*1 Saenz, ruling. its See determining MONTGOMERY, Appellant, Jeri Dawn trial court was not
S.W.2d at 494. The the record for evidence required to search v.
raising a material fact issue without more Texas, Appellee. STATE guidance from the State. See specific No. 14-09-00887-CR. Suiter, Guthrie Texas, Appeals Court of 1996, no (Tex.App.-Houston [1st Dist.] (14th Dist.). Houston writ) court not abuse (stating a trial does not its discretion when it does consider June 2011. to which it was summary judgment proof Discretionary Review Granted directed).
not Sept.
We determine that the State did not fact genuine
raise a issue of material provide any controverting evi- Brand,
dence. See Casso v. (Tex.1989) (noting once a movant provided support
has sufficient evidence to summary judgment,
its motion for non- summary required produce
movant is
judgment dispute evidence that will evidence);
movant’s Great Am. Reserve Plumbing Supply
Ins. v. San Antonio Co. (“Evi-
Co., (Tex.1965) position
dence which favors the movant’s is unless it uncontrovert- considered
ed.”). Accordingly, we conclude that Re-
spondent conclusively established the State
lacked a belief that a reasonable substan-
tial connection or nexus existed between property Respondent seized activities,
any illegal drug dealing negated
therefore this element of the
State’s forfeiture action. The trial court motion for
properly granted Respondent’s
summary judgment, and we overrule the
State’s sole issue. issue,
Having overruled the State’s we judgment.
affirm the trial court’s *2 Sedita, Houston, appellant. for
Patricia Houston, Kugler, Appellee. Eric Justice Panel consists Chief JAMISON, HEDGES, and Senior Justice Justice HUDSON. lane,
OPINION move into the center he but unable to avoid hitting appel- the rear of JAMISON, MARTHA HILL Justice. Hyundai. lant’s The front bumper left *3 jury appellant A convicted Jeri Dawn Hyundai the F-250 struck the rear of the Montgomery criminally negligent homi- slightly right of center. At the time of punishment cide and assessed her at ten impact, appellant was almost completely years’ imprisonment, probated for ten lane, the left and Willis was about halfway $10,000 issues, years, eight and a fine. between the left lane and the center lane. appellant argues that the evidence against Appellant safety had not entered the barri- her is insufficient and the trial court erred er before she was struck Willis. by excluding expert’s some of her testimo- Appellant Hyundai could not control her ny limiting and her cross-examination of her, after Hyundai Willis struck and the one of the State’s witnesses. Because the began to rotate di- counterclockwise evidence is not sufficient to sustain the barrier, safety rection. It crossed the and jury’s finding appellant acted with the the Hyundai front of the struck the middle requisite criminally negli- mental state for of the passenger side of Chevro- Housle/s homicide, gent we reverse and render. let on the entrance ramp. Appellant’s Hyundai flipped onto its driver’s side and BACKGROUND continued to skid on pavement until it 24, 2008, p.m. At about 8:30 on March stop. Housley’s came to a Chevrolet be- appellant Hyundai was Santa gan direction, to rotate in a clockwise Fe in the center lane of the three-lane jumped it a curb separating the entrance adjacent service road to Interstate 45. ramp and the left lane of the service road. had exited freeway Cochise Willis flipped It over and came upside to rest was his Ford F-250 the left lane seatbelt, down. wearing Wilcox was not Housley, of the service road. Terrell with and he was thrown out of the Chevrolet seat, passenger Chance in the Wilcox was during the accident. He died at the scene. driving a on Chevrolet Blazer the entrance maintained Willis control of his vehicle and ramp freeway, which was to the left stop emergency came to a lane of ramp of the service road. The and service the service road. separated by widening road were solid Soots, investigator Ronald accident lines, triangle
white
which formed a
often
Office,
County
with the Harris
Sheriffs
“safety
referred to as a
barrier.” The
dispatched
was
to the scene of the acci-
dry
roads were
but dark.
scene,
dent. He
in-
collected data at the
cluding measurements of tire
marks
Appellant
was
on her cell phone
road, and conducted
interviews.
follow-up
with a friend. When their call disconnect-
Wilbanks,
Brian
another accident investi-
ed, Appellant realized she had missed the
gator and
reconstructionist with
same
freeway,
attempt-
entrance to the
and she
office,
primarily responsible
was
for recon-
ed move from the center lane of the
structing the accident. Both Soots and
ramp.
service road to the entrance
She
opined that
re-
appellant
Wilbanks
was
began
pull
into the left
lane
sponsible because
made an unsafe lane
she
Appellant
service road in front of Willis.
change. Wilbanks testified that Willis
Willis,
slower than
who testi-
striking appellant’s
could not have avoided
fied that he was driving
speed
at the
limit
vehicle.
fifty
per
miles
hour.
When
lane,
abruptly” pulled
“rather
into the left
Appellant was indicted for the offense of
attempted
Willis
to slow his F-250
homicide. See Tex.
(Tex.Crim.App.2010);
al- S.W.3d
§ 19.05. The indictment
Penal Code
742, 750
change
lane
made an unsafe
Williams
that she
leged
lookout and
This court does not
keep
(Tex.Crim.App.2007).
and failed to
may
used as dead-
not sub-
juror
motor vehicle was
a thirteenth
that her
sit as
trial,
empha-
ly weapon. During
for that of the fact
judgment
stitute its
usage immedi-
re-evaluating
weight
sized
finder
accident,
jury
urging
Isassi,
ately prior to the
credibility of the evidence.
regarding
precedent”
to “set a
638; Williams, 235
at
ap-
found
driving.
usage while
Instead,
to the fact finder’s
we defer
*4
homi-
criminally negligent
guilty of
pellant
fairly
conflicts
responsibility to
resolve
and made
in the indictment
alleged
cide as
evidence,
testimony, weigh
to
the
the
deadly weap-
finding on the
an affirmative
inferences from the
to draw reasonable
issue,
punishment
the
which increased
Williams,
at 750.
facts.
235 S.W.3d
degree
a
felony to
third
jail
from a state
apply equally to circum-
principles
These
19.05(b).
12.35(c)(1),
§§
felony. See id.
Isassi,
direct evidence.
330
stantial and
duty
reviewing
a
at 638. Our
as
S.W.3d
Sufficiency
the
of
Evidence
pre-
that the evidence
court is to ensure
issues,
In
first six
she
appellant’s
actually
a conclusion that
supports
sented
legally and
the evidence is
argues
the
crime.
the
committed
defendant
her convic
factually
support
insufficient to
Williams,
at 750.
235 S.W.3d
criminally negligent homicide.
tion for
required to determine
mayWe
also be
a
appeal
pending,
this
While
the State has
as a matter of law whether
Appeals agreed
of
of the Court
Criminal
criminal
conduct that constitutes a
alleged
be used to
only
one standard should
whether there
offense. Id. To determine
sufficiency of the evidence
evaluate the
negli-
of criminal
is sufficient evidence
sufficiency. Brooks
legal
a criminal case:
enough
provide
jury
gence, “it is
(Tex.Crim.
State,
893, 895
v.
323 S.W.3d
correct definitions and
legally
with a set of
id. at 926
(plurality opinion);
App.2010)
simply
accept
then
turn them loose and
(Cochran, J.,
Accordingly, we
concurring).
See id. at 753
they
whatever
decide.”
sufficiency
of the evidence
review
recklessness).
(criminal
We must be cer-
proper ap
rigorous
case under a
this
proven
prima
the State has
tain that
Virginia,
v.
443
plication of
Jackson
criminal
as a mat-
facie case of
307,
2781,
App.-Houston [14th Dist.] and fourth In first A. of Review Standard error, challenges she the suffi points of ciency of the evidence to establish sufficiency of the reviewing When neglig mental state of criminal culpable evidence, all of the evidence in the we view Texas, person commits to de- light most favorable to the verdict ence.1 if homicide find offense termine whether a rational could (1) causes the death of an indi beyond he or she the essential elements of the crime (2) State, vidual, ought to have been aware doubt. Isassi v. 330 reasonable use of a cell was not al Appellant argues that we should not because the also leged Tex.Code Crim. any phone usage in the indictment. See evidence of her cell consider (requiring specific acts of determining sufficiency art 21.15 of the evidence Proc.
751
his or her conduct created a substantial
the carelessness must be such that
its
(3)
death,
risk of
seriousness would
apparent
anyone
be
risk,
which
failed
such who
community’s general
shares the
sense
”
degree
Tello,
a nature and
that the failure consti
of right
wrong.’
180 S.W.3d at
tuted a
deviation from the standard
(majority
opinion) (quoting People v.
ordinary
Boutin,
person
1,
care
would have
75 N.Y.2d
In vehicle cases where courts have
At trial
the State
findings
presented
homi-
evidence of
use of
held
speeding, racing,
driving,
without evidence of
her unsafe lane
cide
intoxication,
maintain a
clearly
change,
prop-
or
the evidence has
and her failure to
Only
established a
deviation from the
er lookout.
one of the three factors
example,
moving
standard of care. For
two re- was a
violation under Texas law:
*6
However,
making
egregious
change.5
cent cases involved
misuse
unsafe lane
heavy
placed primary emphasis
commercial vehicle or trailer. See
the State
on a
Tello,
in
(holding
the child was killed when A between Jones and the distinction ed. Id. at 495-96. Jones, the conduct present case is that in the front question (holding child overturning Jones’s conviction car) was isolated from other deci- seat reversing appellate a lower court’s here, factors; whereas, sion, sup- the evidence Supreme held Tennessee Court *8 cell ports appellant’s the conclusion that the evidence was insufficient to dem- that phone usage may have contributed to grossly onstrate that Jones deviated lookout and mak- keep proper The a the standard of care. Id. at Nevertheless, despite change. reached this determination an unsafe lane court maintained, the has both in the trial the fact that Tennessee had seat belt and State appeal, in the that it is the child restraint laws in force at the time of court and i.e., phone usage, factor the accident and the State introduced into additional a sim- driving, and television distracted which converted newspaper evidence articles criminally negli- ple moving establish violation into public service announcements to seat, unjustifiable passenger’s searching lishing a risk and in the substantial to someone box, something glove handing gross deviation from the standard of ordi- for care, seat, reading nary something mere distracted does not to a child in the back circumstances, signs. blameworthiness ne- Under rise to a level of moral billboard negligent driving. cessitating imposition of criminal sanc- these could cause activities However, in the absence of evidence estab- tions. reverse conviction present appellant’s homicide. The State failed We gent evidence, however, judgment acquittal. conduct render a appellant’s that the risk attached HUDSON, J., dissenting.11 demonstrating “lack likely thereto —while foresight, stupidity, irresponsibility, HUDSON, Justice, J. Senior HARVEY ordinary careless- thoughtlessness, [and] dissenting. deviation from the or-
ness”—was
majority
contends the
pre-
evidence
dinary
justifying
standard of care
criminal
sented at trial
is insufficient to sustain
Williams,
sanctions.
751. appellant’s
criminally negli-
conviction for
This case is not like those discussed above gent
offered
homicide because
no
intox-
involving high
speed, racing,
rates of
(1)
evidence to show:
an increased risk of
conduct;
clearly egregious
ication or other
phone usage;
traffic deaths due to cell
here,
shown no more than
the State has
(2)
risk,
any,
generally
that such
if
change.
and a bad lane
distracted
disapproved
known and
of in the communi-
establishing
Without evidence
increased
ty.
may
While the
well wish
for
phone usage
risk of fatal crashes from
evidence,
such
neither of the above factors
generally
and that such risk was
known
Thus,
is an element of the offense.
disapproved
community,
of in the
obligation
proof.
State had no
to offer such
phone usage
additional factor of cell
did Accordingly, I dissent.
not elevate
conduct to criminal-
The elements of
short,
ly negligent homicide.
the evi-
(1)
(2)
simply:
person;
homicide are
legally
insufficient to sustain
dence
(3)
(4)
death;
individual;
causes the
of an
the verdict.
by criminal
negligence. Juneau
(Tex.App.-Fort
We do not minimize the fact that
S.W.3d
Worth
ref'd);
pet.
see also Tex. Penal
tragically
Chance Wilcox
died
this acci
Code
(West
2003);
§
19.05
Tello v.
But
dent.
Texas law makes clear
Ann.
492 (Tex.App.-Houston
S.W.3d
assessing criminally
circumstances
2004), aff'd, 180
[14th Dist.]
negligent
judged
homicide are
from the
Here,
(Tex.Crim.App.2005).
first
at the time of
perspective
defendant’s
his
not in dispute. Appel
three elements are
actions,
hindsight.
or her
not from
See
only
lant contends
that when she caused
Williams,
6.08(d);
§
Tex. Penal
Code
victim,
of the
she did so without
death
Supported by
at 751-53.
addition
requisite culpable
mental state of
public
al scientific research and increased
negligence.”
“criminal
awareness,
may
day
Texans
one
determine
phone usage
operating
that cell
compo-
two
Criminal
has
morally blameworthy
vehicle is
conduct
(1)
engaging
nents:
conduct
creates
sanctions; however,
justifies
a substantial and
risk to an-
*9
the State failed to establish that such was
(2)
other;
per-
and
the actor’s
the case in March
at the time of this
gross
ceive the risk is a
deviation from
accident.
care. See Tex. Penal
ordinary standard of
6.03(d) (West 2003); Tello,
§
Ann.
Code
and
We sustain
first
fourth
“A acts with of the phone her cell at the time to sur- on respect ... circumstances with Further, admitted she was ought ... when he to accident.1 she rounding his conduct phone. by and her use of the cell be aware of a substantial distracted 6.03(d). distraction, § moved appellant risk.” Tex. Penal Due to this Ann. Code Thus, majority contends the State was the center lane of the suddenly out of while phone road, visibility, that cell use obliged night, poor to show access at However, a risk to others. driving poses looking without for oth- signaling, without phone lane, that cell use alleged the State never traveling vehicles in the inside and er others; rather, a risk to freeway ramp constitutes turn onto a attempted to appel- that alleged in its indictment contrary stripes control on the to traffic (1) failing to risky lant’s conduct was: pavement. (2) lookout; making proper
maintain a
the State
Accordingly, I would find
of-
change.
an unsafe lane
It would seem
significant
appellant
fered
evidence that
while
knowledge
common
be
a
by
phone,
her use of
was distracted
a
lookout constitutes
keep proper
interfered with her
the distraction
Hypothetically,
an extreme risk to others.
proper
a
lookout and
ability to maintain
showing
circumstances
a driver failed
that she
change,
make a safe lane
proper
might
maintain a
lookout
include
have
aware that her unsafe
ought to
been
(1) legally
evidence that he or she was:
change
keep
proper
lane
and failure to
a
(2)
blind;
driving without corrective lens-
unjustifi-
lookout created
substantial
(3)
directions;
book,
es;
or
reading
map,
able risk.
(5)
(4) asleep
fatigued;
browsing
or
a cell
B. The risk of
(6)
Internet;
makeup;
cosmetic
applying
generallg
is
known
(9)
(7)
(8) rubbernecking;
day-dreaming;
community
disapproved of in the
(10)
landmarks;
looking
scenery
or
or
For conduct to rise to the level of crimi-
eating, drinking,
searching
or
the vehicle
risk must be of such
negligence,
nal
“[t]he
Here,
attempted to
for a snack.
the State
the failure to
degree
a nature and
proper
to maintain a
appellant
show
failed
deviation
perceive it constitutes
distracted
lookout because she was
of care that an
standard
phone.
use of a cell
would exercise under all the cir-
person
Thus, contrary
majority’s
asser-
from the actor’s
cumstances as viewed
tion, the State had no burden to show that
standpoint.”
Tex.
Penal
Code ANN.
always
6.03(d). Thus,
§
the essence of
commonly dangerous, general-
distracting,
is the failure of the actor to
ly risky, or causes increased traffic deaths.
the risk created
his or her
only to show that in this
The State had
conduct. Mendieta
circumstances,
case,
appel-
under these
(Tex.Crim.App.1986).
distracting,
lant’s use of a cell
was
by drivers is
phones
it
The use of cell
dangerous,
risky
prevented
because
pervasive. According to the National
maintaining
her from
lookout.
Reviewing
light
the evidence in the
most fa
1. The
asserts
ended her
must,
verdict,
we
the accident
vorable to the
as
conversation before
However,
Soots,
appellant was entitled to conclude that
occurred.
Ronald
acci
*10
investigator
County
at the time of the accident. See
dent
with the Harris
on
State,
633,
testified,
(Tex.
Office,
638
Sheriff's
"The cell
Isassi v.
330
Crim.App.2010);
235
that she
Williams v.
showed-—the records show
was on
742,
(Tex.Crim.App.2007).
at or around the time of the crash.”
Administration,
Second,
Safety
Traffic
whether an actor’s
Highway
conduct con
gross
stitutes a
during
daylight
moment
deviation from the stan
any given
“At
dard of care that
hours,
800,000
by
would be
an
being
vehicles are
driv-
exercised
over
ordinary person in the same
cell
circumstances
by
en
someone
a hand-held
question
constitutes a
of fact to be re
majority
considers the in-
phone.”2
by
solved
the fact finder. Phillips v.
teresting
any
of whether
conduct can
issue
381 (Tex.Crim.App.
“gross
ordinary
be a
deviation” from the
1979). Here,
jury
was never asked to
in
engaged
by
standard of care when it is
conclude whether the
of
use
segment of the
significant
popula-
such a
while
is
under all circum
unsafe
analysis,
tion.
their
relies
conditions,
driver,
An
stances
alert
Supreme
on the rationale of the Tennessee
traffic,
road,
in
traveling
light
on a rural
in
Jones,
Court
lane use State, (Tex.Crim.App. phone, of a cell under the circumstances 1987). ordinary prudent person What an here, presented may have led to her fail- would do is not the same standard as what ure to maintain a lookout and mak- people generally. example, do For when ing an lane change, unsafe the State was asked, cigarette readily most smokers will obligation prove under no smoking concede that is dangerous and phone generally on a cell constitutes a However, definition, imprudent. 100% “gross Likewise, deviation” from the stan- cigarette of all smokers smoke. generally of care or disapproved significant dard of number of although a drivers community. phones driving,3 one recent use FAQs Policy Compiled Driver Electronic Device Use in Statement 2009), (Sept. http://www-nrd. at 1 available at Driving, Distracted U.S. Dep’t Transp., Nat'l nhtsa.dot.gov/pubs/8 84.pdf (estimating Highway http://www. Safety Admin., Traffic that drivers in of all vehicles use some 11% nhtsa.gov/Driving Safety/Distracted + + given during type any time Driving/Policy Compiled + + + + Statement and hours). daylight FAQs (last Driving + on + Distracted + visited 2011); May see also U.S. Dep’t Transp., 3. See AAA Found, Safety, for' Traffic Cell Highway HS DOT Safety Admin., Nat’l Traffic (Dec. Driving: Update Phones Research *11 of from the standard of driv deviation that more than 80% study revealed care, affirm the conviction. phone a cell while driv I would ers believed study and another ing dangerous,4 than 80% of drivers more
revealed that problem.5 Even it was a serious
believed 2003, Traffic Highway the National that seven reported
Safety Administration making a call phone believed
in ten drivers dangerous.6 more It is sim driving
made human condition that fact of the ply sad HAAGENSEN, Coy Appellant, Samuel “I can seems to believe beat each of us Thus, of gross what is a deviation odds.” gross Texas, deviation of you Appellee. care for is not of The STATE me. care for No. 06-10-00198-CR. if it could be shown Accordingly, even Texas, Appeals Court routinely Texas drivers drive that 100% of Texarkana. use, phone to cell while distracted due prevent jurors twelve such fact would May Submitted 2011. rationally concluding reasonably and Decided June 2011. ordinary prudent person would that no drive while distracted due to
use.
C. Conclusion imposes upon burdens
The supported by
State not law. Because the presented abundant evidence that the substan- by her
tial and risk created her failure led to
distracted —which making
to maintain a lookout and change
an unsafe lane —constituted 2008), Danger- ing Though They http://www.aaafoundation. Even Know This Is available at 8, 2009), (re- (The org/pdf/CellPhonesandDrivingReport.pdf ous Harris Poll No. June surveys http://www.hamsinteractive.com/ at porting of two in which available the results respondents admitted to talk- 61% vault/Harris-Interactive-Poll-Research-Safe- 53% (noting Driving-2009-06.pdf of driv- ing pre- 73% a cell owned a cell admitted in 2006 ers who ceding thirty days); Gallup Royal, Dawn talking driving). on a cell Org., Survey Drowsy National of Distracted Driving And Behaviors: Attitudes (Mar. 2003), Taylor, supra, 4. at 4. http://www.nhtsa. available at gov/people/injury/drowsy_drivingl/distracted supra, at 11. 5. AAA Found, 20RE- Safety, 03/DISTRACTEDFINALFINDINGS% for Traffic study noted that while talk- PORT.pdf (reporting in three This also that "about one aggressive phone "rated on a cell above outgoing of all drivers [use] drivers, speeding, run- excessive and drivers incoming driving,” or calls while and "about ning lights public perceptions red in terms of drivers drive while on a one four Id. of their seriousness.” phone”); Humphrey Taylor, wireless see also Interactive, Large Majority Harris of Drivers Royal, supra, at 32. Phones Use Them While Driv- Who Own Cell