                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00386-CR

MICHAEL ALLEN PECK,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                         From the 272nd District Court
                              Brazos County, Texas
                        Trial Court No. 10-01388-CRF-272


                          MEMORANDUM OPINION


       The jury convicted Michael Peck of the offense of murder. The trial court found

the enhancement paragraphs to be true and assessed punishment at confinement for

life. We affirm.

                                   Background Facts

       There is no challenge to the sufficiency of the evidence. On January 19, 2010, the

body of Julie Perez was found in the driveway of a residence. Perez had ligature marks

on her neck and face. During their investigation, police determined that Perez had been
with Michael Peck on the night she died. Police questioned Peck about the death of

Perez. Peck initially denied knowing Perez, but later admitted that Perez was in his car

on the night of her death. Peck told police he and Perez had argued in his car and that

he threw Perez out of his car after she tried to steal from him. Peck said that he left

Perez on the road. Peck was subsequently indicted for the murder of Perez.

                                        Jury Charge

        In his sole issue on appeal, Peck argues that the trial court committed jury charge

error in failing to apply the law to the facts on the issue of concurrent causation. Peck

filed a request for a special instruction on concurrent causation to be included in the

court’s charge. The evidence at trial showed that Julie Perez suffered from a heart

condition and that she had a pacemaker and a defibrillator. The record also shows that

Julie had cocaine present in her body at the time of her death. Peck’s defensive theory

was that Perez’s heart condition and drug use contributed to her death.                 Peck’s

requested instruction is as follows:

        Now if you find from the evidence beyond a reasonable doubt that on or
        about the 19th day of January, 2010, in Brazos County, Texas, the
        defendant, MICHAEL PECK, did then and there, intentionally or
        knowingly cause the death of an individual, namely, Julie Perez, by
        strangling her with an unknown object or smothering her with an
        unknown object or his hand, and you further find beyond a reasonable
        doubt that the result would not have occurred but for MICHAEL PECK’s
        conduct of strangling Julie Peck (sic) with an unknown object or
        smothering Julie Perez with his hand or unknown object, 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.

The trial court refused the requested instruction, and instructed the jury:


Peck v. State                                                                           Page 2
                                             IV.

              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.

                                              V.

               Now if you find from the evidence beyond a reasonable doubt that
        on or about the 19th day of January, 2010, in Brazos County, Texas, the
        defendant, MICHAEL PECK, did then and there, intentionally or
        knowingly cause the death of an individual, namely, Julie Perez, by
        strangling her with an unknown object or smothering her with an
        unknown object or his hand, then you will find the defendant, MICHAEL
        PECK, guilty of murder as charged in the indictment.


        Peck argues that the trial court erred in failing to apply the law to the facts on the

issue of concurrent causation.      A defendant is entitled to an instruction on every

defensive issue raised by the evidence, regardless of whether the evidence is strong,

feeble, unimpeached, or contradicted, and even when the trial court thinks that the

testimony is not worthy of belief. Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim. App.

2007). Conversely, he is not entitled to an instruction that is not raised by the evidence.

Hutcheson v. State, 899 S.W.2d 39, 42 (Tex. App.─Amarillo 1995, pet. ref’d).

        The Texas Penal Code sets out the concept of concurrent causation. 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).



Peck v. State                                                                           Page 3
        Dr. Satish Chundru, Deputy Chief Medical Examiner for Travis County, testified

at trial that the cause of death for Julie Perez was “homicide asphyxia, including

ligature strangulation and/or smothering.”       Dr. Chundru stated that Perez’s heart

condition did not cause her death “by itself” and that Perez’s death was not caused by

cocaine. Dr. Chundru further testified that strangulation alone was sufficient to cause

the death of Perez.

        The defense called Dr. Jonathan Arden, a forensic pathologist to testify at trial.

Dr. Arden stated that “there are three factors, all of which are important, all of which in

my opinion contributed to her death. And I cannot separate any one of them or any

two of them to the exclusion of the others.” Dr. Arden testified that the three factors

were neck compression, heart disease, and cocaine.           Dr. Arden did not believe

strangulation by itself caused the death of Perez. Dr. Arden stated that “all three of

these complimentary processes acted together to cause her death.”

        To be entitled to a charge on concurrent causation, the record must contain some

evidence that the concurrent cause was sufficient to produce the result and that the

conduct of Peck was insufficient to produce the result. Hutcheson v. State, 899 S.W.2d at

42. There is no evidence in the record that Perez’s heart condition and cocaine use were

clearly sufficient to cause Perez’s death and that strangulation was clearly insufficient to

cause her death. Peck has not shown that he was entitled to have the jury charged on

concurrent causation as he tendered. See Hutcheson v. State, 899 S.W.2d at 42. We

overrule the sole issue on appeal.




Peck v. State                                                                         Page 4
                                       Conclusion

        We affirm the trial court’s judgment.




                                          AL SCOGGINS
                                          Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed November 8, 2012
Do not publish
[CRPM]




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