What time is it?

Carter v. State (Unpublished Memo): Conviction for intoxication manslaughter stands even though the defendant’s intoxication may not have been the only cause of the victim’s death.  Motorcycle operator and rider were both drunk.  Wreck killed the rider.  Rider had apparently been so drunk that she had trouble staying on the back of the bike — in fact, she may have triggered the wreck by starting to slide off the seat. 

So was the wreck caused by the operator’s intoxication, or by the rider’s?  That’s a trick question.  It’s not an either-or proposition.  A “both” answer supports the conviction. “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) (Vernon 2003).

This is where time is crucial.  The operator tries to keep the focus entirely on the wreck itself.  But, much like it did in another case this year, the Tyler court focuses on the wreck, the earlier events on the road, and the even earlier decision to ride.  As to the wreck, the operator’s own accident reconstruction expert admitted that his intoxication may have been “a factor.”  (Incidentally, the operator’s blood alcohol level, by ER blood sample, was .146)  In short, a sober rider might have been able to keep the bike on the road in spite of what the rider was doing.  A sober operator might also have maintained a more reasonable speed throughout the night’s journey.  More to the point, a sober operator wouldn’t have made this ride in the first place.  The operator had been drinking at a “biker bar” with his girlfriend/rider. He knew that she was literally stumbling drunk.  He admitted as much, and even said that he didn’t start the ride until she had had a few minutes at the bar to sober up.

The operator’s claim of charge error gets nowhere because his requested instruction wasn’t a correct statement of the law.  His proposed instruction tried to box the jury into an either-or question.  The trial court was right to reject it.

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