Comment

The Committee had considerable difficulty formulating an acceptable approach to causation.

The Penal Code purports to provide for causation in criminal cases in section 6.04:

Tex. Penal Code § 6.04(a).

“Causation” vs. Responsibility. As an initial matter, Tex. Penal Code § 6.04’s terminology invites confusion. Despite the title—“Causation: Conduct and Results”—it does not explicitly provide for “causation.” Rather, it provides for what it terms criminal responsibility for a result.

The Committee considered the possibility that instructions on the law established by Tex. Penal Code § 6.04(a) might be put in terms of responsibility for a result rather than in terms of causing that result. It rejected this possibility because of concern that this would unnecessarily complicate the use of this law to explain requirements described by the Penal Code as ones of causation. For example, the basic provision for murder in section 19.02(b)(1) defines the offense as committed when a person “causes the death of an individual.” See Tex. Penal Code § 19.02(b)(1). The Committee thought it would be unwise to attempt to explain to juries that whether an accused has caused the death of an individual is determined by a body of law defining when an accused is “criminally responsible” for a result such as the death of an individual.

Pre-1974 Causation Law. Before the 1974 Penal Code, Texas statutes made no general reference to causation. Since the 1856 Penal Code, however, specific statutory provisions addressed the major problems of causation in homicide cases. The reported decisions involved almost exclusively homicide prosecutions and generally involved applications of the specific statutory provisions.

The major statutory provision, designated article 1202 before its repeal by the 1974 Code and reproduced in Wright v. State, 388 S.W.2d 703 (Tex. Crim. App. 1965), stated the following:

Wright, 388 S.W.2d at 706. Despite the arguable meaning of some of the statute’s terms, the Texas courts read the statute as consistent with a general rule that a defendant’s act was “the cause of [the victim’s] death” even if it was only one of several contributing causes of that death. Wright, 388 S.W.2d at 706 (“The destruction of life must have been occasioned by the act of appellant, but appellant is responsible if his act of shooting contributed to the death, though there were other concurring causes.”).

Article 1202 and its predecessors were recognized as “undoubtedly chang[ing] the rule of the common law, the theory of which was that he who caused the first injury should be held guilty, upon the theory that without the first injury no other would have followed, as resulting from the first.” Brown v. State, 38 Tex. 482, 487 (1873).

Under this new provision, juries were told that homicide defendants were to be acquitted if the juries found that, after the defendant inflicted the injury on which the prosecution was based, there was “gross neglect or manifestly improper treatment of the person injured” and that this, rather than the injury inflicted by the defendant, was “the” cause of death.

The Texas courts’ pre-1974 discussions used terms such as proximate causation, concurrent causes, and intervening causes, although these terms were not employed by the statutes. “[G]ross neglect or manifestly improper treatment of the person injured” was regarded as an intervening cause that, when it operated, eliminated proximate causation between the defendant’s conduct and the victim’s death. See, e.g., Wright, 388 S.W.2d at 706.

1974 Penal Code’s Approach. The legislature adopted what is now Tex. Penal Code § 6.04(a) instead of a proposal of a State Bar Committee that would have followed an approach similar to that of the Model Penal Code. See State Bar Committee on Revision of the Penal Code, Texas Penal Code: A Proposed Revision § 6.07 (Final Draft Oct. 1970). The Model Penal Code’s provision was the only statutory attempt in this country to articulate complete rules for causation. It did not purport to reflect existing law, however, but offered a fresh approach.

The Texas legislature’s 1974 approach was apparently based on language offered in the Final Report of the National Commission on Reform of Federal Criminal Laws in 1971 (hereinafter “Final Report”). That language first appeared in the Commission’s 1970 study draft.

The National Commission’s provision was clearly not offered as a comprehensive statement of causation law. Rather, it was designed to deal with only the limited situation of “concurrent causation”—when there is more than one cause of an occurrence, none of the causes is necessary, and more than one cause is sufficient. The National Commission’s working paper written by Harvard professor Lloyd Weinreb described the type of problems targeted by this product of the Commission’s efforts:

Lloyd Weinreb, Comment on Basis of Criminal Liability; Culpability; Causation; Chapter 3; Section 610, in 1 Working Papers of the National Commission on Reform of Federal Criminal Laws 105, 145 (1970).

The Commission apparently sought to articulate an approach to these “concurrent causation” situations that avoided the Model Penal Code’s emphasis on “but for” causation as sufficient.

The Commission’s draft would provide that in these “concurrent causation” situations causation may be found “unless the concurrent cause was clearly sufficient to produce the result and the conduct of the accused clearly insufficient.” Final Report section 305.

The Comment to the National Commission’s proposal notes that the proposed section “may not be useful in all cases where causation must be explained, [but] it is intended to be an aid to uniformity and clarification whenever it does apply.” Final Report section 305. The Commission’s working paper noted that an early draft of the Final Report’s approach “at best, offers no guidance in the case of sequential, as opposed to concurrent causes.” Weinreb at 146.

Apparently three other jurisdictions adopted the Final Report’s approach of providing that, in these concurrent situations, causation may be found. See Ark. Code § 5‑2‑205; Me. Rev. Stat. tit. 17-A, § 33; N.D. Cent. Code § 12.1-02-05.

The Texas legislature took the language of section 305 of the National Commission’s final draft and used it in what became a provision much different from the commission’s section 305. The Texas legislature added a general rule at the beginning: “A person is criminally responsible if the result would not have occurred but for his conduct . . . .” Tex. Penal Code § 6.04(a). It then, in the second portion of section 6.04(a), used the final draft’s section 305 language to provide for when—in certain concurrent causation situations—a person would be criminally responsible for a result.

Unlike the Final Report’s section 305 and provisions in most other jurisdictions based on section 305, section 6.04(a) purports to be a comprehensive causation provision. Apparently the only other jurisdiction to take this approach is Alabama. See Ala. Code § 13A-2-5(a).

Section 6.04(a) as Exclusive “Causation Law.” The initial question for the Committee was whether Tex. Penal Code § 6.04(a) constitutes the only causation law applicable to causation issues presented in criminal litigation.

Section 6.04(a) might be treated as addressing only limited situations—those in which two causes operate concurrently in bringing about a result. In Hutcheson v. State, 899 S.W.2d 39 (Tex. App.—Amarillo 1995, pet. ref’d), for example, the evidence showed that the victim was struck by two shots, one fired by Hutcheson and the other by a police officer. Expert testimony was that “either wound sufficed to cause death.” The court of appeals held that the evidence did show the necessary “but for” causation. Further, no jury instruction under section 6.04(a)’s concurrent causation provision was necessary, because no evidence showed that the defendant’s conduct was clearly insufficient to produce the result—the victim’s death. Hutcheson, 899 S.W.2d at 42.

So section 6.04(a) might be read as simply a directive that, in most concurrent causation cases such as Hutcheson, the only real question for the jury is whether the evidence proves “but for” causation. Seldom will the evidence permit a conclusion that the cause attributable to the accused is clearly insufficient alone to produce the result.

But the court of criminal appeals appears to have held that section 6.04(a) and only the law in that provision governs situations that involve what the National Commission’s working paper calls “sequential causation.”

In Thompson v. State, 93 S.W.3d 16 (Tex. Crim. App. 2001), it was found that Thompson shot the victim in the tongue. Testimony indicated that without medical attention, the wound would have been fatal. The victim did receive medical attention in the form of surgery. During the surgery, the physicians failed to secure Thompson’s airway, and she slipped into a coma. She became brain dead and died several days after life support was removed.

At trial, the Thompson jury was instructed in rather general terms under section 6.04(a). The instruction did not specify any possible concurrent cause but did tell the jury to acquit Thompson if it found “the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant clearly insufficient.” Thompson, 93 S.W.3d at 22. On appeal, Thompson claimed error in “denying his requested charge ‘on the law of intervening medical care as a cause of death.’ ” Thompson, 93 S.W.3d at 21. Rejecting Thompson’s reliance on pre-1974 case law, the court found no error. The “controlling statute,” it explained, is section 6.04(a), “governing concurrent causation.” Thompson, 93 S.W.3d at 22.

The opinion in Thompson does not make clear whether the evidence showed that the gunshot and the airway obstruction operated together to cause death or whether the situation involved surgery that was successful (in stopping the effect of the gunshot) but nevertheless killed the patient (by obstructing her airway). Apparently the distinction was not regarded as important. Thus, section 6.04(a) applied whether the situation involved concurrent causes (the gunshot and airway obstruction acting together) or sequential causes (the airway obstruction causing death after and because of the earlier gunshot).

Thompson strongly suggests that there is no other causation law that a defendant might invoke to obtain a jury charge on proximate causation in any sense of that term. It also suggests no basis for a charge on “intervening” causes or factors that would or might under certain circumstances render simple “but for” causation insufficient on which to base liability.

In contrast, the court of criminal appeals in Williams v. State, 235 S.W.3d 742, 763–69 (Tex. Crim. App. 2007), hinted that section 6.04(a) may not fully state Texas criminal causation law.

Williams was convicted of recklessly causing serious bodily injury to her two children. The evidence showed she left them in the care of Bowden, who permitted the -premises to catch on fire, causing the children’s death. After concluding the evidence failed to support the jury’s finding of recklessness, the court of criminal appeals held that the evidence also failed to support the jury’s finding that Williams’s actions caused the death of the children. It appeared to reason that the actions of Bowden were an unforeseeable “intervening cause” and as a result the defendant’s actions were not a “but for” cause of the result as required by section 6.04(a). Williams, 235 S.W.3d at 764–65.

Williams suggests that despite the lack of any provision for this in section 6.04(a), Texas causation law includes some requirement of foreseeability: “Obviously, some element of foreseeability limits criminal causation just as it limits principles of civil ‘proximate causation.’ ” Williams, 235 S.W.3d at 764 (citing an explanatory note to the Model Penal Code). But note the dissent at Williams, 235 S.W.3d at 772 (Keller, P.J., joined by Meyers, J., dissenting) (“ ‘Foreseeability’ is not expressly a part of Texas’s criminal law of causation, and I see no need at this time to import it as an aid in determining ‘but-for’ causality.”). Judge Cochran, author of the Williams opinion, further explained her view of concurrent causation in Otto v. State, 273 S.W.3d 165, 172–77 (Tex. Crim. App. 2008) (Cochran, J., dissenting).

Williams acknowledges in a footnote that section 6.04(a) “[t]aken literally . . . would imply that but-for causation alone is ordinarily sufficient for liability, subject only to qualification with respect to concurrent causes.” Williams, 235 S.W.3d at 767 n.66 (quoting Model Penal Code section 2.03 at 265 n.24). Thompson suggests that the court of criminal appeals would read section 6.04(a) in this literal manner. Williams casts some doubt on this.

Alternative Causation. One aspect of Texas causation law does appear to be clear. A defendant’s contention may be what the court of criminal appeals has called “alternative causation.” Barnette v. State, 709 S.W.2d 650 (Tex. Crim. App. 1986).

The state’s theory in an intentional murder case may be that the defendant shot the victim, killing him. The defendant’s contention may be that the defendant’s shot did not hit the victim but a shot fired by a third party hit the victim and caused his death. The defendant’s contention does not raise concurrent causation under Tex. Penal Code § 6.04(a), because the defendant is not acknowledging that the defendant’s actions in any way contributed to causing the result. The defendant is arguing that the result is attributable entirely to an alternative cause.

Barnette makes clear that an alternative-cause contention merely negates one element of the state’s case. Thus, a defendant has no right to an instruction on the defensive theory. Barnette, 709 S.W.2d at 652.

It appeared to the Committee that a charge on alternative causation, under more recent case law, might be a prohibited comment on the evidence. Consequently, it does not recommend such a charge.

Possible Concurring Cause. What is—or what might a jury consider—a concurring cause requiring a jury charge on Tex. Penal Code § 6.04(a)’s concurring causation rule? In Robbins v. State, 717 S.W.2d 348 (Tex. Crim. App. 1986), in which the state’s theory was that the defendant’s intoxication caused the death of the victim, the court held that the defendant’s “exhaustion” could not be a concurrent cause. “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 (citations omitted).

In many jurisdictions, a preexisting condition of the victim cannot affect the chain of causation between the defendant’s act and a particular injury to the victim of a criminal assault. Yet one Texas court has indicated that such preexisting conditions of the victim triggered a right on the part of the defendant to a concurrent cause instruction. Laird v. State, No. 06-07-00171-CR, 2008 WL 2690073, at *3 n.4 (Tex. App.—-Texarkana July 8, 2008, no pet.) (not designated for publication).

Defendant’s Conduct “Contributing to” Result. In Robbins, an involuntary manslaughter prosecution, the court of criminal appeals held that the trial court erred by telling the jury in the abstract that the law required proof that the defendant’s intoxication “caused or contributed to” the death of the victim. This would have been permissible under pre-1974 law. But under section 6.04(a), a showing that the defendant’s conduct contributed to causing a required result is qualified by the concurrent causation provision.

Under section 6.04(a), Robbins held, it is no longer Texas law that the defendant’s conduct causes a result if it merely contributes to the occurrence of that result. Now the law limits responsibility for a result to situations in which the evidence proves at least minimal “degree of contribution” to the occurrence of the result. Failing to make clear to the jury that the law requires a certain degree of contribution to the causing of the result permits conviction under a lesser standard than the law provides. Robbins, 717 S.W.2d at 352.

Robbins held as it did despite the court’s conclusion that the facts raised no question regarding concurrent causation and no instruction on concurrent causation should have been given.

Under Robbins, the Committee concluded, a trial court would err in simply instructing a jury that the defendant is “criminally responsible” for a result if “but for” the defendant’s conduct, “operating either alone or concurrently with another cause,” the result would not have occurred.

Robbins, however, simply does not make sense. The only possible operative factors were the defendant’s intoxication and his exhaustion. His exhaustion, the court concluded, could not be a concurrent cause. Had the jury been told about concurrent causation, it should have found that inapplicable.

The Committee recognized that the court of criminal appeals might regard Robbins as not reflecting current law or might read it differently than the Committee read it. Nevertheless, the Committee concluded it needed to respect what appears to be the law under Robbins.

Committee’s Approach. The Committee had concern that Tex. Penal Code § 6.04(a) may not provide a clear and principled approach to resolving causation issues posed by criminal prosecutions. It was particularly concerned that the statute appears to make no provision for sequential causation situations. If somehow the statute can be construed to embody comprehensive causation law for criminal cases, the Committee was not confident that this law could be formulated into a jury charge that jurors would both understand and be willing to apply.

Where section 6.04(a) applies, Robbins suggests that it provides a vehicle for determining when a defendant’s conduct has been shown to have made a sufficient “degree of contribution” to the occurrence of a required result to justify criminal liability. The Committee was not persuaded that the statute in fact does this. In any case, the Committee had considerable difficulty writing an actual jury instruction that would permit juries to make principled decisions on whether defendants’ conduct contributed to the causing of injury or damage to a “degree” justifying criminal responsibility.

Nevertheless, given the case law—and particularly Thompson—the Committee proceeded on the assumption that the only causation law on which juries should be instructed is that contained in section 6.04(a).

The Committee considered suggesting that, in situations requiring no explanation of concurrent causation possibly relieving the defendant of responsibility, the jury be told the defendant’s conduct need not be the sole or only cause of the result. Rather the defendant is “criminally responsible” for a result if “but for” the defendant’s conduct, “operating either alone or concurrently with another cause,” the result would not have occurred.

Robbins, however, seems to bar such an approach.

The Committee was persuaded that under the case law, section 6.04(a) concurrent causation law is the only qualification of a general rule that “but for” causation is sufficient for causation in criminal law. How concurrent causation law must or may be applied is considerably uncertain. Given this uncertainty, the Committee concluded that trial judges should avoid including concurrent causation instructions in jury charges if there is no reason to believe it is applicable. The risk of confusing juries is simply too great.

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 it to the facts. Nugent v. State, 749 S.W.2d 595 (Tex. App.—Corpus Christi–Edinburg 1988, no pet.) (conviction for involuntary manslaughter reversed for failure to apply concurrent causation to facts). The case law, however, is not specific regarding how abstract concurrent causation law is to be applied when it must be applied.

The Committee suspects that trial judges are sometimes so confused by section 6.04(a) that they give an abstract discussion on concurrent causation out of an abundance of caution. Unable to determine how specifically concurrent causation might apply to the facts of the cases, however, they do not seriously attempt to apply the abstract law to these facts.

More rigorous efforts to apply concurrent causation law to the facts may lead to conclusions that this law simply is inapplicable. Such a conclusion means that neither an abstract nor an applied version of that law should be included in the jury charge. Where such instructions are in fact warranted, the Committee has set out optional instructions in, for example, CPJC 19.2 and in CPJC 49.24.