Opinion
NO. 02-15-00360-CR
05-18-2017
ERICA MARIE HERNANDEZ APPELLANT v. THE STATE OF TEXAS STATE
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 1380412D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. INTRODUCTION
Appellant Erica Marie Hernandez appeals her conviction for intoxication manslaughter with a vehicle. In one point, Hernandez argues that the trial court reversibly erred by including in its charge to the jury the concurrent-causation language found in Texas Penal Code section 6.04(a). See Tex. Penal Code Ann. § 6.04(a) (West 2011). We will affirm.
II. BACKGROUND
Because this appeal involves only a question regarding the trial court's charge to the jury, we will only briefly address the facts of the case to provide context for the reader.
During the early hours of August 6, 2014, Hernandez drove herself and a girlfriend on an interstate highway at a high rate of speed. Hernandez and her girlfriend had been drinking the night before and into that morning. It was described at trial that Hernandez was traveling so fast that her vehicle shook other cars as she passed them. As she was speeding along, Hernandez's vehicle clipped the back of an 18-wheeler tanker truck, causing Hernandez to lose control of her car. Tragically, Hernandez smashed into the side of Elaine Plummer's vehicle, who was driving to work that morning, sending both cars crashing into a roadway divider. Plummer died shortly after she was transported to the hospital that same morning.
At trial, among several arguments, Hernandez presented two concurrent-causation alternatives to her inebriated driving's having been the cause of Plummer's death. First, Hernandez argued and presented evidence that the 18-wheeler that her car clipped was the cause of her collision with Plummer. Second, Hernandez argued and presented evidence that the vehicle that she was driving had alignment issues, ostensibly making the vehicle difficult to steer.
Over her objection, the trial court included in its charge to the jury the statutory concurrent-causation language found in Texas Penal Code section 6.04(a). Id. A jury found Hernandez guilty of intoxication manslaughter and made a deadly-weapon finding—the vehicle she was driving. The jury assessed punishment at eight years' confinement. The trial court rendered judgment accordingly, and this appeal followed.
III. DISCUSSION
In her sole point, Hernandez argues that the inclusion of the concurrent-causation language from section 6.04(a) "impermissibly lowered the State's burden of proof in this case." We disagree.
A person commits the offense of intoxication manslaughter if that person (1) operates a motor vehicle in a public place, (2) while intoxicated, and (3) by reason of that intoxication, causes the death of another person by accident or mistake. Id. § 49.08(a) (West 2011); Cook v. State, 328 S.W.3d 95, 99 (Tex. App.—Fort Worth 2010, pet. ref'd). It is not enough that operation of a motor vehicle, even when operated by an intoxicated person, causes death; rather, the State must prove that a defendant's intoxication caused the fatal result. See Daniel v. State, 577 S.W.2d 231, 233-34 (Tex. Crim. App. [Panel Op.] 1979); Glauser v. State, 66 S.W.3d 307, 313 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd), cert. denied, 534 U.S. 1129 (2002). As defined by the Texas Penal Code, "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 Ann. § 6.04(a).
This "but for" causation referenced in section 6.04(a) must be established between an accused's conduct and the resulting harm. See Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986). When concurrent causes are present, the "but for" requirement is satisfied when either (1) the accused's conduct is sufficient by itself to have caused the harm; or (2) the accused's conduct coupled with another cause is sufficient to have caused the harm. Id. But if an additional cause, other than an accused's conduct, is clearly sufficient by itself to produce the result and the accused's conduct by itself is clearly insufficient, then the accused cannot be convicted. Id. Whether such a causal connection exists is a question for the jury's determination. See Hardie v. State, 588 S.W.2d 936, 939 (Tex. Crim. App. [Panel Op.] 1979); Thomas v. State, 756 S.W.2d 59, 61 (Tex. App.—Texarkana 1988, pet. ref'd). As such—except for cases in which the evidence of each concurrent cause involves the defendant's conduct—when evidence of concurrent causes is presented at trial, a charge instruction based on section 6.04(a) is appropriate. Haley v. State, 396 S.W.3d 756, 767 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
Relying on the court of criminal appeals's decisions in Robbins and Otto, Hernandez argues that inclusion of section 6.04(a)'s concurrent-causation language impermissibly lessened the State's burden of proof regarding causation in her case. Otto v. State, 273 S.W.3d 165 (Tex. Crim. App. 2008); see Robbins, 717 S.W.2d at 348. Hernandez's reliance on these cases is misplaced.
Hernandez's reliance on Robbins is misplaced for two reasons. First, in Robbins, "no charge on the issue of concurrent causation should have been given" because no evidence of a concurrent cause had been presented at trial. Robbins, 717 S.W.2d at 351. Second, as the Robbins court clearly explained, the jury charge in Robbins was defective and failed to track section 6.04(a) because the trial court had left out the language "unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient." Id. at 353; see Tex. Penal Code Ann. § 6.04(a). The Robbins court reasoned that without the limiting language found in section 6.04(a), a jury could have convicted Robbins on a standard that was less than reasonable doubt. Robbins, 717 S.W.2d at 352. Because the charge did not track the language of section 6.04(a) entirely, the court held that the charge was erroneous. Id. at 353.
Unlike in Robbins, here, there was evidence that possibly more than one concurrent cause existed—the presence of the 18-wheeler and its contribution to the accident or that the vehicle Hernandez was driving was defective. Indeed, Hernandez's entire defense was predicated on the existence of these concurring causes. And unlike in Robbins, as Hernandez admits in her brief, the court's charge in this case tracked 6.04(a) fully. Thus, the jury could not have found Hernandez guilty if it had found that she had produced clearly sufficient evidence that either of her alleged causes had caused the accident and that evidence was clearly insufficient to show that her conduct caused the accident. See Tex. Penal Code Ann. § 6.04(a).
Hernandez's reliance on Otto is similarly misguided. Otto, 273 S.W.3d 165. In that case, Otto argued at trial that even though she had consumed two glasses of wine on the night she was charged to have been intoxicated, she believed that a male friend had "put some unknown drug" into the soda that she averred she had been drinking after consuming the two glasses of wine. Id. at 167. In response to her evidence, the trial court's charge included language that tracked section 6.04(a) even though the indictment alleged only that Otto was intoxicated "by the reason of introduction of alcohol into" her body. Id. at 166. Notably, there was no evidence of other concurrent-causing, physical acts (i.e. no other drivers or vehicles involved in the fatal accident other than Otto's and the victim's). See id. The court reasoned that because the State had alleged intoxication by alcohol alone, the jury charge that included the concurrent-causation instruction left open the possibility that the jury could have convicted Otto for having been intoxicated "by a combination of alcohol and an unknown drug." Id. at 170. The court held that under those facts, the inclusion of language that tracked section 6.04(a) improperly expanded the State's allegations. Id.
This case's facts are not remotely similar to the facts found in Otto. Here, as Hernandez admits in her brief, her defense at trial was that an intervening or concurring cause was responsible for the fatal accident—that either her vehicle was malfunctioning or the 18-wheeler by itself caused her vehicle to crash into Plummer's. So, unlike in Otto, there was some evidence here of other acts or circumstances that could have concurrently caused the fatal accident. And unlike in Otto, Hernandez has neither presented evidence that another drug was introduced into her system causing her intoxication nor shown that inclusion of the complained-of language improperly expanded the State's allegations against her.
Contrary to Hernandez's arguments, this case exhibits the very type of evidence that section 6.04(a) was designed to address. See Stewart v. State, No. 02-15-00164-CR, 2016 WL 3180031, at *5 (Tex. App.—Fort Worth June 6, 2016, pet. ref'd) (mem. op., not designated for publication) ("With concurrent causes, a defendant is criminally responsible unless his conduct was 'clearly insufficient' to have caused the deaths.") (citing Tex. Penal Code Ann § 6.04(a))). Thus, the trial court did not err by including section 6.04(a)'s language in its charge. We overrule Hernandez's sole point.
IV. CONCLUSION
Having overruled Hernandez's sole point on appeal, we affirm the trial court's judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE PANEL: WALKER, MEIER, and GABRIEL, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 18, 2017