Graham v. State

• Decision Date: 20 July 1983
• Docket Number: Nos. 66184,66185,s. 66184
• Citation: 657 S.W.2d 99
• Parties: Darrell Glenn GRAHAM, Appellant, v. The STATE of Texas, Appellee. Larry Glynn UTECHT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 99

657 S.W.2d 99

Darrell Glenn GRAHAM, Appellant, v. The STATE of Texas, Appellee.

Larry Glynn UTECHT, Appellant, v. The STATE of Texas, Appellee.

Nos. 66184, 66185.

Court of Criminal Appeals of Texas En Banc.

July 20, 1983.

Rehearing Denied Oct. 12, 1983.

J. Michael Coman, Pasadena, for appellant.

John B. Holmes, Jr., Dist. Atty., James C. Brough and Paul Coselli, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

These are appeals from convictions for criminally negligent homicide. The jury assessed punishment for appellant Graham is a $2,000.00 fine and 270 days in jail; the punishment for appellant Utecht is a $2,000.00 fine and 180 days in jail.

The evidence established that on December 16, 1977, in the early evening, two young couples left Liberty to drive to Pasadena to see an Elvis impersonator at the Cactus Club. Lloyd Gay drove Mary Lou Johnson's 1977 Pontiac Firebird, carrying her and her brother, Carl Johnson, and his date, Carrie Green. After the show, the couples left and headed home shortly before 11:00 p.m.

In the interim, appellant Graham and Janice Weeks were both at the home of appellant Utecht and his wife, Rebecca, in Pasadena. The group apparently decided to go to another friend's house to shoot pool. Weeks asked Graham if he would give her a ride because she had never ridden in his Corvette. Shortly before 11:00 p.m. the group left.

According to witnesses, Graham's Corvette and Utecht's Ford pickup were stopped side by side at a light, headed east on Red Bluff, right before the intersection of Red Bluff and the feeder roads of the Beltway 8 overpass in Pasadena. The women "looked like they were hollering back at each other--seemed like they were egging each other on." When the light changed to green, the truck and the Corvette took off "real fast" with "tires squealing," gaining speed steadily as they approached the Red Bluff-Beltway 8 intersection. At all times, the light at that intersection facing appellants was red.

Simultaneously, Lloyd Gay and his group in the Firebird turned on to the Beltway 8 feeder headed north. James Ross testified he was about four car lengths behind the Firebird which was moving very fast. As they approached the light at Beltway 8 feeder and Red Bluff, it was yellow. According to Ross, he could see the Firebird was going to run the yellow light and he decided to try it too. Ross realized the light would be red by the time he hit the intersection, and he began to "look for a way out," when he saw to his left Utecht's truck between the highway pilings supporting the Beltway 8 overpass. Ross testified he started braking and could see a collision between the Firebird in front of him and the truck approaching from his left was imminent.

In the intersection, Utecht's truck first hit the Firebird driven by Gay. The light changed. Then Graham's Corvette hit the Firebird and landed on top of it; a Plymouth Fury landed on top of the Corvette. Four other cars were also ultimately involved in the collision. James Goyer, Fire Chief for the City of Pasadena, testified that appellant Graham was walking around the Corvette in somewhat of a daze and said he was wondering if he was going to get a ticket for racing.

Appellant Utecht's wife, Rebecca, was dead at the scene; appellant Graham's passenger, Janice Weeks, was dead at the scene; Lloyd Gay, the driver of the Firebird and one of his backseat passengers, Carrie Green, were dead at the scene; Carl Johnson died a few days later.

Appellants contend the evidence is insufficient to support the jury's guilty verdicts.

Specifically, appellants argue the evidence fails to establish "a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint," as required by § 6.03(d). ¹

In this case, appellants were charged under V.T.C.A. Penal Code, § 19.07(a), which provides:

"A person commits an offense if he causes the death of an individual by criminal negligence."

It was recently observed in Lugo-Lugo v. State, 650 S.W.2d 72 (Tex.Cr.App.1983) (Opinion Concurring) that all statutory proscriptions under the 1974 Penal Code may be divided into "elements of conduct" for purposes of analyzing and distributing the "required culpability" element of the given offense under Chapter 6. It was further noted that a person cannot be criminally negligent with respect to the "nature" of his conduct, but rather, criminal negligence goes to "circumstances surrounding conduct" or "result of conduct."

In reviewing the "elements of conduct" extant in the offense here charged, it is clear the "nature of conduct" is "cause;" the "result of conduct" is "death of an individual;" the statute, § 19.07, supra, however, does not include any "circumstances surrounding conduct." Therefore, the "required culpability" of the statute goes--consonant with all homicides--to the "required result:" "death of an individual." ²

Conceptualized in this fashion, the burden of proof on the State was to show that appellants ought to have been aware of a substantial and unjustifiable risk that death of an individual would occur as a result of their conduct; that the failure to perceive the risk of a resulting death was a gross deviation from the standard of care that an ordinary person would exercise under all circumstances as viewed from appellants' standpoint.

In short, it is the "failure to perceive" the risk of a resulting death which must rise to the level of a "gross deviation" from an ordinary standard of care.

When coupled with the acts of speeding, racing and ignoring a steady red traffic control signal while approaching an intersection, the failure to perceive the risk of a death is clearly a gross deviation from the standard of care an ordinary person would exercise under all circumstances as viewed from the appellants' standpoint; moreover, all the ingredients of a criminally negligent homicide are present upon proof that a death did result. We hold the State did prove each of these ingredients and the evidence is therefore ample to support the jury's verdicts.

By their second through sixth grounds of error, appellants complain of the admission of certain "investigator's reports" which were appended to each of the five autopsy reports admitted into evidence.

The record reflects Dr. Joseph Jachimczyk, Chief Medical Examiner for Harris County, testified as to the cause of the deaths of the five victims. The State then asked Jachimczyk most of the questions which would establish the reliability of the written autopsy reports and thereby render them admissible into evidence as exceptions to the prohibition against hearsay under Article 3737e, V.A.C.S., the Business Records Act. ³

The State failed, however, to ask Jachimczyk if the employee or representative who made the records or memoranda had "personal knowledge of [the] act, event or condition" reflected therein. See Article 3737e, supra, § 1(b).

When the autopsy reports were offered into evidence as State's Exhibits 29-33 and tendered to defense counsel for inspection, the first objection lodged was:

"We have no objections to the first page signed by Dr. Jachimczyk or any chemical test made by Dr. Morgan, however, I don't know who H.H. Hall is, and there seems to be a report attached by Hall."

The prosecutor then adduced an explanation by the witness that Harvey Hall is a medical investigator who "makes the scene in my behalf and that is the information he submitted to me." Jachimczyk testified that Hall's report was a part of his own autopsy report.

The State again tendered the entire report contained in each exhibit. Appellants objected again:

"Objection to the part by Hall as being hearsay and it seems to go to the ultimate issue in this case."

This objection was overruled and the exhibits were admitted in their entirety.

Appellants now complain there was no indicia of reliability of the facts asserted in the investigator's reports, citing legion cases. The State's primary retorts are that the investigator's report is a part of autopsy reports required by law, ⁴ and that most of the facts contained therein were recorded on the basis of investigator Hall's personal knowledge.

It is true that most of the facts in the reports were recorded with personal knowledge; however, the assertions made in each report that the drivers of the Corvette and Ford truck "were racing and ran a red light" clearly were not made on the basis of Hall's personal knowledge, and were inadmissible.

However, we believe appellants' delayed objection to the "reliability" of these specific fact assertions is behindhand. For, as we have repeatedly attempted to demonstrate to the bench and bar, the most basic indicia of reliability of such records is the establishment of the socalled "predicate for admission." Clayton and Gallegos v. State, 652 S.W.2d 950 (Tex.Cr.App., 1983); Todd v. State, 598 S.W.2d 286 (Tex.Cr.App.1980); Porter v. State, 578 S.W.2d 742 (Tex.Cr.App.1979).

Often inattentively treated as some rote exercise, the statutory requisites for admission are the "indicia of reliability;" ⁵ accordingly, counsel would do well to require the offering party to specify the statute under which such records are offered and request time to obtain that statute so its requisites can be carefully followed, then explored in detail on crossexamination.

In this case, the fact of the entrants' "personal knowledge" was not established by the State; but, neither was this failure objected to or highlighted by the defense on crossexamination. Appellants' failure to so object or illustrate the State's failure to establish this "indicia of reliability" constitutes a waiver of the evidentiary complaint made here. Compare Porter, supra.

Accordingly, grounds of error two through six are overruled.

In their first...