Christopher Benard Hardy v. the State of Texas

NO. 12-23-00249-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CHRISTOPHER BENARD HARDY, § APPEAL FROM THE 475TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Christopher Benard Hardy appeals his conviction for intoxication manslaughter. In his
sole issue on appeal, Appellant contends that the trial court erroneously excluded a concurrent
causation instruction in the jury charge. We affirm.

BACKGROUND
Appellant was indicted for the offense of intoxication manslaughter. Appellant pleaded
“not guilty” to the charge and the matter proceeded to a jury trial.
In relevant part, the evidence at trial shows that Appellant and the victim met on Facebook
in 2020. They were involved in a romantic relationship and were living together on September
24, 2021, the date of the offense.
Appellant and the victim spent much of the day before the car crash at a friend’s house.
Appellant testified he and his friend drank alcoholic beverages throughout the day. The couple
left their friend’s house and returned to their shared residence. Appellant testified that the victim
became upset with him because she realized he had been “cheating” on her. After smoking
marijuana, the couple left their residence around 3:00 a.m. to go to a gas station and buy tobacco
products.
During the drive from the convenience store, the couple’s argument over Appellant’s
infidelities escalated. According to Appellant, he did not respond to her accusations because he
knew they were true. As they approached their home, Appellant accelerated down a residential
neighborhood street at approximately seventy miles per hour, even though the speed limit is thirty
miles per hour. Appellant testified at trial that he was driving the vehicle, and admitted driving
fast. He also admitted being intoxicated and under the influence of marijuana at the time of the
crash. A blood test taken two hours after the accident showed that Appellant had a blood alcohol
concentration of 0.115 and Delta-9-THC, the “main component” of marijuana, in his blood.
For the first time during his trial testimony, Appellant claimed that, in her anger, the victim
jerked the steering wheel to the right. Appellant testified that he attempted to correct their course
by turning the wheel back to the left. A digital report, downloaded from the computer in
Appellant’s car, provided data which detailed the operation of his vehicle from approximately five
seconds before the crash. The data indicated that immediately before the crash, the vehicle turned
to the right and never steered back to the left as Appellant claimed. Nevertheless, Appellant
maintained that the vehicle’s equipment recording the data at the time of the crash must have
malfunctioned.
In any event, whether he or the victim caused the vehicle to veer to the right, their car
collided with two vehicles. Appellant’s car struck a parked truck on the side of the road with such
force that it pushed the truck backwards nearly ninety feet, and then his car collided with another
vehicle parked in a driveway.
The homeowners at the home where Appellant struck the parked vehicles awoke from the
sound of the crash and investigated. They heard Appellant repeatedly state that he could not go to
jail, and expressed anger when told the police were on the way. Appellant initially told the police
that “somebody hit me.” Later, while being examined at the hospital, Appellant told police that
he was “knocked out” and could not remember anything about the crash. Appellant admitted at

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trial that he lied about another vehicle striking his car and about driving under the speed limit prior
to the crash. Moreover, the following day, the homeowners notified the police that they found a
handgun and pills that appeared to be Xanax in their backyard, ostensibly because Appellant
discarded them there after the crash. Appellant admitted at trial that he was “partially at fault” for
the crash that caused the victim’s death.
At the time of the collision, neither Appellant nor the victim wore seatbelts. Appellant was
rattled by the accident, but otherwise uninjured. The victim, however, was killed instantly. The
medical examiner who performed the autopsy testified that the victim died of blunt force injuries
from the car crash, with a broken neck as the leading cause.
The jury found Appellant “guilty” of the offense, and after a punishment hearing, sentenced
him to twenty years of imprisonment. This appeal followed.

CONCURRENT CAUSATION INSTRUCTION
In his sole issue, Appellant contends that the trial court reversibly erred by denying his
request for a concurrent causation jury instruction in the court’s charge.
Standard of Review
We review jury charge error under a two-pronged test, by looking first to whether the
charge is erroneous. Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013). Second, we
ask whether Appellant was harmed by the error. Id. Where there was a timely objection, Appellant
must show he suffered “some harm.” Cyr v. State, 665 S.W.3d 551, 556 (Tex. Crim. App. 2022)
(citing TEX. CODE CRIM. PROC. ANN. art. § 36.19 (West 2006)).
To determine whether the court’s charge is erroneous, we review a trial court’s refusal to
include a defensive issue in the charge for an abuse of discretion. Wesbrook v. State, 29 S.W.3d
103, 122 (Tex. Crim. App. 2000). An accused is entitled to an instruction on every defensive issue
raised by the evidence. Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987); see TEX.
CODE CRIM. PROC. ANN. art. 36.14 (West 2007) (providing that, in a felony jury trial, the court
must deliver to the jury “a written charge distinctly setting forth the law applicable to the case”).
This is true whether the evidence is strong or weak, unimpeached or contradicted, and regardless
of what the trial court may think about the credibility of the evidence. Hamel v. State, 916 S.W.2d
491, 493 (Tex. Crim. App. 1996). Indeed, we must view the evidence in the light most favorable

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to the defendant’s requested submission. Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App.
2006).
Applicable Law

Inclusion of an instruction on the defensive issue requires the defendant to demonstrate
that there is evidence supporting it. Cyr, 665 S.W.3d at 556. The scope of causation under the
Texas Penal Code is broad, allowing courts to find causation where “the result would not have
occurred but for [the] conduct, operating either alone or concurrently with another cause.” TEX.
PENAL CODE ANN. § 6.04(a) (West 2021).
An actor need not be the sole cause of the harm. Causation is established where the conduct
of the defendant is the “but for” cause “operating alone or concurrently with another cause.” Cyr,
665 S.W.3d at 557 (citing Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986)).
“Another cause” is one in addition to the actor’s conduct, “an agency in addition to the actor.” Id.
(citing Robbins, 717 S.W.2d at 351 n.2).
Where two or more causes satisfy “but for” causation, a defendant remains liable if his
conduct was either sufficient to have caused the result alone “regardless of the existence of a
concurrent cause,” or both causes “together” were sufficient to cause the result. Robbins, 717
S.W.2d at 351 (emphasis in original). An individual’s guilt may not be premised on his conduct
being a mere “contributing factor” without more. Cyr, 665 S.W.3d at 557.
Addressing confusion over the application of the concurrent causation instruction among
lawyers and trial courts, the Texas Court of Criminal Appeals recently clarified the specific
circumstances that raise the instruction as follows:

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 entitled to
an instruction on concurrent causation and potentially escape liability for the full extent of the
damage caused under concurrent causation.

Id. Restated, Section 6.04(a) entitles a defendant to an instruction on concurrent causation when
he shows (1) “an agency in addition to the actor” was a “but for” cause of the result charged, and

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(2) some evidence demonstrates his conduct is “clearly insufficient” to cause the harm and the
other concurrent cause is clearly sufficient to cause the harm. Id. at 557-58.
Discussion
Appellant requested a jury instruction on concurrent causation. After taking up the matter
during the charge conference, the trial court denied the request. Appellant objected to its omission.
On appeal, Appellant argues that there was evidence that the victim jerked the steering wheel of
the vehicle to the right of the roadway, which contributed to the car crash resulting in her death,
and this evidence required the trial court to include the concurrent causation instruction. Appellant
essentially argues that the victim’s actions alone caused her death. We disagree.
As we stated above, Appellant’s version of the events is contradicted by the scientific
evidence. However, even viewing the evidence in the light most favorable to him, we would
nonetheless conclude that both acts together caused the victim’s death, and we likewise cannot say
that his acts are clearly insufficient to have caused her death.
Appellant posited for the first time during his testimony that the victim grabbed the steering
wheel and jerked it to the right, and he attempted to regain control and correct course by turning
the steering wheel to the left. Under the Cyr hypothetical discussed above, viewed in the light
most favorable to Appellant, both Appellant’s actions and the victim’s alleged actions were “but
for” concurrent causes for her death. Id. That is, the combined force of both actors caused her
death. This is evident in that Appellant admitted driving the vehicle seventy miles per hour
(confirmed by the vehicle’s crash report) down a residential street with a speed limit of thirty miles
per hour while intoxicated on alcohol and marijuana (confirmed by blood analysis) when she
allegedly grabbed the steering wheel. Obviously, this state of mind impaired his judgment,
reaction time, and ability to properly correct the victim’s alleged act of grabbing the wheel. The
ensuing collision with parked vehicles while driving that fast certainly contributed to her death.
His own attorney asked “And, certainly, 70 miles an hour down to zero probably rattled you?” and
Appellant responded, “Absolutely.” As Appellant confirmed at trial, he was “partially at fault”
for her death.
Accordingly, we cannot conclude that Appellant’s actions were clearly insufficient to cause
the harm and her concurrent cause in grabbing the steering wheel was clearly sufficient by itself
to cause her death. See id. at 557-58. In other words, although the victim’s alleged act might have
been sufficient to cause her death, we cannot simultaneously conclude that Appellant provided

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some evidence that his intoxication while speeding on a residential street in an intoxicated state
and subsequently making a corrective action was “clearly insufficient” to cause her death. See id.
Therefore, we hold the trial court did not err in declining to include a concurrent causation
instruction in the jury charge. See id.
Appellant’s sole issue is overruled.

DISPOSITION

Having overruled Appellant’s sole issue, the trial court’s judgment is affirmed.

BRIAN HOYLE
Justice

Opinion delivered July 3, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 3, 2024

NO. 12-23-00249-CR

CHRISTOPHER BENARD HARDY,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 475th District Court
of Smith County, Texas (Tr.Ct.No. 475-0295-23)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED, and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.

Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.