Page 40 - TPA Journal November December 2023

for causation that criminal law addresses through Justin’s act was a concurrent cause of her failure to
culpability. provide medical care for J.D.9 Section 22.04(a) is
a “result of conduct” offense; where the allegation
Thus, evidence contesting such foreseeability, as is a failure to provide medical care, the result must
in Williams, is evidence refuting mens rea. flow from that conduct. As we noted in Jefferson,
Foreseeability in the instant case was proven by we do not require jury unanimity regarding the
virtue of the jury’s finding of recklessness, and conduct constituting the “means” in injury to a
the sufficiency of the evidence on that point, hav- child cases under § 22.04 where the injury is nev-
ing been upheld by the court of appeals, is not ertheless caused by such act or omission. Jefferson
before us. When the State proved the necessary v. State, 189 S.W.3d 305, 311–12 (Tex. Crim. App.
mens rea, it likewise proved “proximate causa- 2006). Both means alleged, however, must satisfy
tion” as that term is used in the civil counterpart the “but-for” causal connection with the result.
to criminal causation.
Here, the State alleged that both Appellant’s fail-
Further, had Williams alleged concurrent causa- ure to prevent injury and failure to provide med-
tion principles absolved her of liability by virtue ical care caused the child’s injuries. Both must
of her boyfriend’s simultaneous acts in inadver- have been a “but-for” cause of the resulting harm,
tently burning the home, this Court would be and both are analyzed separately for purposes of
faced with an identical dilemma. Thus, the confu- concurrent causation. The fact Justin injured the
sion confronted in this case extends not only to child at the same time Appellant failed to prevent
omission offenses but likewise appears with the injury does nothing to controvert the causal
respect to a charge involving an affirmative act. relationship between Appellant’s failure to pro-
The State’s contention that the conflict in this case vide medical care and the injury.
is confined to omission cases is therefore
unfounded. Our conclusion likewise comports Further, because injury-to-a-child offenses are
with the reasoning of the American Law result-oriented, § 22.04 requires the State to prove
Institute’s Model Penal Code, on which the Texas not only that an individual failed to provide rea-
Penal Code is based. Under the Model Penal sonable medical care, but that doing so caused a
Code, defendants may remain independently separate injury, even if the separate injury was a
liable for their harmful omissions even where the worsening of the child’s condition. Therefore, any
injury occurs vis-à-vis a third party. causal dispute regarding the source of J.D.’s initial
injury necessarily would not apply to the subse-
Finally, a concurrent causation jury instruction quent failure to provide reasonable medical care.
would only serve to confuse the jury. Trusting a The jury charge correctly required the jury to find
jury to reconcile factual causation and concurrent a causal relationship between both proposed
causation in a case where the evidence does not means and the resulting, separate injuries.
support concurrent causes would improperly ask
the jury the same questions the Eleventh Court of One concurrent cause present in this case which
Appeals has apparently designated “too difficult Appellant could have raised but did not, centers on
for lawyers or even for philosophers.” Justin’s failure to provide medical care following
the initial injury. Assuming such a concurrent
As a result, we find concurrent causation inap- omission satisfies the first prong of our test under
plicable to Appellant’s failure to prevent J.D.’s § 6.04(a), it fails the second requirement which
injury, as Appellant’s arguments contest culpabil- would require Appellant to show that the concur-
ity, rather than allege concurrent causes. rent omission was clearly sufficient alone to cause
the additional injury, while hers was clearly insuf-
Likewise, Appellant fails to demonstrate that

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