Page 39 - TPA Journal November December 2023

J.D. from the thing likely to cause the harm. wise would undermine the intention of the legisla-
Appellant’s contention that she was ignorant of ture, permitting criminal defendants charged with
the abuse on the date of the incident does nothing omission to blame another person, thing, or condi-
to controvert causality, and only points to some tion, and leaving Texas Penal Code § 22.04 and §
evidence, which the jury did not find persuasive, 6.04 bereft of their plain meaning.
that she did not possess the requisite mental state
in order to be found guilty of reckless injury to a Appellant’s position readily lends itself to an anal-
child. Where she contests an essential element of ogy with our decision in Williams. Williams v.
the State’s case and does not raise facts sufficient State, 235 S.W.3d 742 (Tex. Crim. App. 2007). In
for a concurrent cause instruction, her argument Williams, we expressed distaste for expansive
falls under Barnette’s alternative-causation frame- views on causation, fearing that courts would hold
work. The trial court did not err by refusing to give parents liable for any action which led to the
an instruction which would have asked the jury to child’s harm including “meeting [the other parent],
acquit Appellant if they found one of the essential having an intimate relationship with him, bearing
elements of the State’s case, that Justin did in fact [the children], . . .and so forth.”
injure the child when Appellant failed to protect We then recognized “some element of foresee-
h e r . ability limits criminal causation just as it limits
Thus, we find Appellant is not arguing concurrent principles of civil ‘proximate causation.’” Core
causation, but only alternative causation under the tenets of civil proximate cause hold a tortfeasor
guise of concurrent causation. The jury charge liable for his acts or omissions when “criminal
clearly demanded a contrary result if it found conduct is a foreseeable result of such negligence.”
Appellant unaware of the circumstances creating a
As stressed above, the jury in this case was
risk of harm to J.D. After all, the very essence of a required to find Justin’s actions a foreseeable con-
recklessness offense is Appellant’s conscious sequence of Appellant’s omission by virtue of the
appreciation of a substantial risk of harm.
definition of recklessness. We recognized the same
Factually, the harm to J.D. would not have connection in Williams, which primarily centered
occurred, if, instead of asking that Justin “stop on Williams’s culpability with respect to the acci-
hurting the baby,” Appellant had removed the chil- dent injuring the children, rather than whether her
dren from Justin’s presence, alerted law enforce- act of leaving the children with her boyfriend fac-
ment, or otherwise taken action to prevent harm tually caused the harm to the children. No party to
to J.D.7 “But for” Appellant’s failure to act on her the Williams case contested the fact that
duty to protect her child, J.D. would not have suf- Williams’s actions in leaving the children with her
fered such horrific abuse. Appellant concedes such boyfriend factually caused the harm. Id. at 764.
a failure to protect, asking only whether she pro- The same is true in this case; Appellant’s failure to
duced some evidence that Justin’s conduct was a remove the children from a known danger allowed
concurrent cause which was independently, suffi- harm to occur.
ciently harmful by virtue of evidence indicating he
The distinction is evident: while Williams could
abused the child in the living room while she was not have foreseen the series of unfortunate events
in the kitchen and ambiguous evidence regarding which led to a dwelling fire killing her children
whether the children notified Appellant of the because there was no evidence suggesting he was
abuse. Her presence in the kitchen is irrelevant to
“an incompetent caretaker,” an avalanche of evi-
this question; Appellant’s awareness of the ongo-
dence pointed to Appellant’s knowledge of Justin’s
ing abuse was provided for in the nature of the ongoing abuse of J.D. when he was present in the
offense and is unrelated to causality insofar as it home. Foreseeability is an implicit requirement
merely contests mental culpability. To hold other-

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