Herbert Briscoe v. the State of Texas

Reversed and Remanded and Opinion filed June 29, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00094-CR
HERBERT BRISCOE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 1739168
OPINION
A jury found appellant Herbert Briscoe guilty of aggravated assault for his
role in a gunfight that resulted in the death of complainant Kionn Lamothe. After
appellant pleaded true to an enhancement paragraph, the jury assessed his
punishment at 25-years’ imprisonment. Tex. Penal Code Ann. § 22.02(b)(1). In
two issues, appellant argues that the trial court erred by (1) allowing the State “to
alter the indictment over the objection of the Defense” and (2) instructing the jury
on concurrent causation.
Because appellant did not object as required by article 28.10 to the alleged
amendment of the indictment, we conclude that the trial court did not err in
directing the State to alter the indictment to remove the name of one of the two
complainants identified in the indictment, Tex. Code Crim. Proc. Ann. art.
28.10(b), (c). We further conclude that the trial court erred by including an
instruction on concurrent causation in the jury charge, and that appellant was
harmed by its inclusion. Accordingly, we reverse appellant’s conviction for
aggravated assault and remand for a new trial.
I. BACKGROUND
In December 2016, appellant attended a concert at a nightclub in midtown
Houston. After getting into an altercation inside the club with complainant and
others, appellant left the club and sat in his vehicle in the parking lot. After
appellant had been sitting alone in his parked vehicle for some minutes,
complainant, Marvin Hart, and a third individual left the club and walked through
the parking lot by appellant’s vehicle. After they walked past, appellant got out of
his vehicle and started shooting a gun in their direction. Another shooter responded
and engaged in a gunfight; however, appellant disputed the evidence that he started
the gunfight. Complainant was killed in the gunfight. Hart, who had been walking
with complainant, was shot as well but survived the shooting.
The second shooter was never identified or located. Because the bullet that
killed complainant went through complainant and was never found, it was disputed
whether it was appellant’s bullet that struck complainant. In contrast, the bullet that
struck Hart remained in his body and was linked to appellant. For that reason,
appellant was convicted of aggravated assault of Hart in a separate, previous
proceeding.
The State charged appellant with three counts of murder. However, after
2
deliberations, the jury found appellant guilty of the lesser-included offense of
aggravated assault.
II. ANALYSIS
A. Indictment
In issue one, appellant contends the trial court erred by “granting any
amendment of the indictment during trial over the timely objection of defense
counsel.” Appellant further argues the amendment violated Code of Criminal
Procedure article 28.10(c) and harmed him.
The State argues, in response, that its proposal or agreement to altering the
indictment constituted an abandonment rather than an amendment, which did not
violate article 28.10(c). In the alternative, the State argues that even if this court
were to conclude that such changes to the indictment could constitute an
amendment under article 28.10(c), the indictment was never amended or altered.
Instead, the jury charge was drafted to exclude Hart’s name.
1. Alteration of the indictment
Appellant was charged with murder by indictment for the death of
complainant, which included three counts. See Tex. Penal Code Ann.
§ 19.02(b)(1), (2). The third count alleged that appellant committed an aggravated
assault and in the course of committing the felony caused the death of complainant:
It is further presented that in Harris County, Texas, HERBERT
BRISCOE, hereafter styled the Defendant, heretofore on or about
DECEMBER 31, 2016, did then and there commit a felony, namely
AGGRAVATED ASSAULT, and in the course of and in furtherance
of the commission of the offense, committed an act clearly dangerous
to human life, namely by SHOOTING at MARVIN HART and
KIONN LAMOTHE, in a public place occupied by others, and did
thereby cause the death of KIONN LAMOTHE.
During pretrial proceedings, appellant argued the foregoing language violated the
3
prohibition against double jeopardy because appellant had already been convicted
of aggravated assault of Hart. The State argued that double jeopardy was not
applicable because appellant had not already been tried for the death of
complainant and because the indictment in this case contained an additional
element beyond what was necessary to convict appellant for the aggravated assault
against Hart.
After the State asked for aggravated assault to be included in the charge as a
lesser-included offense of murder, the trial court expressed concern about the
inclusion of Hart in the indictment and directed the State to remove or abandon
their allegations relating to Hart in the indictment.
The charge given to the jury did not contain any reference to Hart.
2. No objection to any alteration or amendment
Even if the alteration requested by the trial court were an amendment as
contemplated by article 28.10 (an issue we do not decide in this opinion), appellant
did not object as required by article 28.10. Tex. Code Crim. Proc. Ann. art.
28.10(b). After a trial on the merits has begun, a matter of form or substance in an
indictment may be amended only if the defendant does not object. Id. Further, an
indictment may not be amended over a defendant’s objection “if the amended
indictment or information charges the defendant with an additional or different
offense or if the substantial rights of the defendant are prejudiced.” Tex. Code
Crim. Proc. Ann. art. 28.10(c). Though appellant alleges an amendment occurred,
the record reflects no objection to an alleged amendment of the indictment.
Although appellant repeatedly objected to the indictment on the grounds it
subjected him to double jeopardy, he never objected to the removal of Hart’s name
from the indictment. To the contrary, in making a bill of exceptions on another
matter, appellant stated that “we did further reach the agreement to remove
4
‘Marvin Hart’” from the indictment.1
Though we agree with appellant that article 28.10(b) prohibits any mid-trial
amendments over defendant’s objection, we find no objection to any alleged
amendment by appellant in the record. Therefore, we conclude there was no error
on the part of the trial court.
We overrule appellant’s issue one.
B. Concurrent-causation instruction
In issue 2, appellant argues that the trial court erred by including an
1
Appellant made no objections during the discussions on this issue during trial. The
discussion concluded with the following exchange:
THE COURT: I think they’re saying they’re going to abandon that
from their indictment.
[Counsel for the State]: And, Judge, I think the law is clear that the State is
allowed to abandon even in mid-trial.
THE COURT: I understand. Everybody loves to say the law is
clear whether it’s clear or not but --
[Counsel for appellant]: I don’t think it’s ever clear.
THE COURT: I think they can do that. So that’s their solution.
What say you?
[Counsel for appellant]: I — I think if they abandon that paragraph, then
that’s fine.
THE COURT: What’s fine?
[Counselfor appellant]: Just charging on count one and count two.
....
THE COURT: They are not abandoning paragraph three, Counsel.
They’re only abandoning that complainant from
their enhancement – from their indictment. They’re
not going to charge the jury on that complainant.
And I’m asking you, how does that remedy your
objection or does it? And if so, okay. And if not,
why. That’s what I’m asking you.
[Counsel for appellant]: I understand. I understand. I’m thinking.
Appellant did not make any further comment or lodge an objection.
5
instruction on concurrent causation in the jury charge. At the charge conference,
appellant objected to the inclusion of a concurrent-causation instruction in the jury
charge because the State did not provide notice in the indictment and because the
instruction in combination with felony-murder charge created the possibility for a
non-unanimous jury verdict. See Tex. Penal Code Ann. § 6.04(a). On appeal,
appellant argues the improper instruction harmed him because it allowed the jury
to convict him on an improper theory of the law. In response, the State argues that
the trial court did not err, but even if it did there was no harm.
1. Standard of review
A claim of jury-charge error is reviewed in two steps. See Cortez v. State,
469 S.W.3d 593, 598 (Tex. Crim. App. 2015). We first determine whether there is
error in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If
we find error, then we analyze that error for harm. Id. Where there was a timely
objection, appellant must show he suffered “some harm.” Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); Tex. Code Crim. Proc.
Ann. art. 36.19.
2. Jury instruction
At the request of the State, the jury charge included the following
instruction:
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 defendant clearly
insufficient.
Therefore, if you find from the evidence beyond a reasonable doubt
that the death of Kionn Lamothe would not have occurred but for the
defendant’s conduct, as charged in the indictment, operating either
alone or concurrently with another cause, unless the concurrent cause
was clearly sufficient to produce the result and the conduct of the
6
defendant clearly insufficient, you will find the defendant criminally
responsible. Unless you so find beyond a reasonable doubt, or if you
have a reasonable doubt thereof, then you will find the defendant not
criminally responsible and say by your verdict “Not Guilty”.
The first paragraph of the instruction recites the provision for causation in
the Penal Code. See Tex. Penal Code Ann. § 6.04(a); see also Thompson v. State,
93 S.W.3d 16, 22 (Tex. Crim. App. 2001) (section 6.04(a) governs concurrent
causation).
3. Causation
We begin by determining whether concurrent causation was raised by the
evidence. Causation is established when the conduct of the defendant is the “but
for” cause “operating either alone or concurrently with another cause.” 2 Tex. Penal
Code Ann. § 6.04(a); Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App.
1986). “But for” causation establishes culpability or criminal responsibility. Cyr v.
State, No. PD-0257-21, 2022 WL 17825857, at *5 (Tex. Crim. App. Dec. 21,
2022). Even so, the law still requires foreseeability.
In Williams v. State, the court of criminal appeals reviewed the conviction of
a mother for the offense of injury to a child after her two children died in an
accidental house fire while supervised by the mother’s boyfriend. 235 S.W.3d 742(Tex. Crim. App. 2007). The court explained that foreseeability limits causation
because the “defendant’s conduct must be a direct cause of the harm suffered”:
Obviously, some element of foreseeability limits criminal causation
just as it limits principles of civil “proximate causation.” Criminal
liability is predicated on “but-for” causation, and appellant’s acts are
not a “but-for” cause of her girls’ death unless that result is within the
scope of the risk of which she was aware.
2
“Another cause” is one in addition to the actor’s conduct, an “agency in addition to the
actor.” Robbins, 717 S.W.2d at 351 n.2 (internal citation omitted).
7
Williams, 235 S.W.3d at 755, 764. The court further expressed “distaste for
expansive views on causation.” Id.
4. Concurrent causation
The concept of concurrent causation, as provided in section 6.04(a) allows
causation to be found even if the defendant is not the sole cause of the harm. Tex.
Penal Code Ann. § 6.04(a). However, the concurrent-causation instruction
addresses a narrower subset of concurrent causation in which “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). The instruction is also one that
“does not dispute the culpable act or mental state alleged by the State and merely
blames another for the result.” Cyr, 2022 WL 17825857, at *6.
Addressing confusion over the application of the concurrent-causation
instruction among lawyers and trial courts, 3 the court of criminal appeals recently
clarified the specific circumstances that raise the instruction:
To illustrate: Two arsonists each light fire to the same house, one on
the east side and one on the west side, both of which are
independently sufficient to burn the house to the ground. Neither
arsonist is entitled to an instruction on concurrent causation and both
are criminally liable. The same result is reached if both fires would
independently be insufficient to burn the house to the ground, but the
combined force of the east fire and the west fire causes such a result.
Only where the east arsonist can produce evidence that his fire was
clearly insufficient to burn the house to the ground, and the west
arsonist’s clearly sufficient acting alone, would the east arsonist be
3
We further note that the Pattern Jury Charge Committee—Criminal generally cautions
against including a concurrent-causation instruction in jury charges because trial courts are
sometimes “[u]nable to determine how specifically concurrent causation might apply to the facts
of the cases” and “they do not seriously attempt to apply the abstract law to these facts.” See
Comm. on Pattern Jury Charges, State Bar of Tex., Texas Criminal Pattern Jury Charges CPJC
1.8 cmt. (2018). The Committee’s commentary further suggests that “rigorous efforts to apply
causation law to the facts may lead to conclusions that this law simply is inapplicable.” Id.8
entitled to an instruction on concurrent causation and potentially
escape liability for the full extent of the damage caused under
concurrent causation.
Cyr, 2022 WL 17825857, at *5. Restated: If there are two causes, which both
satisfy “but for” causation, a criminal defendant remains liable if his conduct was
either sufficient to have caused the result “‘regardless of the existence of a
concurrent cause,’ or both causes ‘together’ were sufficient to cause the result.”4
Cyr, 2022 WL 17825857, at *5 (quoting Robbins, 717 S.W.2d at 351). For this
reason, the court concluded that “[c]oncurrent causation should not be over
construed to encompass culpability disputes appropriately addressed by the
essential elements of the crime.” Cyr, 2022 WL 17825857, at *9.
As it applies to the facts of this case, the State was arguing all along that
appellant was a “but for” cause of the complainant’s death. The instruction was not
implicated because there is no evidence that “two or more causes satisfy ‘but for’
causation.” See id. at *5. Rather, appellant’s defense raised an alternative cause.
See Barnette v. State, 709 S.W.2d 650, 651 (Tex. Crim. App. 1986) (discusses
concurrent cause and alternative cause). An alternative cause “is simply a different
version of the facts, one which negates at least one element of the State’s case.”5
Id. at 652. There was a single bullet that caused complainant’s death and the
question for the jury was whether appellant’s conduct was the cause of
complainant’s death, or whether it was the conduct of another. Therefore, the
4
The court’s opinion in Cyr reaffirms that the concurrent-causation instruction is a
defensive instruction because its only application is to allow a criminal defendant to potentially
avoid liability if his conduct alone was not sufficient to cause the harm or damage at issue in the
case. Cyr, 2022 WL 17825857, at *5.
5
A defendant is not entitled to a defensive instruction on an alternative cause because the
defensive issue merely negates an element of the offense and offering a special instruction would
“needlessly draw a jury’s attention to the evidence” of alternative cause. Walters v. State, 247
S.W.3d 204, 210 (Tex. Crim. App. 2007) (quoting Giesberg v. State, 984 S.W.2d 245, 250 (Tex.
Crim. App. 1998)).
9
culpability dispute was “appropriately addressed by the essential elements of the
crime.” 6, 7 Cyr, 2022 WL 17825857, at *9 (citing Barnette, 709 S.W.2d at 652).
We conclude the evidence did not raise the issue of concurrent causation,
and the trial court erred by including the concurrent-causation instruction in the
jury charge. Because appellant timely objected to the instruction, we now evaluate
harm.
5. Harm
“[E]rror which has been properly preserved by objection will call for
reversal as long as the error is not harmless.” Almanza, 686 S.W.2d at 171.
Therefore, we review the record to evaluate whether defendant “suffered some
actual, rather than merely theoretical, harm from the error.” Warner v. State, 245
S.W.3d 458, 462 (Tex. Crim. App. 2008). The harm analysis requires
consideration of (1) the jury charge as a whole, (2) the arguments of counsel,
(3) the entirety of the evidence, and (4) other relevant factors present in the record.
Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).
On appeal, appellant argues the concurrent-causation instruction confused
and misled the jury because it authorized the jury to convict on an improper theory
of the law. Specifically, appellant argues the jury was authorized to convict him
6
Sec. 22.01. ASSAULT. (a) A person commits an offense if the person: . . .
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the
person’s spouse; [or]
(2) intentionally or knowingly threatens another with imminent bodily injury[.]
Tex. Penal Code Ann. § 22.01(a)(2).
7
Sec. 22.02. AGGRAVATED ASSAULT. (a) A person commits an offense if the person
commits assault as defined in Sec. 22.01 and the person:
(1) causes serious bodily injury to another, including the person ’s spouse; or
(2) uses or exhibits a deadly weapon during the commission of the assault.
Tex. Penal Code Ann. §22.02.
10
even if they did not find beyond a reasonable doubt that appellant was the person
who shot complainant.
In response, the State argues that the instruction did not broaden the charges
against appellant. The instruction merely authorized the jury to convict appellant
for causing the death of complainant if “the terms of Section 6.04(a) were
satisfied.” If the jury followed the law, the State maintains the jury necessarily did
not convict appellant on an improper basis.
The parties’ arguments
Though the concurrent-causation instruction included in the jury charge was
a correct expression of the law, the State’s arguments muddied the issue. Although
the State’s primary theory at trial was that appellant shot complainant in the back
intentionally (with the intent to kill or cause bodily injury) as revenge for an
altercation that occurred inside the club, the State also argued that the jury could
still convict appellant of the third count—felony murder—even if the jury believed
that the bullet that killed complainant came from the unidentified shooter because
it was appellant who started the gunfight.
To bolster this felony-murder theory, the State requested a
concurrent-causation instruction because “we’re talking about an unknown third
party.” The trial court expressed concern that “it’s almost like you’re naming
another way the jury can find him guilty[,]” to which the State responded, “the
argument I’m making under felony murder only comes in if we get the concurrent
causation charge which is why its necessary.” Although the State’s argument is
based on an incorrect understanding of the concurrent-causation instruction, the
State effectively argued to the trial court that the instruction would allow the jury
to convict even if they did not believe that appellant was guilty of felony murder:
11
[Counsel for the State]: So my expectation would be that they’re
going to argue it was solely the third party who caused the death and
that the defendant was in no way responsible. So that would be —
THE COURT: Okay. That means he wouldn’t be guilty of felony
murder.
[Counsel for the State]: Right. Well, and I think that’s when
concurrent causation comes in because it explains the ways he can be
guilty basically saying you’re responsible, either alone or
concurrently, and it’s only insufficient when it is solely this third
party.
The State then made similar arguments to the jury that appellant caused
complainant’s death, if not intentionally, by starting the gunfight:
. . . [E]ven if you want to believe that it could have been the
unidentified shooter who shot [complainant], even though the
detective explained how it couldn’t have been him, but even if you
want to give [appellant] that benefit of the doubt, under that [felony
murder] paragraph he’s still guilty of murder because he was the
catalyst. He started the domino effect. He started the shootout. He’s
responsible, and he is guilty.
We agree with appellant that the State argued to the jury that they could
convict on an improper theory of the law.8 The State argued that appellant was
responsible for the death of complainant regardless of whether it was his bullet that
killed complainant. The State’s explanation was that appellant fired first and
caused a chain reaction that resulted in complainant’s death. However, the State
never produced any evidence of foreseeability, which bears on whether appellant
acted with the appropriate mens rea—in this case, that appellant intentionally or
8
Penal Code section 7.02, often referred to as the law of parties, provides that a
defendant is criminally responsible for an offense committed by another if the defendant acts
“with the kind of culpability required for the offense” and “causes or aids an innocent or
nonresponsible person to engage in conduct prohibited by the definition of the offense.” Tex.
Penal Code Ann. § 7.02(a)(1). The State did not seek a section-7.02 instruction, nor was one
included; however, a section-7.02 instruction does address a situation in which a defendant’s
conduct causes another person to engage in the conduct prohibited by the offense—here the State
was arguing murder.
12
knowingly caused the death of (or injuries to) complainant. The second shooter
was unidentified and there was no evidence in the record the unidentified shooter
knew appellant or complainant. There was also no evidence in the record that
appellant saw the second shooter before the gunfight and was aware of his
presence or his firearm.
The surveillance video reflects appellant was sitting in his car before the
gunfight. After complainant and Hart walked past his car, appellant got out of the
vehicle and began firing in their direction. At that point in time, the surveillance
video reflects appellant had his back to the second shooter. Once the second
shooter fired, appellant turned around and engaged in a gunfight with the second
shooter. This evidence, however, does not establish a basis of foreseeability on the
part of appellant that firing his weapon might cause another individual to shoot and
kill complainant. The facts of this case are distinguishable with respect to
foreseeability from precedent relied on by the State. See Dowden v. State, 758
S.W.2d 264, 268 (Tex. Crim. App. 1988) (appellant convicted of capital murder
after engaging in gunfight with police causing one police officer to mistakenly fire
at, and kill, another officer); Ryder v. State, 581 S.W.3d 439, 451 (Tex. App.—
Houston [14th Dist.] 2019, no pet.) (during course of sex with minor complainant,
appellant caused his wife’s sexual organ to contact complainant’s mouth and
complainant’s sexual organ to contact his wife’s mouth).
Ultimately, the existence of a causal connection is a question for the jury’s
determination. Fountain v. State, 401 S.W.3d 344, 358 (Tex. App.—Houston [14th
Dist.] 2013, pet. ref’d). However, the State’s arguments confused the jury about its
role in determining causation because the jury was repeatedly told that causation
existed if appellant was the first to fire a gun.
13
Other relevant information in the record
The jury’s confusion is evident in the record. The jury sent six different
notes to the trial court. One of the jury notes asked for clarification on the elements
of murder:
In the charge, the section defining murder states, “if you find from the
evidence beyond a reasonable doubt on or about the 31st of December
2016, in Harris County, Texas, the defendant, Herbert Briscoe, did
then and there commit a felony, namely, aggravated assault, and in the
course or furtherance of the commission of the offense, committed an
act dangerous to human life, namely, by shooting at Kionn Lamothe,
then you will find the defendant guilty of murder, as charged in the
indictment.” Does the verbiage “by shooting at Kionn Lamothe” mean
specifically shooting at the individual, or does shooting towards the
individual’s general direction?
This jury note reflects the jury believed that appellant shot in complainant’s
direction and was grappling with whether this act was sufficient to establish his
culpability for the death of complainant. Although the trial court responded by
referring the jury to the evidence and the jury charge, neither the jury charge nor
the evidence resolve the jury’s confusion. While the elements of both murder and
aggravated assault require that appellant acted “intentionally and knowingly,” the
concurrent-causation instruction recites the more general causation standard that
“if you find from the evidence beyond a reasonable doubt that the death of
[complainant] would not have occurred but for the [appellant’s] conduct . . .
operating alone or concurrently with another cause . . . you will find the [appellant]
criminally responsible.”
Despite all the arguments at trial focusing on the charged offense of murder,
it is noteworthy the jury convicted appellant with the lesser-included offense of
aggravated assault.
14
As instructed by the charge,9 the jury had to find that appellant intentionally
or knowingly caused bodily injury to complainant to convict appellant of
aggravated assault. 10 However, aggravated assault, a lesser-included offense of
murder, requires the same mens rea as murder—in this case, harm that is
intentionally or knowingly caused. Given the lack of physical evidence tying
appellant to the death of the complainant, the jury note described above in
combination with the verdict reflects a jury confused about the law and what the
State had to prove to secure a conviction of appellant.
9
The charge instructed the jury as follows:
If you find from the evidence beyond a reasonable doubt that on or about
the 31st day of December, 2016, in Harris County, Texas, the defendant, Herbert
Briscoe, did then and there commit a felony, namely, aggravated assault, and in
the course or furtherance of the commission of the offense, committed an act
clearly dangerous to human life, namely, by shooting at Kionn Lamothe, in a
public place occupied by others and did thereby cause the death of Kionn
Lamothe, then you will find the defendant guilty of murder, as charged in the
indictment.
You are further instructed that before a person can be guilty of murder he
must have intentionally or knowingly caused the death, or he must have intended
to cause serious bodily injury and have intentionally or knowingly committed an
act clearly dangerous to human life that caused the death of the deceased. Unless
you so find from the evidence beyond a reasonable doubt, or if you have a
reasonable doubt thereof, or if you are unable to agree, you will next consider
whether the defendant is guilty of the lesser offense of aggravated assault.
A person commits the offense of assault if the person intentionally or
knowingly causes bodily injury to another.
A person commits the offense of aggravated assault if he commits assault,
as hereinbefore defined, and the person:
(1) causes serious bodily injury to another; or
(2) uses or exhibits a deadly weapon during the commission of the
assault.
10
We note that the jury charge does not correctly reflect the elements of assault as
defined in the Penal Code. Tex. Penal Code Ann. § 22.01(a)(1). However, appellant did not
object in the trial court, nor does he raise the issue on appeal. In addition, appellant does not
challenge the sufficiency of the evidence of assault.
15
In requesting the concurrent-causation instruction, the State conflated
concurrent causation (was the conduct of the second shooter also a cause
complainant’s death) with causation generally (was appellant a “but for” cause of
complainant’s death) and criminal responsibility for the conduct of another (was
appellant responsible for causing the conduct of the second shooter). The State’s
argument that appellant was responsible for everything that occurred after he shot
in the direction of complainant, in conjunction with the concurrent-causation
instruction, created confusion in the jury. The fact that the charge contained a
concurrent-cause instruction implied there was a concurrent cause involved or at
least evidence to support a finding of a concurrent cause. See Reeves v. State, 420
S.W.3d 812, 819 (Tex. Crim. App. 2013) (“We agree with the court of appeals that
‘[t]he provocation instruction’s presence in the jury charge implied that there was
some evidence to support every element of the provocation doctrine when there
was not.’”). Although not applicable to the facts of the case, the
concurrent-causation instruction appears to be a comment on the evidence
bolstering the legal theory argued by the State (the death of Kionn Lamothe would
not have occurred but for the defendant’s conduct. . . operating either alone or
concurrently with another cause).
This confused the jury into believing that the charge authorized appellant’s
conviction even if they did not find the elements of the offense beyond a
reasonable doubt. See Reeves, 420 S.W.3d at 818 (“it is the function of the charge
to lead and to prevent confusion”); Smith v. State, 612 S.W.3d 711, 719–20 (Tex.
App.—Houston [14th Dist.] 2020, no pet.) (jury charge error that is likely to
confuse or mislead can weigh in favor of “some” harm under Almanza). Given
these considerations, we cannot say with “fair assurance” that the error did not
have an “injurious effect or influence in determining the jury’s verdict.” Trevino v.
State, 100 S.W.3d 232, 243 (Tex. Crim. App. 2003); see also Elizondo v. State,
16
487 S.W.3d 185, 209 (Tex. Crim. App. 2016) (concluding appellant suffered some
harm when jury was instructed on provocation doctrine absent any evidentiary
support); State v. Lausch, 651 S.W.3d 546, 558 (Tex. App.—Houston [14th Dist.]
2022, pet. ref’d) (excerpt of case law inadvertently attached to verdict form
resulted in some harm to defendant); Watts v. State, 140 S.W.3d 860, 868 (Tex.
App.—Houston [14th Dist.] 2004, pet. ref’d) (“While it is unseemly to predicate
reversible error upon an accurate statement of the law, the Court of Criminal
Appeals clearly suggests by its opinion that an appellant may be harmed by such
an instruction.”).
We conclude, therefore, that the inclusion of the instruction resulted in some
harm to the appellant and constitutes reversible error. 11 Accordingly, we sustain
issue two.
III. CONCLUSION
Because we conclude that the trial court erred by including a
concurrent-causation instruction in the jury charge and that appellant was harmed
by the inclusion of the instruction, we reverse the judgment and award a new trial
to appellant. See Tex. Code Crim. Proc. Ann. art. 44.29(a).
/s/ Charles A. Spain
Justice
Panel consists of Chief Justice Christopher and Justices Jewell and Spain.
Publish — Tex. R. App. P. 47.2(b).
11
Having identified some harm to appellant arising from the two Almanza factors
considered, we need not consider the remaining factors. See Tex. R. App. P. 47.1; see also
Almanza, 686 S.W.2d at 171.
17