 ("If failing to protect [Appellant's child] from [her husband] recklessly caused [the child's] injuries, [A]ppellant cannot be innocent because [her husband] caused [the child's] injuries. A contrary rule would be absurd. It would swallow the offense whole.").
III. THE COURT'S OPINION
The Court divides its analysis into two parts. It first addresses whether Appellant was entitled to a concurrent causation instruction with respect to the State's first theory of prosecution, that Appellant failed in her duty to protect her child from her husband's assault. Majority Opinion at 558–61. It then separately analyzes whether she was entitled to a concurrent causation instruction regarding the State's second theory, that she failed in her duty to seek medical attention to treat the injury that her husband caused. Id. at 561–62. The Court concludes that, for different reasons, Appellant was not entitled to the instruction under either of the State's theories of omission. In my view, however, Appellant was entitled to the instruction as it relates to both theories of omission.
A. Failure to Protect
The Court asserts that evidence with respect to Appellant's failure-to-protect omission is really just an "alternative-cause" argument in disguise. See Majority Opinion at 559 ("Thus, we find Appellant is not arguing concurrent causation, but only alternative causation under the guise of concurrent causation."). Because the case does not even implicate a "concurrent cause," the Court seems to reason, it need not address the text of Section 6.04(a) at all to resolve whether an instruction was required. I could not disagree more strenuously with this approach.
This case clearly involves a concurrent cause, not a mere "alternative cause." An "alternative cause" is just what it suggests: a different causal agent for the result than that alleged in the State's charging instrument. See Barnette v. State , 709 S.W.2d 650, 651 (Tex. Crim. App. 1986) ("Appellant's theory was that she left the baby alone and he caused his own injury."). Here, Appellant is plainly invoking not an alternative cause, but "another cause"—a cause in addition to her own conduct—and one that she claims, with justification, operated "concurrently" with her omission to cause the child's initial injury as alleged in the indictment. The question therefore plainly devolves into one of whether that concurrent cause was "clearly sufficient" to cause the injury while her omission was "clearly insufficient." TEX. PENAL CODE § 6.04(a). The Court does at one point purport to invoke Section 6.04 ’s "plain meaning," Majority Opinion at 559, but if anything, the Court simply ignores the actual language of Section 6.04(a) itself, never once directly referring to the "unless" clause in its analysis.
It is admittedly odd to speak of the failure to prevent a result as a "cause" of that result. But, as already pointed out, it is Section 22.04(a) itself that has identified "omission" as a "cause" for the proscribed injury.
It seems to me that the "unless" clause could hardly have any plainer application than it does to the facts of this case. If Appellant's husband had not assaulted the child, the child would have suffered no injury at all. His commission of the offense was therefore "clearly sufficient" to cause the whole extent of the initial injury the child suffered. On the other hand, Appellant's omission could not, by itself, have caused the child's initial injury. Failing to protect the child cannot cause an injury that no other causal agent ever inflicts. The jury could have rationally concluded that her omission was "clearly insufficient," by itself, to cause the injury. It should have been equipped, therefore, to acquit her on that basis. Robbins v. State , 717 S.W.2d 348, 351 (Tex. Crim. App. 1986). The Court seems (as best I understand) to justify simply ignoring the plain, literal language of Section 6.04(a) by invoking some vague alternative notion of "foreseeability," as gleaned from this Court's opinion in Williams v. State , 235 S.W.3d 742, 764 (Tex. Crim. App. 2007). Majority Opinion at 559–60. It further cites to sources such as (1) a treatise, (2) the Model Penal Code, and (3) civil law notions of "proximate causation" as apparent justification for transposing the plain terms of Section 6.04(a), including its "unless" clause, into an inquiry about culpable mental states. See id. at 560 ("Foreseeability is an implicit requirement for causation that criminal law addresses through culpability."); see also id. at 561 ("Appellant's arguments contest culpability, rather than allege concurrent causes."). Ultimately, the Court seems to conclude that, because the jury was already equipped to acquit Appellant if it should find that she lacked the requisite culpable mental state of recklessness, there was no need for a concurrent causation instruction—indeed, that such an instruction would only have served to confuse the jury. Id. at 559, 560–61. This is all purest judicial invention, finding no origin whatsoever in the literal text of the statute. I cannot subscribe to it.
One might argue that, had Appellant only satisfied her duty to protect the child, her husband's conduct in assaulting the child would not have been "clearly sufficient" to cause the injury. But this fails to regard her husband's conduct "by itself" in applying Section 6.04(a) ’s "unless" clause. See note 4, ante. His conduct "by itself" was clearly sufficient to cause the injury.
B. Failure to Seek Medical Attention
In addressing the State's second theory of omission (failure to seek timely medical attention), the Court observes that "any causal dispute regarding the source of [the child's] initial injury necessarily would not apply to the subsequent failure to provide reasonable medical care." Majority Opinion at 561–62. I agree with that in part. Here is where I think I agree with the Court: Under the "unless" clause of Section 6.04(a), Appellant would have to show that her omission in failing to seek medical attention was "clearly insufficient" to cause whatever greater , incremental injury that may have occurred, beyond that which was caused by her husband in the initial assault.
But here, Appellant's husband's initial assault was also an obvious "but-for" cause of the separate, greater injury. So, for Appellant to obtain the concurrent causation instruction, she must have been able to point to evidence in the record that would permit the jury to rationally conclude that her husband's initial assaultive conduct would inevitably have caused the incrementally greater injury regardless of any medical intervention—and thus, that her omission in failing to obtain such medical care was "clearly insufficient" to cause that greater injury. Otherwise, she would not be entitled to a Section 6.04(a) instruction.
This was the same theory of omission that the court of appeals focused on in its opinion. Cyr , 630 S.W.3d at 386–87. It held that, because the most the medical experts could say was that it was "possible" that timely medical intervention "could" have mitigated the child's injuries, a rational jury might still have found that Appellant's failure to seek medical attention was "clearly insufficient" to cause the greater incremental injury, while her husband's conduct was "clearly sufficient." Id. at 387, 391. Under those circumstances, the concurrent cause provision Section 6.04(a), including the "unless" clause, would be invoked. I see no reason to second-guess that assessment. I therefore agree with the court of appeals that Appellant was entitled to a concurrent cause instruction on that theory of omission as well. IV. CONCLUSION
Indeed, Appellant may well have been entitled to separate application paragraphs to apply concurrent causation to the two discrete injuries that the Court today has identified: (1) the injury Appellant "caused" by failing to protect her child from the initial assault, and (2) the incrementally greater injury caused by her failing to seek medical attention. Moreover, that separate injuries are involved raises certain other potential anomalies as well—albeit anomalies that have not been raised by the parties in this case and are not before us in our present review. I do not, therefore, advocate that the case should be reversed on these bases, but only mention them in passing.
First, if the injury that is the object of the failure-to-protect allegation is different than the injury that is the object of the failure-to-seek-medical-attention allegation, then the State may well have drafted an indictment that suffers from duplicity. See George E. Dix & John M. Schmolesky, 42 Texas Practice: Criminal Practice and Procedure § 25:207, at 338 (11th ed. 2011) ("Duplicity also occurs if one count alleges several violations of the same penal statute. Whether a count is duplicitous under this rule may depend upon precisely what constitutes a single violation of one underlying penal statute."). Because injury to a child is a result-of-conduct offense, the allowable unit of prosecution is a function of how many injuries occurred. Nawaz , 663S.W.3d at 746–48. The first paragraph of Appellant's indictment, which combines both theories of omission, apparently alleges two discrete injuries, and therefore two offenses, at once. Such an indictment could arguably be subject to a motion to quash. See Tex. Code Crim. Proc . art. 21.24(b) ("A count may contain as many separate paragraphs charging the same offense as necessary, but no paragraph may charge more than one offense.").
Second, while it is true that jurors do not ordinarily have to attain unanimity with respect to the manner and means by which offenses are committed, here, the two manners and means ("failure-to-protect" and "failure-to-seek-medical-attention") would seem to pertain to discrete offenses: the initial injury, and the incrementally greater injury resulting from not obtaining medical treatment, respectively. Arguably, Appellant may have been entitled to an instruction to the jury that it could not convict her on either theory without first reaching unanimous agreement. Cf. Stuhler v. State , 218 S.W.3d 706, 719 (Tex. Crim. App. 2007) (requiring jury unanimity with respect to separate statutorily defined results under the injury to a child statute).
I would affirm the court of appeals’ judgment. A plain reading of the statute dictates as much. If the Legislature is dissatisfied with its handiwork, it is up to the Legislature to modify the statutory scheme. It is not this Court's job to ignore or tweak plain statutory language to suit its own sensibilities. I respectfully dissent.