Opinion
01-21-00314-CR 01-21-00315-CR
08-23-2022
STACEY LYNN NOSKA, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish. Tex.R.App.P. 47.2(b).
On Appeal from the 25th District Court Colorado County, Texas Trial Court Case Nos. CR-19-047-C1 & CR-047-C2
Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.
MEMORANDUM OPINION
VERONICA RIVAS-MOLLOY JUSTICE
This case stems from a two-car motor vehicle collision. Appellant Stacey Lynn Noska was driving her Lexus SUV when she collided with another small SUV. The driver of the small SUV died at the scene of the accident and his passenger suffered serious bodily injuries. Appellant was charged in a two-count indictment with intoxication manslaughter (Count I) and intoxication assault (Count II). Following a jury trial, the jury found Appellant guilty on both counts and assessed her punishment at fifteen years' confinement for Count 1 and five years' confinement for Count 2, with the sentences to run concurrently.
In two points of error, Appellant contends the trial court erred by failing to include in its charge to the jury an instruction on the law of concurrent causation and an application paragraph applying the defense of concurrent causation to the facts of the case. She argues the error resulted in egregious harm warranting reversal. We affirm.
Background
This appeal stems from a two-vehicle accident occurring shortly after 9:00 a.m. on August 17, 2018. Appellant Stacey Lynn Noska ("Noska") was driving her Lexus SUV on her way to her daughter's school to drop off her homework when she collided with another small SUV. Kenneth Jatzlau ("Mr. Jatzlau") was driving the small SUV and his wife, Roberta Criswell Jatzlau ("Mrs. Jatzlau"), was his passenger. They were on their way to an acupuncture class when the collision occurred. As a result of the impact, their car rolled and landed side-ways on a ditch. Mr. Jatzlau died at the scene of the accident and Mrs. Jatzlau suffered serious bodily injuries. Noska was charged with intoxication manslaughter and intoxication assault. The case was tried to a jury.
Several witnesses testified for the State at trial including eyewitnesses Janell Warschak and Randy Hall, first responders Alyssa Lindemann and Cliff Johnson, crash investigation experts Craig Wycoff and Drew Stoner, forensic scientist Renee Hawkins, and Noska's primary care physician Dr. Robert Katz. The defense called analytical chemist Dr. Allison Wicker. The jury found Noska guilty of intoxication manslaughter and intoxication assault, and it assessed her punishment at fifteen years' confinement for Count 1 and five years' confinement for Count 2, with the sentences to run concurrently.
A. The State's Witnesses
1. Janell Warschak
On August 17, 2018, at approximately 9:00 a.m., Janell Warschak ("Warschak") was driving southbound on FM 109 in Colorado County on her way to work. As Warschak approached the top of a hill, she saw a Lexus SUV ("Lexus") in the opposite lane of traffic make a U-turn in the middle of the road and come to a stop in Warschak's lane. Warschak and the driver of the vehicle in front of her slammed on their brakes and drove around the stationary Lexus. Warschak testified that the driver of the Lexus, who had both hands on the steering wheel and was smoking a cigarette, "looked like she was out of it" and did not notice Warschak driving around her.
Warschak continued driving. When she looked in her rearview mirror she saw the Lexus driving behind her. Warschak testified that the Lexus was "all over the road" and the driver "would go into the left side of the ditch, the right side of the ditch, on the wrong side of the road," and that "[s]he did that numerous times on the way in for several miles." As Warschak approached a big curve in the road she passed a small white SUV traveling in the other lane of traffic, and a white truck traveling behind the white SUV. In her rearview mirror, Warschak saw the Lexus veer off, cross the yellow stripe, and hit the small white SUV. Warschak testified that the driver of the small white SUV tried unsuccessfully to swerve to avoid being hit. When she got to work, Warschak called 911 to report the accident.
2. Randy Hall
That morning, Randy Hall ("Hall") was driving down FM 109 traveling behind another vehicle. Hall testified that he and the driver of the other vehicle were traveling a bit under the speed limit and "staying straight, driving smooth." As Hall's vehicle and the vehicle in front of him were driving around a long bend, Hall saw a small Lexus SUV approaching from the opposite direction. As the Lexus came closer, Hall saw it collide with the vehicle in front of him. After Hall pulled off to the side of the road, he exited his truck and approached the Lexus. In court, Hall identified Noska as the driver of the Lexus involved in the collision. Hall testified that when he told Noska that he was going to call 911 and request an ambulance, she said "No, please, no, don't call the police." On cross-examination, Hall testified that he initially told the trooper on the scene that he had been travelling behind the Lexus because he was "very turned around" when the trooper arrived at the scene and both cars involved in the accident had spun after the accident.
3. Alyssa Lindemann
Alyssa Lindemann ("Lindemann"), an EMT Intermediate with Colorado County, was dispatched to the scene of the accident. When she arrived, she saw two vehicles with significant damage. She approached one of the vehicles, a gray Lexus, which had been traveling southbound but was now located in the center of the roadway. Lindemann testified that the female driver of the Lexus could not exit because her legs were pinned by the dashboard. As fire department personnel tried to free the Lexus driver, Lindemann began administering care and asked the driver several questions to assess her alertness. Lindemann testified that the driver was able to answer all her questions but she declined to provide her name. Lindemann found a document in the vehicle identifying Noska as the driver of the Lexus.
Lindemann testified that Noska did not want her to call 911, which Lindemann found odd because people in accidents usually want her help. Lindemann testified that Noska's eyes were approximately two millimeters constricted and would not dilate which she found unusual. When Lindemann asked Noska what caused the crash, Noska told her she thought she may have blacked out and that she had a history of seizures. In her written patient care report, Lindemann noted that Noska was taking Lisinopril, Metformin, and Xanax. She testified that Lisinoprin treats high blood pressure, Metformin is taken for diabetes, and Xanax is taken for anxiety. Once she was extricated from the Lexus, Noska was flown by helicopter to Memorial Hermann Hospital.
4. Cliff Johnson
Cliff Johnson ("Johnson"), a paramedic with Colorado County Emergency Medical Services, was dispatched to the scene of the accident. Johnson observed two vehicles at the scene: one that was upright in the roadway and another that was on its side in a ditch several hundred feet away. Johnson testified that the vehicle on its side had widespread damage and appeared to have rolled. Johnson testified that there were two people inside the vehicle in the ditch-the driver, Mr. Jatzlau, who appeared to be deceased, and the passenger, Mrs. Jatzlau, who was screaming and crying.
Johnson testified that Mr. Jatzlau was not breathing, had no muscle tone, his arms were limp, and his face was bluish-purple. While Johnson assisted Mrs. Jatzlau, other first responders performed CPR on Mr. Jatzlau. Mr. Jatzlau was pronounced dead at the scene after EKG monitoring showed no cardiac activity and emergency personnel completed a detailed assessment.
Upon assessing Mrs. Jatzlau's condition, Johnson observed that she appeared to have a broken collarbone and right shoulder injury. Mrs. Jatzlau also had severe bruising around her chest which Johnson believed indicated potential injury to the lungs and broken ribs. Johnson testified that Mrs. Jatzlau had sustained serious bodily injury as a result of the accident. She was flown to Memorial Hermann Hospital for assessment. Mrs. Jatzlau's medical records admitted into evidence showed that she sustained "rib fractures of the 2nd, 4 through 6th ribs, pulmonary contusions of the upper lobe, a clavicle fracture of the right mid-clavicle shaft, [and] a spinal ligament injury to a L zone 1 sacral ala fracture."
5. Trooper Craig Wycoff
Texas Department of Public Safety ("DPS") State Trooper Craig Wycoff ("Trooper Wycoff") investigated the crash and testified as a crash investigation expert. When Trooper Wycoff arrived at the scene of the accident, he observed two vehicles: a silver Lexus SUV angled in the southbound lane and a Chevrolet truck or SUV on the other side of the road lying in a grassy ditch on its side. Trooper Wycoff testified that at the time of the accident, the Jatzlaus were traveling northbound to Brenham for acupuncture and Noska was traveling southbound. When Trooper Wycoff approached the Lexus he saw one occupant in the driver's seat who he identified in court as Noska. Trooper Wycoff testified that as he took photographs of Noska at the scene, she appeared to be asleep because her eyes were closed and she "looked very relaxed."
Trooper Wycoff testified that there were two occupants in the other vehicle involved in the accident: the driver, Mr. Jatzlau, who appeared to be deceased, and the passenger, Mrs. Jatzlau, who appeared to be injured and in shock. When Trooper Wycoff asked Mrs. Jatzlau what happened, she stated that "they were just going down the road, and the car kept coming at them, and they kept trying to get out of the way." Trooper Wycoff testified that Noska's mother arrived at the scene and identified her daughter and her date of birth. When he asked Noska what happened, she responded, "I don't know, I blacked out." He learned that Noska was on her way to her daughter's school when the collision occurred. Trooper Wycoff testified that Noska's speech was slow and slurred and he suspected that she might be under the influence.
Several days later, while Noska was still in the hospital, Trooper Wycoff called her to gather more information. According to Trooper Wycoff, Noska told him that on the day of the accident she woke up at 6:30 a.m., got her daughter ready for school, and fed her dogs. Once they arrived at school, Noska's daughter told her that she forgot her math homework at home. Noska told him she retrieved her daughter's homework and was on her way back to the school but could not recall what happened afterwards.
Based on the information he gathered as part of his investigation, Trooper Wycoff obtained and executed a search warrant at Memorial Hermann Hospital to obtain the blood specimens the hospital had taken from Noska on the day of the accident. He obtained the samples for analysis and took them to the Texas Department of Public Safety ("DPS") Crime Lab. Based on his training, experience, and the results of his investigation, Trooper Wycoff testified that it was his opinion that the Lexus had unlawfully entered into the opposing lane and crashed into the Chevrolet Traverse driven by the Jatzlaus. When Trooper Wycoff was asked whether there was evidence at the scene that the Jatzlaus crossed into Noska's lane, he stated "No. The way the vehicles ended up, how they came off each other, there was no way that I could put the Jatzlaus' vehicle into the southbound lane." Trooper Wycoff obtained the airbag/electronic control module ("black box") from the Lexus but could not download the information from the box.
6. Trooper Drew Stoner
DPS Trooper Drew Stoner ("Trooper Stoner") assisted Trooper Wycoff with the investigation of the accident and created a scaled diagram of the accident scene. Based on witness statements, photographs depicting the accident scene on the date of the collision, and Trooper Wycoff's crash report, Trooper Stoner opined that the vehicles' point of impact had been at the northbound lane of the roadway.
7. Renee Hawkins
Renee Hawkins ("Hawkins"), a forensic scientist in the DPS Toxicology Section, analyzed Noska's blood specimens. The analysis showed the presence of Alprazolam 0.062 mg/L, Carisoprodol 2.9 mg/L, Meprobamate 12 mg/L, and Hydrocodone 0.03mg/L. Hawkins testified that Alprozolam, better known as Xanax, is a central nervous system ("CNS") depressant that is usually prescribed as an anti-anxiety medication and sometimes as an anti-depressant. She testified that Alprazolam has similar effects on the body to alcohol such as drowsiness, dizziness, and fatigue and can reduce a person's reaction time as well as affect vision and muscular coordination which can affect a person's driving. Hawkins described driving as a "very complicated task where your attention is divided" and a person is "doing dozens of things consciously and dozens of things unconsciously." Hawkins testified that CNS depressants can affect a person's ability to do all of these tasks at the same time.
The hospital drug screen also found the presence of benzodiazepines, opiates, and cannabinoids.
Hawkins also testified that Carisoprodol, better known as Soma, is a muscle relaxant and CNS depressant that is categorized as a sedative and can cause drowsiness, dizziness, confusion, and fatigue as well as affect a person's muscular coordination and reaction time. She explained that Hydrocodone, better known as Vicodin or Lortab, is a pain reliever and has CNS depressant effects. Aside from causing drowsiness, confusion, and affecting a person's vision, Hydrocodone can affect one's ability to perform divided attention tasks such as driving. Hawkins also explained that Meprobamate is prescribed for anxiety. Hawkins testified that because Meprobamate is a metabolite of Carisoprodol, she could not state whether Noska had taken both drugs but she opined it was more likely that Meprobamate was present from Noska's ingestion of Carisoprodol. Like the other substances, Meprobamate is a CNS depressant and can cause drowsiness, dizziness, and confusion as well as affect one's reaction time and ability to perform divided attention tasks. Hawkins testified that, taken in combination, these CNS depressants could cause a person to "black out."
Hawkins testified that the Drug Enforcement Administration ("DEA") conducted an investigation with the prescription monitoring program in Texas and found a high number of drug combinations were being prescribed in the Houston area. According to Hawkins, the media and the DEA began referring to the drug combination, which typically includes Alprazolam, Hydrocodone, and Carisprodol, as the "Houston cocktail."
8. Robert Katz
Dr. Robert Katz ("Dr. Katz"), a primary care physician at Columbus Medical Clinic, treated Noska every one to three months between 2015 and 2018, and again in 2019. Dr. Katz testified that he had treated Noska for anxiety, chronic pain, diabetes, and hypertension. He prescribed Metformin for Noska's diabetes but did not recall what he prescribed for her hypertension. As for Noska's chronic pain and anxiety, Dr. Katz testified that Noska tried a number of different medications. He did not recall prescribing her Carisoprodol, but stated he prescribed her Xanax as well as Buspar or Wellbutrin, which are non-narcotic, non-sedative medications. Dr. Katz testified that he became concerned about the medications Noska was taking because she continued to request higher doses to treat her anxiety. Dr. Katz testified that when he consulted the prescriber database he noticed that Noska had multiple prescribers at multiple locations and he became concerned about her dependence and addiction issues. Dr. Katz testified that he spoke to Noska about his concerns and suggested that she consider taking a non-sedative medication to treat her anxiety. He warned Noska about the dangers of driving while taking these medications and referred her to another doctor to help wean her off of the medications.
Dr. Katz also referred Noska to Dr. Shukla, a neurologist, who evaluated her for seizure disorder. Dr. Katz testified that Dr. Shukla did not believe Noska had a seizure disorder but that "his overriding concern" was the multiple medications Noska was taking. Dr. Shukla recommended that Noska taper off of her medications. Dr. Katz testified that when he began seeing Noska again in 2019, he advised her that he would not prescribe any controlled substances, and Noska agreed. Dr. Katz last treated Noska approximately six months prior to trial.
B. Defense Testimony
After the State rested, the defense called Dr. Allison Wicker ("Dr. Wicker"), an analytical chemist, to testify. Dr. Wicker testified that the quality controls at the DPS lab where Noska's blood specimens had been analyzed were performed improperly, and that the calibration curves did not appear to have been done properly. Dr. Wicker stated that, in her opinion, the method used by the DPS lab to analyze Noska's blood was not valid.
After both sides rested, the trial court reviewed the court's charge with the jury. Neither the State nor the defense had any objections. Following deliberations, the jury found Noska guilty of intoxication manslaughter (Count 1) and intoxication assault (Count 2). The jury assessed Noska's punishment at fifteen years' confinement for Count 1 and five years' confinement for Count 2, with the sentences to run concurrently. This appeal followed.
Discussion
In two points of error, Noska contends the trial court erred by failing to include in its charge to the jury an instruction on the law of concurrent causation and an application paragraph applying the defense of concurrent causation to the facts of the case. Noska argues that the error resulted in egregious harm warranting reversal. Because the same analysis applies to Noska's two points of error, we address them together.
A. Standard of Review
In analyzing a potential jury charge error, we use a two-step review to decide whether reversal is required. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005); Vernon v. State, 571 S.W.3d 814, 826 (Tex. App.-Houston [1st Dist.] 2018, pet ref'd). We first decide whether an error exists. Ngo, 175 S.W.3d at 743. If we determine an error exists, we next analyze the error for harm. Id. The level of harm requiring reversal based on jury charge error depends on whether the appellant properly objected to the error. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994). When as here, a party fails to make a timely and specific objection, we review the error under the egregious harm analysis articulated in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). See Cosio v. State, 353 S.W.3d 766, 776 (Tex. Crim. App. 2011).
To constitute egregious harm, the charge error must have affected "the very basis of the case," "deprive[d] the accused of a valuable right," or "vitally affect[ed] h[er] defensive theory." Almanza, 686 S.W.2d at 172 (internal quotations omitted); Vernon, 571 S.W.3d at 826-27. To determine egregious harm, we evaluate the error in light of the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Cosio, 353 S.W.3d at 777.
B. Applicable Law
Texas Penal Code Section 49.08 provides that "[a] person commits [intoxication manslaughter] if the person: (1) operates a motor vehicle in a public place . . . and (2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake." Tex. Penal Code § 49.08(a). Section 49.07 provides that "[a] person commits [intoxication assault] if the person, by accident or mistake: (1) while . . . operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another . . . ." Id. § 49.07. With exceptions not relevant here, intoxication manslaughter is a second-degree felony and intoxication assault is a third-degree felony. Id. §§ 49.08(b), 49.07(c).
C. Analysis
Noska contends the jury charge contained error because it did not include an abstract paragraph tracking the law of concurrent causation. She argues that "even though it is an element of both intoxication offenses to have 'caused' the death or serious bodily injury, there is not so much as a definition of causation." Noska argues the jury charge also contained error because it did not include an application paragraph applying the law of concurrent causation to the facts of the case. The State responds that the jury charge did not contain error because no concurrent causation was presented at trial. It further argues that if the trial court committed error, it was harmless.
The charge instructed the jury, in relevant part, as follows:
Count I - Intoxication Manslaughter
The State accuses the defendant of having committed the offense of intoxication manslaughter. Specifically, the accusation is that the defendant operated a motor vehicle in a public place while the defendant was intoxicated and by reason of that intoxication caused the death of another by accident or mistake, to wit: by operating a motor vehicle and failing to maintain a single lane causing the defendant's motor vehicle to veer into an oncoming lane of traffic and collide with another motor vehicle, driven by Kenneth Ray Jatzlau.
The State has alleged intoxication by not having the normal use of mental or physical faculties by reason of the introduction of a controlled substance, a drug, a dangerous drug, or a combination of two or more of those substances into the body.
Relevant Statutes
A person commits an offense if the person operates a motor vehicle in a public place, is intoxicated, and by reason of that intoxication causes the death of another by accident or mistake.
To prove that the defendant is guilty of intoxication manslaughter, the state must prove, beyond a reasonable doubt, four elements. The elements are that-
1. The defendant operated a motor vehicle; and
2. The defendant did this in a public place; and
3. The defendant did this while intoxicated; and
4. by reason of the intoxication, the defendant caused the death of another by accident or mistake.
The requirement that the person have caused the death of another "by accident or mistake" means that the person need not have had criminal intent or any culpable mental state.
Count II - Intoxication Assault
The State accuses the defendant of having committed the offense of intoxication assault. Specifically, the accusation is that the defendant operated a motor vehicle in a public place while the defendant was intoxicated and by reason of that intoxication caused serious bodily injury to another by accident or mistake, to wit: by operating a motor vehicle and failing to maintain a single lane causing the defendant's motor vehicle to veer into an oncoming lane of traffic and collide with another motor vehicle, occupied by Roberta Criswell Jatzlau.
The State has alleged intoxication by not having the normal use of mental or physical faculties by reason of the introduction of a controlled substance, a drug, a dangerous drug, or a combination of two or more of those substances into the body.
Relevant Statutes
To prove that the defendant is guilty of intoxication assault, the state must prove, beyond a reasonable doubt, four elements. The elements are that-
1. The defendant operated a motor vehicle; and
2. The defendant did this in a public place; and
3. The defendant did this while intoxicated; and
4. by reason of the intoxication, the defendant caused serious bodily injury to another by accident or mistake.
The requirement that the person have caused serious bodily injury to another "by accident or mistake" means that the person need not have had criminal intent or any culpable mental state.
Alprazolam is a controlled substance.
Carisoprodol is a controlled substance.
Hydrocodone is a controlled substance.
Meprobamate is a controlled substance.
Burden of Proof
The state must prove, beyond a reasonable doubt, the accusation of driving while intoxicated and causing the death of another by accident or mistake.
The state must prove, beyond a reasonable doubt, the accusation of driving while intoxicated and causing bodily injury to another by accident or mistake.
Noska acknowledges that the charge included abstract paragraphs tracking the elements of the intoxication manslaughter and intoxication assault statutes. She also acknowledges that the charge instructed the jury that the requirement that the defendant cause the death of another "by accident or mistake" means that the defendant need not have had criminal intent or any culpable mental state, and that the charge listed the medications found in Noska's blood as controlled substances and stated that the burden of proof is beyond a reasonable doubt. Nonetheless, Noska argues that the jury "was not given the critical § 6.04(a) instruction- necessarily implicated by the application paragraphs' use of the word 'causes'- which incorporated the legal requirement of 'but for' causation." She asserts that the failure to do so amounted to reversible error because such an instruction was necessary to the jury's understanding of the use of the word "cause" in the application portion of the charge.
Texas Penal Code Section 6.04, entitled "Causation: Conduct and Results," states, in relevant part, that "[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." Tex. Penal Code § 6.04(a). A concurrent cause is "another cause" in addition to the actor's conduct, an "agency in addition to the actor." Robbins v. State, 717 S.W.2d 348, 351 n.2 (Tex. Crim. App. 1986) (quoting S. Searcy & J. Patterson, Practice Commentary, Tex. Penal Code § 6.04). "A jury charge on causation is called for only when the issue of concurrent causation is presented." McKinney v. State, 177 S.W.3d 186, 202 (Tex. App.-Houston [1st Dist.] 2005), aff'd, 207 S.W.3d 366 (Tex. Crim. App. 2006) (concluding no charge on issue of concurrent causation should have been given because no concurrent cause existed and only defendant's conduct was involved) (quoting Hughes v. State, 897 S.W.2d 285, 297 (Tex. Crim. App. 1994)). Where only the defendant's conduct is involved, no concurrent cause exists. See Robbins, 717 S.W.2d at 351 n.2; McKinney, 177 S.W.3d at 202 ("One's own actions or state generally cannot be a concurrent cause of one's criminal act."); see also Sampson v. State, 05-19-00987-CR, 2021 WL 3828468, at *3 (Tex. App.-Dallas Aug. 27, 2021, no pet.) (mem. op., not designated for publication).
Noska argues that "there was a wealth of evidence before the jury that [her] alleged intoxication did not necessarily 'cause' the collision or 'cause' the death of Mr. Jatzlau" and the "lack of State's evidence in this case (i.e. black box data, autopsy . . .) also raised the issue of concurrent causation." In support of her argument, Noska points out that (1) the accident occurred on a weekday morning at about 9:00 a.m., (2) she was taking her daughter's homework to her at school, (3) Hall, the northbound driver following the Jatzlaus' car, told Trooper Wycoff twice that the car in front of him spun and went over the line when the accident happened, (4) no attempt was made to recover the black box from the Jatzlaus' car, (5) the black box from Noska's car was removed but the data was never recovered, (6) Trooper Stoner testified there was not enough evidence for a full accident reconstruction to be done in this case, (7) Johnson testified Mr. Jatzlau was not breathing, had minor scratches on his face from the collision, and had nothing major arterial or substantial, (8) Trooper Wycoff is not qualified as a drug recognition expert, (9) Dr. Katz testified that the controlled substances detected in Noska's blood were prescribed to her for legitimate medical reasons, and (10) Dr. Wicker raised doubt about the reliability of Noska's blood lab results for measuring the controlled substance levels in her system.
Noska's arguments do not support a concurrent causation instruction. We first note that other than listing the above evidence, Noska does not explain in any meaningful way or detail how any of the above evidence establishes that her "intoxication did not necessarily 'cause' the collision or 'cause'" the death of Mr. Jatzlau. More importantly, she undertook no effort to establish how such evidence points to another concurrent cause, which is the key and relevant inquiry. Noska appears to suggest, without citation to any authority, that a concurrent causation instruction must be given merely because the intoxication manslaughter and intoxication assault statutes require as an element of the offenses that the defendant have "caused" the death of a person or serious bodily injury. Noska conflates causation (did the defendant cause the accident) with concurrent causation (did another cause in addition to the defendant's conduct cause the accident). That the statutes require causation to be established does not mean that a concurrent causation instruction must be given. "A jury charge on causation is called for only when the issue of concurrent causation is presented." McKinney, 177 S.W.3d at 202.
As detailed above, the evidence showed that Noska was intoxicated on the date of the accident due to the medications she had ingested, she was driving erratically prior to the accident due to her intoxication, and she eventually crossed into the oncoming lane of traffic where she struck the Jatzlaus' vehicle, causing Mr. Jatzlau's death and serious bodily injury to Mrs. Jatzlau. There is no evidence in the record that Mr. Jatzlau's death and Mrs. Jatzlau's serious bodily injury resulted from any other cause or that something other than Noska's conduct was involved or caused the collision. See McKinney, 177 S.W.3d at 202 (concluding no charge on issue of concurrent causation should have been given where there was no evidence of concurrent causation and only defendant's conduct was involved).
For Noska to be entitled to a charge on "concurrent causation," the record had to contain some evidence that a "concurrent cause was clearly sufficient to produce the result" and Noska's conduct "clearly insufficient." Tex. Penal Code § 6.04(a); Remsburg v. State, 219 S.W.3d 541, 545 (Tex. App.-Texarkana 2007, pet. ref'd) (concluding concurrent causation instruction was not warranted in prosecution of defendant for aggravated assault against law enforcement officer where there was no evidence that defendant's conduct was clearly insufficient and that conduct of officer, alone, was clearly sufficient to produce resulting assault). Noska does not allege that the Jatzlaus were negligent or contributed to the accident, nor does she identify any other specific cause that may have contributed to the accident. Without such evidence-and Noska cites none-the trial court was not required to give a concurrent causation instruction to the jury even if Noska had requested one. See id. Because we conclude there was no jury charge error by the trial court, we do not reach the issue of harm. Harrod v. State, 203 S.W.3d 622, 629 (Tex. App.-Dallas 2006, no pet.). We overrule Noska's first and second points of error.
Although Hall initially told Trooper Wycoff that he was traveling behind the Lexus, he testified at trial that he was "very turned around" when the trooper arrived at the scene. Hall's testimony is not evidence that Noska's actions were clearly insufficient to cause Mr. Jatzlau's death and serious bodily injury to Mrs. Jatzlau or that a concurrent cause was clearly sufficient to cause the result.
Conclusion
We affirm the trial court's judgment.