      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00407-CR



                                  John Wesley Horn, Appellant

                                                 v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
         NO. 38777, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found John Wesley Horn guilty of three counts of intoxication manslaughter

and two counts of aggravated assault with a deadly weapon, assessing punishment at twenty years’

imprisonment on each count. See Tex. Penal Code Ann. §§ 22.02, 49.08 (West 2011). Evidence

at trial showed that Horn drove his truck across his travel lane and into an oncoming car, killing

Russell Rutland, two of Rutland’s children, and injuring Rutland’s two other children. Testing

revealed that Horn’s blood contained 1.3 grams per liter of methamphetamine, and Horn’s expert,

Dr. Patricia Rosen, testified that Horn met the legal definition of intoxication.

               Horn’s court-appointed attorney filed a motion to withdraw supported by a brief

concluding that this appeal is frivolous and without merit. The brief meets the requirements of

Anders v. California, 386 U.S. 738, 744 (1967), by presenting a professional evaluation of the record

demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S.
75, 80 (1988); High v. State, 573 S.W.2d 807, 811-13 (Tex. Crim. App. 1978); Currie v. State,

516 S.W.2d 684, 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553, 553 (Tex. Crim.

App. 1972); Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Horn received a copy

of counsel’s brief and was advised of his right to examine the appellate record and to file a pro se

brief. See Anders, 386 U.S. at 744.

                 Horn then secured another attorney who presented this Court with a “post-Anders

brief,” reiterating Horn’s trial argument that the accident was caused by “something other than

methamphetamine intoxication” and arguing that Horn was egregiously harmed by the jury charge’s

omission of a paragraph applying the law of concurrent causation to the facts.1 Without delving into

the problems arising from Horn’s additional lawyer, we will briefly explain why this contention lacks

arguable merit. See Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009); Bledsoe v. State,

178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).

                 We review an unpreserved complaint about charge error in criminal cases for

egregious harm. Huizar v. State, 12 S.W.3d 479, 484-85 (Tex. Crim. App. 2000); Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). Egregious harm errors “affect ‘the very

basis of the case,’ deprive the defendant of a ‘valuable right,’ or ‘vitally affect a defensive theory.’”

Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (quoting Almanza, 686 S.W.2d at 172).

The egregious harm standard is difficult to prove and such determination must be made on a

case-by-case basis. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011) (quoting Hutch,

922 S.W.2d at 172). We consider the jury charge, the state of the evidence, including the contested


        1
            Horn failed to object to the charge. Cf. Tex. R. App. P. 33.1.

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issues and weight of probative evidence, the counsel’s argument, and any other relevant information

in the trial record as a whole to determine whether the complained-of error constituted egregious

harm. Id. (citing Almanza, 686 S.W.2d at 171).

               The concurrent causation instruction in the court’s charge tracked section 6.04(a)

of the penal code, which provides 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 Ann. § 6.04(a) (West 2011). When concurrent causes

are present, there are two possible combinations of “but for” causation: (1) the defendant’s conduct

was sufficient itself to have caused the harm, regardless of a concurrent cause, or (2) the defendant’s

conduct and the other cause together may be sufficient to have caused the harm. Robbins v. State,

717 S.W.2d 348, 351 (Tex. Crim. App. 1986).

               Horn interprets section 6.04(a) to mean that he is not criminally responsible if

his falling asleep would have been sufficient to cause the accident and his intoxication alone would

not have been sufficient. However, a defendant relying on a concurrent causation theory seeks to

establish that some additional cause, other than his conduct, was clearly sufficient by itself to

produce the result and the defendant’s conduct, by itself, was clearly insufficient. See id. (emphasis

added). A concurrent causation question arises only when more than appellant’s conduct, i.e.,

“another cause in addition to [appellant]’s conduct,” was in issue. Hughes v. State, 897 S.W.2d 285,

297 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 1112 (1995) (citing Robbins, 717 S.W.2d at 351

& n.2); see also Michael J. McCormick et al., Texas Practice Series: Criminal Forms and Trial



                                                  3
Manual § 103.8 (11th ed. 2005 & Supp. 2012) (providing pattern for court’s charge on concurrent

causation, including instruction “if you believe the conduct of a third party [name] was a concurrent

cause . . .”) (emphasis added). In this trial, there was no evidence that some additional cause—other

than Horn’s conduct—brought about the accident. As such, Horn was not entitled to a charge on

concurrent causation. See Robbins, 717 S.W.2d at 351 n.2 (concluding that “no concurrent cause

existed” when “only appellant’s conduct was involved”). We must now consider whether Horn was

egregiously harmed by the charge as given.

                Horn complains that the charge omitted an application paragraph for concurrent

causation. The absence of an application paragraph on concurrent causation deprives the jury of

authority to convict on that theory. See Hughes, 897 S.W.2d at 297 (concluding jury could not

convict on causation theory that was not applied to facts of case); Mallard v. State, 162 S.W.3d 325,

334 (Tex. App.—Fort Worth 2005, pet. ref’d) (holding that appellant was not egregiously harmed

by inclusion of abstract definition of concurrent causation). Juries are authorized to convict based

on the application paragraph of a jury charge, not an abstract instruction on a legal theory that is not

applied to the facts. McFarland v. State, 928 S.W.2d 482, 515 (Tex. Crim. App. 1996) (en banc);

Campbell v. State, 910 S.W.2d 475, 477 (Tex. Crim. App. 1995); Martin v. State, 252 S.W.3d 809,

814 (Tex. App.—Texarkana 2008, pet. dism’d); Mallard, 162 S.W.3d at 334.

                Here, because the concurrent causation instruction did not apply that theory to

the facts of the case, Horn could not have been convicted on a concurrent causation theory. Nor was

he entitled to a concurrent causation instruction without evidence that some additional cause,

other than his conduct, was at issue. On this record, we conclude that Horn’s contention that he was



                                                   4
egregiously harmed by the charge’s omission of an application paragraph on concurrent causation

lacks arguable merit. See Degrate v. State, 86 S.W.3d 751, 754 (Tex. App.—Waco 2002, pet. ref’d)

(concluding that application paragraph of charge that made no reference to concurrent causation

theory did not present egregious harm because concurrent causation was not supported by evidence).

               Having reviewed the record as well as briefs from Horn’s counsel and the State, we

find no reversible error. See Garner, 300 S.W.3d at 766; Bledsoe, 178 S.W.3d at 826-27. We agree

with appointed counsel that the appeal is frivolous, and his motion to withdraw and motion to

substitute counsel are granted.

               The judgment of conviction is affirmed.




                                             Jeff Rose, Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: January 30, 2013

Do Not Publish




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