Comment

The language instructing the jury on causation in the intoxication manslaughter and intoxication assault instructions follows the approach outlined in chapter 1 of this product and CPJC 49.1 through CPJC 49.10.

The language regarding causation does not contain a definition of a concurrent cause. Nor does it explain what is meant by several causes acting concurrently. Neither statutory nor case law provides sufficient guidance about how these matters could be defined.

As discussed previously, the Committee encountered considerable difficulty with causation as a general matter. Two of the offenses addressed in this chapter—intoxication manslaughter and intoxication assault—required the Committee to struggle even more intensely with causation under Texas law.

Both of these offenses require proof that the accused, while engaging in certain specified activities, “by reason of [the defendant’s] intoxication causes” some harm to the victim. Intoxication assault requires that the harm be serious bodily injury, and intoxication manslaughter requires that it be death.

For several reasons, causation issues in prosecutions for these offenses arise more frequently and present difficult issues more often than with other offenses requiring proof of results.

The fact situations involved—automobile accidents—offer more opportunity for a defendant to argue that factors other than the defendant’s conduct contributed to the result. Further, in reality, the causal link to be proved is more complex than in most other cases: the state must prove that the defendant’s intoxication influenced or “caused” the defendant’s conduct and that this conduct then “caused” the result.

Additionally, in many other offenses requiring proof that the accused caused a result, the requirement of a culpable mental state narrows the scope of liability. Intoxication manslaughter and intoxication assault, in contrast, require no culpable mental state. Thus the requirement of causation becomes more attractive as a defense target.

There is considerable existing law on causation issues in prosecutions for these offenses, although almost all of that law is under intoxication manslaughter or its statutory predecessor.

Under the pre-1974 manslaughter law, the state was entitled to have the jury told that the state could prevail on proof that the defendant’s intoxication contributed to the victim’s death. The defendant was entitled to have the jury told that his intoxication did not cause the victim’s death as required by the crime if, although he was intoxicated, he behaved as he would have if he had been sober. Long v. State, 229 S.W.2d 366, 367 (Tex. Crim. App. 1950) (jury instructed “if you find and believe that under the same or similar circumstances a reasonable prudent person who was not intoxicated nor under the influence of intoxicating liquor could not have avoided the collision, or if you have a reasonable doubt thereof, you will find the defendant not guilty”); Fox v. State, 165 S.W.2d 733, 735 (Tex. Crim. App. 1942) (jury instructed “that [if] after seeing [the victim], in an effort to avoid striking him, the defendant thereafter operated his automobile in the same manner that it would have been operated by a person not intoxicated . . . then . . . it would be their duty to acquit the defendant, or if they had a reasonable doubt thereof to acquit him”).

The 1974 Penal Code clearly changed this. Causation under the intoxication manslaughter statute is now controlled by the general causation provision, Tex. Penal Code § 6.04(a).

As a matter of substantive law, the state under the Penal Code still must prove not only that the defendant was intoxicated and while intoxicated caused the death of the victim but also that the intoxication caused the death of the victim. Daniel v. State, 577 S.W.2d 231, 233 (Tex. Crim. App. 1979) (“The death must be the result of the intoxication and proof must be made and submitted to the jury of that thing which worked a causal connection between the intoxication and the death.” (quoting Long)). Accord Hardie v. State, 588 S.W.2d 936, 939 (Tex. Crim. App. [Panel Op.] 1979); Garcia v. State, 112 S.W.3d 839, 852–54 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

Specifying Conduct of Defendant on Which State’s Theory Is Based. An initial problem in translating Texas Penal Code section 6.04(a) into an intoxication manslaughter or intoxication assault jury instruction is that section 6.04(a) is phrased in terms of the defendant’s being responsible when the defendant’s conduct is the cause of the result. Intoxication assault and intoxication manslaughter, however, require that the instruction address whether the accused’s intoxication—a “condition,” rather than conduct—had a sufficient impact on events to render the defendant responsible for the death. In reality, of course, what the law means is that an aspect of the defendant’s conduct caused by his intoxication must have caused the result.

The Committee concluded that the instructions under current law should convey the substance of what was communicated to juries under prior law: if the defendant’s conduct and the sequence of events would have been the same had the defendant not been intoxicated, the defendant did not by intoxication cause the death of or injury to the victim.

Section 6.04(a) indicates the instructions should refer to “the conduct of the [accused].” Tex. Penal Code § 6.04(a). The definitions of intoxication manslaughter (section 49.08) and intoxication assault (section 49.07) indicate that the instruction should refer to the accused “by reason of [the defendant’s] intoxication causes” death or serious bodily injury. Tex. Penal Code §§ 49.07, 49.08.

Consequently, the Committee drafted the instructions to focus on whether the result—death or serious bodily injury—was caused by the part or aspect of the accused’s conduct that was in turn caused or determined by the accused’s intoxication.

Instructions If Concurrent Causation Not Raised. If the facts of the case do not raise concurrent causation, a trial judge does not err (or at least does not reversibly err—the opinion is not clear) in giving an abstract instruction containing all of section 6.04(a)’s causation law, including that portion applying to concurrent causation. Hughes v. State, 897 S.W.2d 285, 297 (Tex. Crim. App. 1994). See also McKinney v. State, 177 S.W.3d 186, 201–02 (Tex. App.—Houston [1st Dist.] 2005), aff’d after review on other grounds, 207 S.W.3d 366 (Tex. Crim. App. 2006).

But at least sometimes a trial court errs by instructing the jury only in the abstract portion of the instruction that the state can meet its burden of persuasion by proving that the defendant’s intoxication contributed to the death of the victim. This is because that approach, permissible under pre-1974 law, is barred by section 6.04(a)’s explicit provision for concurrent causation. Robbins v. State, 717 S.W.2d 348, 350 (Tex. Crim. App. 1986) (trial court erred by telling jury abstract law required proof that defendant by reason of intoxication “caused or contributed to” death of victim).

It would seem to follow that a trial court errs under Robbins by telling the jury—in the terms of section 6.04(a)—that the defendant is responsible for the victim’s death or injury if that death or injury would not have occurred but for the defendant’s intoxication, “operating either alone or concurrently with another cause.” Robbins, 717 S.W.2d at 351. If the instruction mentions concurrent causation, Robbins holds, it must also make clear the limits on concurrent causation even if the facts do not raise concurrent causation.

Robbins assumed, first, that prior law required only that the intoxication-induced conduct of the defendant in some unqualified way contributed to causing the death or serious bodily injury. It assumed, second, that section 6.04(a)’s concurrent cause provisions imposed a minimal requirement regarding “the degree of contribution” the intoxication-induced conduct of the defendant must make to causing the death or serious bodily injury. Thus, whenever causation issues of any sort arise, juries should not be told that other factors or causes may also operate to cause the result without also being told about the concurrent causation law that defines for any of these situations the degree of contribution the defendant’s conduct must have made.

Distinguishing Alternative Causation. If the defendant’s argument is that the death or injury to the victim is attributable to something that is neither the defendant’s conduct specified by the state as the basis for its theory nor a concurrent cause, the argument must be “alternative” causation.

A defendant’s contention that the events were influenced by his exhaustion but not his intoxication, Robbins held, does not raise concurrent causation. This is because “[a] concurrent cause is ‘another cause’ in addition to the actor’s conduct, an ‘agency in addition to the actor.’ ” Robbins, 717 S.W.2d at 351 n.2.

Apparently, however, a defendant can argue that he would have driven exactly as he did even if he was sober, and thus his intoxication is not a “but for” cause of the death or injury arising from the accident. It seems as though such a defendant can argue that his exhaustion is an alternative cause. This is not, however, to be reflected in the jury instruction, in either the abstract portion or the application portion.

Determining Whether Concurrent Causation Is Raised. In theory, concurrent causation is raised and a jury instruction on it is appropriate if the evidence would permit the jury to find all of the following:

1. The facts show something that can constitute a “concurrent cause.”
2. The death or injury to the victim was caused by intoxication-induced conduct of the defendant and this concurrent cause was “operating . . . concurrently.”
3. The concurrent cause was clearly sufficient to produce the death or injury to the victim.
4. The intoxication-induced conduct of the defendant was clearly insufficient to produce the death or injury to the victim.

The most difficult questions are how to decide elements 3 and 4. Nugent v. State, 749 S.W.2d 595, 596–97 (Tex. App.—Corpus Christi–Edinburg 1988, no pet.), provides an example. Nugent was operating a vehicle on Alameda Street in Corpus Christi, Texas, when it collided with another vehicle being operated by Marcus Meza. The Meza vehicle had been traveling in the opposite direction on Alameda and attempted a left-hand turn into a convenience store parking lot at the time of the wreck. Three passengers in the Meza vehicle were killed. There was evidence that Nugent was intoxicated and that he was driving at a speed considerably over the posted limit.

Nugent’s intoxication could have affected his conduct in at least two ways: It could have caused him to speed. Or it could have so dulled his reflexes that he was unable to avoid the Meza vehicle when it turned in front of his car, although he would have been able to avoid it if he had been sober.

Clearly Nugent might have argued alternative causation—his conduct, insofar as it was induced or caused by intoxication, did not affect the events, which were caused only by Meza’s left turn.

The court of appeals stated that “[t]here was . . . evidence from which the jury could conclude that Meza’s conduct concurrently contributed to the wreck.” Nugent, 749 S.W.2d at 597. Assuming that is correct, how should the trial judge determine whether the jury could find that Meza’s conduct alone was clearly sufficient to cause the deaths? His left turn would not have caused the deaths had not some vehicle been approaching in a manner that did not permit the driver to avoid Meza. If Nugent’s intoxication caused him to speed and thus “but for” his intoxication he would not have been driving his vehicle at that particular spot, would this be sufficient?

How should the trial judge determine whether Nugent’s intoxication-induced conduct was clearly insufficient to produce the deaths? His speeding and reduced reflexes would not have caused any harm to anyone had he not encountered some impediment to proceeding on the street.

The Committee was unable to discern from the numerous decisions any guidelines for making these difficult determinations. Nevertheless, trial judges must make them to determine, under present law, whether jury instructions should include coverage of concurrent causation.

Instructing on Concurrent Causation When Such Instruction Is Required. If the facts raise concurrent causation under section 6.04(a), a trial court must not only instruct on concurrent causation in the abstract but also apply that law to the facts. Nugent, 749 S.W.2d 595 (conviction for involuntary manslaughter reversed for failure to apply concurrent causation to facts).

In Robbins, the court of criminal appeals referred to the involuntary manslaughter instruction in the ninth edition of Texas Criminal Forms and Trial Manual as “a proper charge.” See Robbins, 717 S.W.2d at 352 n.3. But this charge did not apply causation to the facts at all. What Robbins apparently meant was that the instruction properly set out causation law in the abstract. See 8 Michael J. McCormick et al., Texas Practice Series: Criminal Forms and Trial Manual § 93.11 (9th ed. 1985).

Concurrent causation under section 6.04(a), the Committee concluded, is “[a] ground of defense in a penal law that is not plainly labeled in accordance with [chapter 2 of the Penal Code].” Tex. Penal Code § 2.03(e). Thus, under Texas Penal Code section 2.03(d), (e), it is treated as a “defense,” and “the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.” See Tex. Penal Code § 2.03(d)(e).

Pursuant to the general approach described in chapter 1 of this product, the Committee drafted the language instructing the jury on concurrent causation in the intoxication manslaughter and intoxication assault instructions in terms of what the state must prove as a procedural result of the defendant’s having raised the issue.

Case law provides little in the way of examples of careful applications of concurrent causation to the facts of particular cases. Nugent is something of an exception. Defendant Nugent argued that he was relieved of responsibility for the death of the victim because Meza, the driver of the other car involved in the fatal collision, made a left turn into the path of the defendant’s car and in doing so failed to yield the right of way to the defendant. The trial court instructed the jury on section 6.04(a) in abstract terms. Defense counsel unsuccessfully sought the following application instruction:

Nugent, 749 S.W.2d at 597. The court of appeals apparently regarded this instruction as appropriate. See Nugent, 749 S.W.2d at 598. The Committee agreed and used it as the basis for its language instructing the jury on concurrent causation in the intoxication manslaughter and intoxication assault instructions.

The instructions that follow reflect the Committee’s best efforts to explain how section 6.04(a)’s provisions should be applied to this unusually troublesome area. If in fact section 6.04(a)’s language was developed to address a very limited type of situation in causation law, applying it here across the board cannot be expected to provide satisfactory results.