Page 36 - TPA Journal November December 2023

was picked up. be held liable for her failure to act, Appellant
requested a jury instruction on concurrent causa-
Pediatric ophthalmologist Dr. Curt Cockings and tion. The trial court denied the request and, with
pediatrician Dr. Patty Patterson testified to the respect to causation, required the jury to find:
severity of the force required to cause such exten- “…by this failure to protect [J.D.] or by this fail-
sive injuries to J.D and the mechanism of injury. ure to provide medical care to [J.D.] [Appellant]
They found that J.D. was shaken powerfully caused bodily injury to [J.D.].” Appellant was
enough that her brain struck the inside of her skull, convicted by a jury and sentenced to fifteen years’
causing extensive subdural hemorrhaging, retinal imprisonment in the Institutional Division of the
hemorrhaging, brain swelling, and retinal detach- Texas Department of Criminal Justice.
ment. Dr. Cockings concluded the injuries would
not have been caused by a “hard bowel move- On direct appeal, Appellant raised two grounds
ment,” a short fall, being squeezed, or being for review: (1) the trial court erred when it refused
struck. Dr. Patterson further concluded that imme- to instruct the jury on concurrent causation, and
diate medical treatment could have reduced the (2) the evidence at trial was legally insufficient to
extent of the damage. support a conviction under § 22.04 of the Texas
Penal Code. With respect to her first issue,
Based on the medical findings, Deputy Kissick Appellant argued concurrent causation is a defen-
obtained an arrest warrant for both parents. Justin sive issue raised by the facts of this case, entitling
and Appellant were arrested on July 2, 2013. In an her to a jury instruction. She argued, with respect
interview after her arrest, Appellant gave a brief to her failure to prevent the child’s injuries, that
statement to police indicating she was unaware of she was neither present nor aware of Justin’s con-
Justin’s prior domestic violence charges or what duct towards the child for purposes of preventing
would have caused J.D.’s injuries other than the his harmful act. In response to the State’s theory
constipation she previously discussed with Deputy that Appellant failed to provide adequate medical
Kissick. Appellant was charged under Texas Penal care, Appellant argued there was some evidence
Code § 22.04 by two paragraphs. In the first para- in the record indicating the delay in treatment had
graph, the State alleged Appellant “recklessly, by no adverse effect on J.D.’s injuries. She conclud-
omission, cause[d] serious bodily injury” to J.D. ed that her burden to provide evidence that her
when she failed to protect the child from being acts alone were clearly insufficient to cause the
“grabbed, squeezed or shaken by Justin Cyr, or by harm was satisfied, that Justin’s act alone was
failing to seek reasonable medical attention” clearly sufficient alone to cause the harm, and
where she had a duty to protect and provide med- therefore the trial court erroneously refused her
ical care. The second paragraph differed solely request for a jury instruction on concurrent causa-
with respect to Justin’s actions, alleging Appellant tion. The Eleventh Court of Appeals agreed and
failed to protect J.D. from “being struck against a held that Appellant’s entitlement to an instruction
hard surface by Justin,” and subsequently failed to on the issue was predicated on Appellant’s ability
provide medical care. At trial, Appellant’s defen- to produce some evidence that her actions, stand-
sive theory pointed a finger at Justin, arguing ing alone, were “clearly insufficient” to produce
Appellant should not be held liable for his actions the harm to J.D. . Relying heavily on its decision
because, after all, J.D.’s injury would not have in Wright, the court of appeals found “some evi-
occurred in the absence of Justin’s violent abuse. dence” Appellant’s conduct did not cause aggra-
Appellant further argued that her failure to procure vation of J.D.’s injury and was otherwise insuffi-
medical treatment did not worsen J.D.’s injury, nor cient to cause the resulting injury. Id. (emphasis in
was Appellant aware of the risk of injury to the original). It found Appellant entitled to an instruc-
child by virtue of Justin’s presence in the home. tion on concurrent causation. Under a “some

harm” analysis, the jury’s inability to consider the
Based in part on her argument that she should not

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