1. “Does the concept of concurrent causation, Tex. Penal Code § 6.04(a), apply to the results caused by third parties for which the defendant is criminally responsible?”
2. “ Is ambivalence over the amount of serious bodily injury directly attributable to the defendant evidence that her conduct was clearly insufficient to cause any serious bodily injury?”
Cyr was charged with recklessly causing serious bodily injury to her child, a four-month-old girl, by failing to protect her from her husband’s physical abuse and/or failing to obtain medical treatment. The trial court rejected her request for a concurrent causation instruction, which would have provided: “A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.” A jury ultimately convicted her of the offense as charged.
Cyr appealed, arguing that the denial of the concurrent causation instruction was harmful error. The court of appeals agreed. It held that there was some evidence to prove that Cyr’s conduct was insufficient to cause the injuries because the medical expert testified that taking the child to the hospital earlier “possibly could have mitigated” the injuries.
The State first takes issue with the lower court’s focus only on the act charged, as opposed to the alternate omission element. Cyr had a duty to protect her child, and the evidence was sufficient to show that Cyr recklessly caused bodily injury because she failed to protect the child from her husband. Because of this, concurrent causation does not apply to the omission, and the lower court’s opinion would authorize juries to improperly use it as a mechanism to acquit when they find someone responsible for the concurrent cause. Alternatively, if concurrent causation is applicable, the State contends that the evidence of Cyr’s conduct in failing to get prompt medical care was sufficient. Low probability of mitigation is not even weak evidence of a clearly insufficient cause, and it makes no sense to turn a lack of confidence into proof of impossibility. As a result, submission of the instruction would have invited the jury to speculate.