Cyr, Danna Presley

       In the Court of Criminal
           Appeals of Texas
                           ══════════
                           No. PD-0257-21
                           ══════════

                      DANNA PRESLEY CYR,
                               Appellant

                                   v.

                      THE STATE OF TEXAS

   ═══════════════════════════════════════
        On State’s Petition for Discretionary Review
           From the Eleventh Court of Appeals
                       Gaines County
   ═══════════════════════════════════════

      YEARY, J., filed a dissenting opinion.

      In its petition for discretionary review in this case, the State
Prosecuting Attorney (SPA) urges the Court to hold that the “concurrent
cause” provision of Section 6.04(a) of the Texas Penal Code simply has
                                                                       CYR – 2




no application to an offense that is committed by omission rather than
by commission. TEX. PENAL CODE § 6.04(a). 1 As I understand the Court’s
opinion today, it implicitly rejects that categorical approach, but it
concludes that Appellant has failed to point to any evidence in the case
that would have justified the trial court in submitting a “concurrent
cause” instruction to the jury in any event. I disagree with both the SPA
and the Court, and so I respectfully dissent.
                    I. INJURY TO A CHILD BY OMISSION
       According to the Penal Code, “[e]lement of offense means: (A) the
forbidden conduct; (B) the required culpability; (C) any required result;
and (D) the negation of any exception to the offense.” TEX. PENAL CODE
§ 1.07(22). 2 As for “conduct,” that “means an act or omission and its
accompanying mental state.” Id. § 1.07(10). “‘Omission[,]’” in turn,
“means failure to act.” Id. § 1.07(34). “Conduct” is not an offense unless
it is defined to be so by statute or otherwise. TEX. PENAL CODE § 1.03(a).
So, “conduct” that constitutes a failure to act is only an offense when it
is defined as such by, e.g., statute; indeed, the law must “provide[] that
the omission is an offense or otherwise provide[] that [the actor] has a
duty to preform the [omitted] act.” TEX. PENAL CODE § 6.01(c).
       Section 22.04(1)(a) of the Penal Code defines one such offense. It


       1  In its entirety, Section 6.04(a) reads: “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).

       2All emphases to the quoted materials are added by the author of this
opinion unless otherwise specified.
                                                                           CYR – 3




authorizes prosecution of an offender when she “. . . intentionally,
knowingly, or recklessly by omission, causes to a child . . . serious bodily
injury[.]” TEX. PENAL CODE § 22.04(a)(1). “An omission that causes”
serious bodily injury “is conduct constituting an offense under this
section if . . . the actor has a legal or statutory duty to act; or . . . the
actor has assumed care, custody, or control of a child[.]” Id. § 22.04(b).
In this way, Section 22.04 of the Penal Code clearly regards the “failure
to act” to be “conduct” that can actually “cause” a child serious bodily
injury⸻at least so long as the actor has a duty to act, or if the actor has
“care custody, or control” of that child, and the actor’s “failure to act” is
in dereliction of that duty.
       In this case, Appellant was the child’s mother. The “failure to act”
that caused her child serious bodily injury, as alleged in the indictment,
was two-fold: (1) her failure to protect the child from attack by her
husband, the child’s father; and (2) her failure to obtain timely medical
intervention for the child following the brutal attack. 3
        At trial, Appellant argued that the “conduct” on her part⸻her
“failure to act”⸻by which she is alleged to have “caused” her child
serious bodily injury, also had a “concurrent cause” consistent with
Section 6.04(a) of the Penal Code; namely, her husband’s wholly
independent “conduct” in viciously assaulting their child. Absent her

       3  Without objection from the State, the jury charge limited the jury’s
consideration to the first paragraph of a one-count, two paragraph indictment
alleging that, on June 29, 2013, Appellant “recklessly, by omission, cause[d]
serious bodily injury . . . to [J.D.], a child 14 years of age or younger, by failing
to protect [J.D.] from being grabbed, squeezed, or shaken by Justin Clark Cyr,
or by failing to seek reasonable medical attention for the said child, when [she]
had a legal or statutory duty to act as the parent of the said child, or [she] had
assumed care, custody, or control of the child[.]”
                                                                            CYR – 4




husband’s act of commission, of course, the child would have suffered no
injury at all. Appellant argues that there was evidence presented at her
trial to support a jury finding that her husband’s assaultive conduct was
“clearly sufficient” to “cause” their child serious bodily injury while also
supporting a finding that her own “conduct” in “failing to act” was
“clearly insufficient” to “cause” that injury. Based on this evidence, she
claimed on appeal, the trial court should have granted her requested
instruction under Section 6.04(a). With such an instruction, she
maintained, she would have been equipped to argue to the jury that,
because her own “conduct” was independently “clearly insufficient” to
“cause” the child’s injury, the jury was authorized to reject the State’s
attempt to hold her “criminally responsible” for the “result” that her
husband’s “conduct” was independently “clearly sufficient” to “cause.” 4
The court of appeals agreed, and reversed Appellant’s conviction. Cyr v.
State, 

, 387, 389 (Tex. App.⸻Eastland 2021).
       We granted the SPA’s petition for discretionary review to try to

       4  Section 6.04(a)’s “unless” clause does not explicitly say that the
concurrent cause must be independently “sufficient,” while the actor’s conduct,
independently “clearly insufficient,” to cause the proscribed result. But this
Court has concluded in construing the statute that “[i]f the additional cause,
other than the defendant’s conduct, is clearly sufficient, by itself, to produce
the result and the defendant’s conduct, by itself, is clearly insufficient, then the
defendant cannot be convicted.” Robbins v. State, 

 (Tex.
Crim. App. 1986) (italicized “and” in the original). And I agree that this
conclusion necessarily derives from the word “sufficient” itself. After all, unless
conduct is “sufficient” by itself to cause a result, then it is not really “sufficient”
at all. Any contrary reading of the “unless” clause would seem to render it self-
nullifying. If, in deciding whether the actor’s conduct is “clearly insufficient” to
produce the proscribed result, a court would be entitled to consider the “clearly
sufficient” concurrent cause, the actor’s conduct will, by definition, always be
likewise “sufficient” (indeed, “clearly sufficient”). The clause would entirely
cancel itself out.
                                                                        CYR – 5




shed some light on the admittedly bizarre interface between the law
authorizing criminal responsibility for “conduct” by “omission”⸻that is,
the “failure to act”⸻and the law with respect to “causation,” and, more
particularly, “concurrent causation” as set out in Section 6.04(a). The
SPA urges the Court to simply hold⸻as an absolute matter⸻that
Section 6.04(a) has no application where criminal responsibility by
omission is concerned, because the kind of “causation” contemplated by
the “failure to act” upon a duty to do so is wholly removed from the sort
of “causation” the Legislature had in mind in passing Section 6.04(a).
The idea seems to be that, with an offense of omission, it is the
dereliction of duty more than actually causing the proscribed “result”
that is the sine qua non of the offense. 5 The Court today does not adopt
the SPA’s categorical approach, but it seems to me that it might as well
have. For my part, I would affirm the judgment of the court of appeals
and put the onus of clarification on the Legislature itself, if what it
plainly said in Section 6.04(a) was somehow not what it believed it was
saying.
                         II. THE SPA’S ARGUMENT
       I do not think the text of the applicable statutes will bear the


       5In the conclusion of that part of its brief that makes this argument,
the SPA asserts:

               When a parent has a legal duty to protect a child from
       injury but recklessly fails to do so, she is responsible for the
       result regardless of what or who the risk of injury was. If
       [A]ppellant is guilty of failure to protect, concurrent causation is
       inapplicable as a matter of law. That is what Section 22.04
       effectively says. That is what this Court should explicitly say.

State’s Brief on the Merits at 20.
                                                                          CYR – 6




construction the SPA would have us impose upon them. Section 22.04(a)
explicitly regards an “omission”⸻a “failure to act”⸻as “conduct” that
can “cause” serious bodily injury. There is no reason to suppose that such
a “cause” would not be subject to the express provisions of Section
6.04(a), subject to that section’s provision with respect to “criminal
responsibility” for a result that would not have occurred “but for” that
cause, even if there existed “another” “but for” “cause.” TEX. PENAL CODE
§ 6.04(a).
       It occurs to me that it will be the State, not a defendant, who will
more often seek to invoke this opening clause of Section 6.04(a), in any
case involving a “concurrent cause”⸻if only to foreclose a defensive
argument that the defendant cannot be found “criminally responsible”
because his was not the only “conduct” or “cause” “but for” which the
proscribed “result” “would not have occurred[.]” Id. Nothing in the text
of Section 6.04(a) suggests that it would regard conduct constituting an
omission any differently than conduct constituting commission. 6 And

       6   The SPA likens criminal responsibility by concurrent cause involving
omission to criminal responsibility as a party under Chapter 7 of the Penal
Code, in which context Section 6.04(a) has been held not to apply. State’s Brief
on the Merits at 17; TEX. PENAL CODE Chapter 7; Hanson v. State, 

, 699–700 (Tex. App.⸻Austin 2001, pet. ref’d). But criminal responsibility
as a party under Chapter 7 of the Penal Code does not implicate “another
cause” for a proscribed result. When an actor is found guilty as a party under
Chapter 7, there is still (at least ordinarily) only one cause of the result as
perpetrated by the conduct of the principal actor. The defendant is then
criminally responsible for that cause by virtue of his independent behavior in,
e.g., soliciting, aiding, encouraging, etc., the conduct of the principal actor that
caused the result. TEX. PENAL CODE § 7.03(a)(2). In contrast, when a defendant
is criminally liable by virtue of his failure to act under Section 22.04(a), the
defendant is criminally responsible for his own conduct, and the statute itself
regards his “omission” as a “cause” of the proscribed result. So long as there is
“another cause” as well, Section 6.04(a) is implicated.
                                                                         CYR – 7




there is no more reason to suppose conduct that constitutes an omission
would not be equally subject to the section’s “unless” clause: “unless the
concurrent cause was clearly sufficient to produce the result and the
conduct of the actor clearly insufficient.” Id.
       The SPA objects to such an application of Section 6.04(a) because
it would thwart what the SPA deems the legislative intent of Section
22.04(a) to punish an actor for failure to adhere to her parental duties,
which the SPA regards as the gist of the “omission” offense. 7 But this
Court has consistently pronounced that the “gravamen” of injury to a
child is the required “result,” and this is true no less for a violation of
the statute by omission than by commission. See Villanueva v. State, 

 (Tex. Crim. App. 2007) (“As we explained in Jefferson
[v. State, 

 (Tex. Crim. App. 2006)], the ‘gravamen’ of
the offense is the same [whether the conduct is “omission” or
“commission”]; the statute focuses on the result caused, without
criminalizing any particularized conduct by which that result may have
been caused.”); Nawaz v. State, ___ S.W.3d ___, No. PD-0408-21, 

, at *6 (Tex. Crim. App. June 22, 2022) (noting that in



       7  See State’s Petition for Discretionary Review at 4 (“Whatever the
mechanism of injury, a defendant is criminally responsible for it if it would not
have occurred but for her failure to act on her duty. That’s the point.”); id. at 5
(“The jury convicted [A]ppellant of recklessly causing serious bodily injury to
her child in part because she failed to protect her from [her husband]. The
evidence on that point has been found to be sufficient. That should make
[A]ppellant responsible for the injury even if it occurred entirely at [her
husband’s] hands. * * * Concurrent causation should not apply to cases like
this.”); State’s Brief on the Merits at 20 (“If [A]pellant is guilty of failure to
protect, concurrent cause is inapplicable as a matter of law. That is what
Section 22.04 effectively says. That is what this Court should explicitly say.”).
                                                                       CYR – 8




Jefferson, “the Court expressly held that the ‘focus’ of the injury to a
child statute was the result of conduct, not whether any of the specified
results are caused by act or omission”). Would the SPA prosecute a
defendant who fails to protect her child or seek medical attention, as is
her parental duty, in the face of the mere threat of an injurious result?
Section 22.04(a) does not authorize that. On its face, it requires a finding
that the omission actually “caused” an injurious “result.” 8 And, as I have
said, nothing in the text of Section 6.04(a) would exempt an omission
that causes injury from its purview.
       Finally, the SPA argues that for the Court to declare that Section
6.04(a) applies to omission offenses would perpetrate an absurdity,
resulting in an inability on the State’s part to ever prosecute omission
offenses with any hope of success. 9 The SPA’s concern in this regard is,
in my view, exaggerated. As the Court’s opinion today seems to
recognize, Majority Opinion at 21–24, Appellant might still be

       8   Nor am I inclined to believe that Appellant could be successfully
prosecuted for attempted injury to a child on these hypothetical facts, under
Section 15.01(a) of the Penal Code. TEX. PENAL CODE § 15.01(a). To commit a
criminal attempt under this provision, the actor must commit an “act” (not an
“omission”) that amounts to more than preparation that tends but ultimately
fails to “effect” the commission of the offense intended. Id. She must also do so
“with specific intent to commit” the offense. Id. This Appellant was charged
only with recklessly causing serious bodily injury by omission. It is hard to
imagine how she could be found guilty of harboring the specific intent to
recklessly cause serious bodily injury. It would have to have been her “conscious
objective or desire” to be “aware of but consciously disregard a substantial and
unjustifiable risk that” “the result will occur.” TEX. PENAL CODE § 6.03(a), (c).

       9  State’s Brief on the Merits at 17 (“If failing to protect [Appellant’s
child] from [her husband] recklessly caused [the child’s] injuries, [A]ppellant
cannot be innocent because [her husband] caused [the child’s] injuries. A
contrary rule would be absurd. It would swallow the offense whole.”).
                                                                   CYR – 9




prosecuted successfully, without triggering Section 6.04(a)’s “unless”
clause, if her failure to obtain medical treatment for her child resulted
in additional or incrementally greater injury to the child than her
husband’s conduct originally caused. See Villanueva, 227 S.W.2d at 749
(failing to obtain medical treatment for injury caused by another may
result in a “separate and discrete” injury than that which was originally
caused, which may be punished separately from causing the original
injury consistent with double jeopardy principles); Nawaz, 

 at *6 n.7 (omission may result in a separately prosecutable
offense if it results in a “separate and discrete, or at least incrementally
greater injury”) (quoting Villanueva). If her “failure to act” was not, by
itself, “clearly insufficient” to cause that separate, greater injury, her
omission will not be insulated from prosecution by Section 6.04(a), and
she may still be convicted based on her omission.
                       III. THE COURT’S OPINION
      The Court divides its analysis into two parts. It first addresses
whether Appellant was entitled to a concurrent causation instruction
with respect to the State’s first theory of prosecution, that Appellant
failed in her duty to protect her child from her husband’s assault.
Majority Opinion at 15–21. It then separately analyzes whether she was
entitled to a concurrent causation instruction regarding the State’s
second theory, that she failed in her duty to seek medical attention to
treat the injury that her husband caused. 

 at 21–24. The Court
concludes that, for different reasons, Appellant was not entitled to the
instruction under either of the State’s theories of omission. In my view,
however, Appellant was entitled to the instruction as it relates to both
                                                                       CYR – 10




theories of omission.
                           A. Failure to Protect
       The Court asserts that evidence with respect to Appellant’s
failure-to-protect omission is really just an “alternative-cause”
argument in disguise. See Majority Opinion at 16 (“Thus, we find
Appellant is not arguing concurrent causation, but only alternative
causation under the guise of concurrent causation.”). Because the case
does not even implicate a “concurrent cause,” the Court seems to reason,
it need not address the text of Section 6.04(a) at all to resolve whether
an instruction was required. I could not disagree more strenuously with
this approach.
       This case clearly involves a concurrent cause, not a mere
“alternative cause.” An “alternative cause” is just what it suggests: a
different causal agent for the result than that alleged in the State’s
charging instrument. See Barnette v. State, 

 (Tex.
Crim. App. 1986) (“Appellant’s theory was that she left the baby alone
and he caused his own injury.”). Here, Appellant is plainly invoking not
an alternative cause, but “another cause”⸻a cause in addition to her
own conduct⸻and one that she claims, with justification, operated
“concurrently” with her omission to cause the child’s initial injury as
alleged in the indictment. 10 The question therefore plainly devolves into
one of whether that concurrent cause was “clearly sufficient” to cause
the injury while her omission was “clearly insufficient.” TEX. PENAL


       10 It is admittedly odd to speak of the failure to prevent a result as a
“cause” of that result. But, as already pointed out, it is Section 22.04(a) itself
that has identified “omission” as a “cause” for the proscribed injury.
                                                                        CYR – 11




CODE § 6.04(a). The Court does at one point purport to invoke Section
6.04’s “plain meaning,” Majority Opinion at 17, but if anything, the
Court simply ignores the actual language of Section 6.04(a) itself, never
once directly referring to the “unless” clause in its analysis.
       It seems to me that the “unless” clause could hardly have any
plainer application than it does to the facts of this case. If Appellant’s
husband had not assaulted the child, the child would have suffered no
injury at all. His commission of the offense was therefore “clearly
sufficient” to cause the whole extent of the initial injury the child
suffered. 11 On the other hand, Appellant’s omission could not, by itself,
have caused the child’s initial injury. Failing to protect the child cannot
cause an injury that no other causal agent ever inflicts. The jury could
have rationally concluded that her omission was “clearly insufficient,”
by itself, to cause the injury. It should have been equipped, therefore, to
acquit her on that basis. Robbins v. State, 

 (Tex.
Crim. App. 1986).
       The Court seems (as best I understand) to justify simply ignoring
the plain, literal language of Section 6.04(a) by invoking some vague
alternative notion of “foreseeability,” as gleaned from this Court’s
opinion in Williams v. State, 

 (Tex. Crim. App.
2007). Majority Opinion at 17–18. It further cites to sources such as (1)
a treatise, (2) the Model Penal Code, and (3) civil law notions of



       11 One might argue that, had Appellant only satisfied her duty to protect
the child, her husband’s conduct in assaulting the child would not have been
“clearly sufficient” to cause the injury. But this fails to regard her husband’s
conduct “by itself” in applying Section 6.04(a)’s “unless” clause. See note 4, ante.
His conduct “by itself” was clearly sufficient to cause the injury.
                                                                 CYR – 12




“proximate causation” as apparent justification for transposing the plain
terms of Section 6.04(a), including its “unless” clause, into an inquiry
about culpable mental states. See 

 at 18−19 (“Foreseeability is an
implicit requirement for causation that criminal law addresses through
culpability.”); see also id. at 21 (“Appellant’s arguments contest
culpability, rather than allege concurrent causes.”). Ultimately, the
Court seems to conclude that, because the jury was already equipped to
acquit Appellant if it should find that she lacked the requisite culpable
mental state of recklessness, there was no need for a concurrent
causation instruction⸻indeed, that such an instruction would only have
served to confuse the jury. Id. at 16, 20. This is all purest judicial
invention, finding no origin whatsoever in the literal text of the statute.
I cannot subscribe to it.
                B. Failure to Seek Medical Attention
      In addressing the State’s second theory of omission (failure to
seek timely medical attention), the Court observes that “any causal
dispute regarding the source of [the child’s] initial injury necessarily
would not apply to the subsequent failure to provide reasonable medical
care.” Majority Opinion at 22. I agree with that in part. Here is where I
think I agree with the Court: Under the “unless” clause of Section
6.04(a), Appellant would have to show that her omission in failing to
seek medical attention was “clearly insufficient” to cause whatever
greater, incremental injury that may have occurred, beyond that which
was caused by her husband in the initial assault.
      But here, Appellant’s husband’s initial assault was also an
obvious “but-for” cause of the separate, greater injury. So, for Appellant
                                                                        CYR – 13




to obtain the concurrent causation instruction, she must have been able
to point to evidence in the record that would permit the jury to rationally
conclude that her husband’s initial assaultive conduct would inevitably
have caused the incrementally greater injury regardless of any medical
intervention—and thus, that her omission in failing to obtain such
medical care was “clearly insufficient” to cause that greater injury.
Otherwise, she would not be entitled to a Section 6.04(a) instruction.
       This was the same theory of omission that the court of appeals
focused on in its opinion. Cyr, 630 S.W.3d at 386–87. It held that,
because the most the medical experts could say was that it was
“possible” that timely medical intervention “could” have mitigated the
child’s injuries, a rational jury might still have found that Appellant’s
failure to seek medical attention was “clearly insufficient” to cause the
greater incremental injury, while her husband’s conduct was “clearly
sufficient.” Id. at 387, 391. Under those circumstances, the concurrent
cause provision Section 6.04(a), including the “unless” clause, would be
invoked. I see no reason to second-guess that assessment. I therefore
agree with the court of appeals that Appellant was entitled to a
concurrent cause instruction on that theory of omission as well. 12


       12 Indeed, Appellant may well have been entitled to separate application
paragraphs to apply concurrent causation to the two discrete injuries that the
Court today has identified: (1) the injury Appellant “caused” by failing to
protect her child from the initial assault, and (2) the incrementally greater
injury caused by her failing to seek medical attention. Moreover, that separate
injuries are involved raises certain other potential anomalies as well⸻albeit
anomalies that have not been raised by the parties in this case and are not
before us in our present review. I do not, therefore, advocate that the case
should be reversed on these bases, but only mention them in passing.
        First, if the injury that is the object of the failure-to-protect allegation
is different than the injury that is the object of the failure-to-seek-medical-
                                                                      CYR – 14




                              IV. CONCLUSION
       I would affirm the court of appeals’ judgment. A plain reading of
the statute dictates as much. If the Legislature is dissatisfied with its
handiwork, it is up to the Legislature to modify the statutory scheme. It
is not this Court’s job to ignore or tweak plain statutory language to suit
its own sensibilities. I respectfully dissent.


FILED:                                      December 21, 2022
PUBLISH




attention allegation, then the State may well have drafted an indictment that
suffers from duplicity. See George E. Dix & John M. Schmolesky, 42 TEXAS
PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 25:207, at 338 (11th ed.
2011) (“Duplicity also occurs if one count alleges several violations of the same
penal statute. Whether a count is duplicitous under this rule may depend upon
precisely what constitutes a single violation of one underlying penal statute.”).
Because injury to a child is a result-of-conduct offense, the allowable unit of
prosecution is a function of how many injuries occurred. Nawaz, 

 at *6. The first paragraph of Appellant’s indictment, which combines
both theories of omission, apparently alleges two discrete injuries, and
therefore two offenses, at once. Such an indictment could arguably be subject
to a motion to quash. See TEX. CODE CRIM. PROC. art. 21.24(b) (“A count may
contain as many separate paragraphs charging the same offense as necessary,
but no paragraph may charge more than one offense.”).
        Second, while it is true that jurors do not ordinarily have to attain
unanimity with respect to the manner and means by which offenses are
committed, here, the two manners and means (“failure-to-protect” and “failure-
to-seek-medical-attention”) would seem to pertain to discrete offenses: the
initial injury, and the incrementally greater injury resulting from not
obtaining medical treatment, respectively. Arguably, Appellant may have been
entitled to an instruction to the jury that it could not convict her on either
theory without first reaching unanimous agreement. Cf. Stuhler v. State, 

 (Tex. Crim. App. 2007) (requiring jury unanimity with respect
to separate statutorily defined results under the injury to a child statute).