Page 30 - TPA Journal November December 2022

the same circumstances would not continue to While Appellant’s conduct alone may not have
resist arrest and would not “pull and jerk” or try to been sufficient to cause Reeves’s and Carper’s
go between officers while they are attempting to injuries, neither can the officers’ actions alone be
restrain him. considered sufficient to cause the resulting harm.
Carper’s and Reeves’s actions cannot be
The jury heard, on video, Appellant claim that he characterized as “alone” because they were acting
was trying to give Carper the bag in his hand. They in response to Appellant’s conduct. We cannot
also heard him say that he did not grab Carper. isolate the officers’ actions and view them as a
However, there is evidence to the contrary, and it is wholly independent cause of their injuries—they
within the purview of the jury to resolve would not have responded in the manner they did
inconsistencies in the evidence. Carper and Reeves had it not been for Appellant’s conduct in reacting
testified to Appellant’s actions, and the jury was to Carper’s search. Because Appellant’s conduct
free to believe them. The video evidence does not and the officers’ conduct together caused the harm,
contradict their testimony. Under these the but-for causation requirement is satisfied.
circumstances, a rational jury could find Appellant’s actions, when considered in
Appellant’s actions to be reckless. conjunction with Carper’s and Reeves’s actions,
were sufficient to have caused the officers’ injuries.
Appellant also argues that the evidence is Nonetheless, a determination that Appellant’s
insufficient to show he caused Carper’s and actions were a but-for cause of the officers’ injuries
Reeves’s injuries. As mentioned above, the relevant does not settle the matter. Criminal offenses require
test for criminal responsibility, or causation, is voluntary acts.
contained in Texas Penal Code § 6.04(a): “A person
is criminally responsible if the result would not Concern has been expressed that “any minor
have occurred but for his conduct, operating either scuffle during an arrest will result in a defendant
alone or concurrently with another cause, unless the being charged solely with assault on a public
concurrent cause was clearly sufficient to produce servant.” However, this is not the case.
the result and the conduct of the actor clearly
insufficient.” There must be “a ‘but for’ causal Mere resistance to an officer’s contact, detention,
connection . . . between the defendant’s conduct search, or arrest cannot be considered assault of a
and the resulting harm.” If there are concurrent public servant without more. Injuries to officers
causes, the but-for requirement can be satisfied if that occur while they are performing their law
1) the defendant’s conduct alone was clearly enforcement duties can be the result of non-
sufficient to cause the harm; or 2) the defendant’s voluntary and accidental forces. This can be true
conduct and the other cause together were even if the resulting injuries would not have
sufficient to cause the harm. However, if the other occurred but for a suspect’s actions. For assault on
cause alone was clearly sufficient to cause the a public servant to occur, the defendant must have
resulting harm, and the defendant’s conduct by been a but-for cause of an officer’s injuries, and his
itself was clearly insufficient to cause the resulting actions that are considered the but-for cause of the
harm, the defendant is not criminally responsible. injury must have been performed voluntarily.
Physical movements that are the nonvolitional
Appellant argues that Carper’s and Reeves’s actions result of someone else’s act or that are set in
were the cause of their injuries. He posits that his motion by an independent non-human force,
conduct could not have caused their injuries— physical reflex, convulsion, unconscious act, act
meaning he cannot be considered criminally under hypnosis, and other “nonvolitional impetus”
responsible. We disagree. are not voluntary acts.

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