Page 37 - TPA Journal November December 2023

issue of concurrent causation despite the defense’s an action, an omission is punished only when
theory of the case, which centered on Justin’s cul- there is “a corresponding duty to act.” Section
pability improperly denied Appellant presentation 22.04 of the Texas Penal Code is one of those pro-
of her theory of the case. The appellate court thus visions. By its terms, § 22.04 punishes an individ-
sustained Appellant’s first issue, reversing the ual who “intentionally, knowingly, or recklessly
judgment of the trial court. by omission, causes to a child…serious bodily
injury.” Injury-to-a-child offenses under § 22.04
In addressing Appellant’s second issue, and are “result oriented” and “requir[e] a mental state
despite having found “some evidence” supporting that relates not to the specific conduct, but to the
Appellant’s argument that her conduct alone result of that conduct.”
would have been “clearly insufficient” to cause
the harm to J.D., the court of appeals found the Thus, to prove injury to a child by omission under
evidence presented at trial sufficient to permit a § 22.04, the State must show a person: (1) “inten-
jury to find both Appellant’s omissions caused tionally, knowingly, or recklessly,” (2) “by omis-
serious bodily injury to J.D. beyond a reasonable sion,” (3) “cause[d] to a child,” (4) “serious bodi-
doubt. ly injury; serious mental deficiency, impairment,
or injury; or bodily injury.”
The State petitioned this Court, arguing concur-
rent causation is wholly inapplicable to omission Appellant does not challenge the fact that Justin
offenses under § 22.04 or otherwise is not raised inflicted serious injury on J.D. which caused her
by the facts of this case. The State complains that to suffer irreparable brain damage. Neither does
a concurrent causation instruction, if offered in she challenge the fact she failed to prevent it from
omission cases, would operate to absolve occurring and failed to provide reasonable med-
Appellant of liability by virtue of the mere fact her ical care after the fact. Nor does Appellant contest
crime was an omission rather than an act. In her duty to act under § 22.04(b) as J.D.’s parent.
response, Appellant argues omission offenses are Parents stand in a special relationship to their chil-
appropriately addressed by the reasoning con- dren and have statutory duties including providing
tained in § 6.04 on concurrent causation, as it pre- their children with food, shelter, or other necessi-
vents a criminal defendant from facing liability ties including medical care and protection from
where there are several actors and the defendant’s harm. TEX. FAM. CODE § 151.001(a)(2–3). The
omissions are “clearly insufficient” to result in the sole remaining issue is Appellant’s entitlement to
harm. Because Appellant points to no evidence a jury instruction on concurrent causation.
relevant to a concurrent causation instruction and
The scope of causation under the Texas Penal
instead argues alternative cause, we reverse the
Code is broad, allowing courts to find causation
judgment of the court of appeals and affirm the
judgment of the lower court. where “the result would not have occurred but for
[the] conduct, operating either alone or concur-
… rently with another cause.”

The State contends Appellant is not entitled to an The breadth of causation under § 6.04 results from
instruction on concurrent causation by the very the differences between civil and criminal law.
nature of injury-to-a-child-by-omission offenses Unlike tort law in which causation functions as a
under Texas Penal Code § 22.04. Inclusion of an litmus test for fairness, causation in criminal law
instruction on the defensive issue requires the is limited by the culpability requirement. Model
defendant to demonstrate that there is evidence Penal Code treats but-for causation as the exclu-
supporting it. sive meaning of ‘causation’ in the criminal law.
The Code treats matters of ‘proximate causation’
contrast to the majority of crimes which proscribe as issues relating instead to the actor’s culpabili-

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