John Wesley Horn v. State ( 2013 )

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
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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
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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
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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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