Montgomery v. State

• Decision Date: 20 June 2012
• Docket Number: No. PD–1169–11.,PD–1169–11.
• Citation: 369 S.W.3d 188
• Parties: Jeri Dawn MONTGOMERY, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

369 S.W.3d 188

Jeri Dawn MONTGOMERY, Appellant,

v.The STATE of Texas.

No. PD–1169–11.

Court of Criminal Appeals of Texas.

June 20, 2012.

Patti Sedita, Sugar Land, for Appellant.

Eric Kugler, Asst. D.A., Houston, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

JOHNSON, J., delivered the opinion for a unanimous Court.

Appellant caused a three-car collision, during which a passenger in one of the other vehicles was killed. The grand jury indicted appellant for criminally negligent homicide, alleging that she had made an unsafe lane change and had failed to keep a proper lookout. A petit jury found appellant guilty and also found that appellant's vehicle was a deadly weapon. The jury assessed punishment of ten years' confinement in the Texas Department of Criminal Justice, probated for ten years, and a $10,000 fine. On appeal, the Fourteenth Court of Appeals found the evidence insufficient to sustain the conviction and rendered a judgment of acquittal.¹ This Court granted the four grounds raised in the state's petition for discretionary review.

1. The court of appeals erred in holding that “cell phone usage while operating a vehicle” does not constitute morally blameworthy conduct and does not justify criminal sanctions.

2. The court of appeals erred in presuming that the negligent act in a criminally negligent homicide must itself be an illegal act.

3. The court of appeals erred in holding that the evidence was insufficient to prove criminally negligent homicide where the appellant was traveling less than 39 miles per hour and was 92 feet past the interstate highway entrance ramp at the time that she attempted to cross in front of other vehicles to enter the freeway.

4. The court of appeals erred in holding that the evidence was insufficient to prove criminally negligent homicide where the appellant was admittedly distracted by talking on a cell phone at the time that she attempted to cross in front of other vehicles to enter the interstate highway ramp, which she had already missed by 92 feet.

After review, we find that the evidence was legally sufficient to sustain appellant's conviction for criminally negligent homicide, and we reverse the judgment of the court of appeals.

Facts

At approximately 8:30 p.m. on March 24, 2008, appellant was driving her mid-size SUV in the center lane of the three-lane service road adjacent to Interstate Highway 45 (IH–45) and talking on her cell phone. After hanging up the phone, appellant realized that she had missed the entrance ramp to IH–45, which diverged from the left lane of the service road. Appellant abruptly swerved into the left lane to try to get onto the ramp, even though the beginning of the solid-white-lined area on the pavement between the ramp and the service road, often known as the “safety barrier,” was behind her. There was disagreement at trial between the state's and appellant's experts as to how far past the entrance ramp appellant was when she changed lanes, but they agreed that it was after the safety barrier began. The state's expert testified that it was 92 feet past the entrance to the ramp; appellant's expert estimated a lesser distance.

As appellant moved abruptly into the left lane, she cut off Cochise Willis, who was driving his three-quarter-ton pickup truck in the left lane of the service road. Willis testified that he was driving at the speed limit—50 miles per hour-and that appellant was driving more slowly than Willis when she moved into the left lane ahead of him. Willis tried to slow down and get into the center lane, but he could not avoid hitting the rear of appellant's SUV, slightly to the right of its center. At the time of impact, appellant's vehicle was almost entirely in the left lane, and Willis's truck was over the dividing line between the left and center lanes. The collision caused appellant's vehicle to rotate in a counterclockwise direction, crossing over the safety barrier and onto the entrance ramp itself. The front of appellant's SUV struck the passenger side of Terrell Housley's pickup truck, which had just been driven onto the entrance ramp. Chance Wilcox was a passenger in the truck. After the collision, Housley's truck rotated clockwise, causing it to hit the curb that separates the entrance ramp and the safety barrier and flip over, coming to a stop upside down. As Housley's truck flipped, Wilcox was ejected, and he died at the scene from trauma to his head and neck. At the same time, the collision with Housley's truck caused appellant's SUV to flip onto its left side and skid to a stop. Willis never lost control of his truck. He pulled into the emergency lane of the service road and stopped.

The Court of Appeals's Opinion

The court of appeals found that the evidence was insufficient to establish the requisite mens rea of criminal negligence, noting that

the State presented evidence of appellant's use of a cell phone while driving, her unsafe lane change, and her failure to maintain a proper lookout. Only one of the three factors was a moving violation under Texas Law: making an unsafe lane change. However, the State placed primary emphasis on a factor that was not even listed in the indictment as proof of appellant's negligence: cell phone usage.... [B]y continuing that emphasis in this appeal, the State encourages this court to legislate through judicial fiat. Except under very limited circumstances not at issue in this case, using a cell phone while driving is not an illegal activity in Texas.²

Focusing on the prosecution's presentation of cell-phone use as a primary factor establishing appellant's criminally negligent behavior, the court of appeals found that the state introduced no competent evidence that cell-phone use while driving increases the risk of fatal accidents and held that, without evidence that such a risk was generally known and disapproved of in the community, no reasonable fact finder could find that using a cell phone while driving turned a simple moving violation into criminally negligent homicide. Thus, the state had failed to establish that appellant ought to have been aware of a substantial and unjustifiable risk that death would result from her actions and that her failure to perceive such a risk was a gross deviation from the standard of ordinary care.

The state argues that, had the court of appeals used the correct standard of review and viewed the evidence in the light most favorable to the verdict, the court would have concluded that the evidence was legally sufficient to sustain the conviction. The state contends that the court of appeals relied on two incorrect theories of law: (1) cell-phone use while driving does not constitute morally blameworthy conduct and therefore does not justify criminal sanctions; and (2) the negligent act in a criminally negligent homicide must itself be an illegal act. The state contends that the court of appeals required evidence of an increased risk of fatal crashes from cell-phone use, but such a risk is generally known and disapproved of in the community; the dangers of driving while talking on a cell phone have been well known for years and has even been criminalized in certain situations by the Texas Legislature. And even though appellant violated at least one traffic law when she made an unsafe lane change into the left lane, it is not the law in Texas that the negligent act must be illegal.

Sufficiency of the Evidence

The state's third and fourth grounds for review challenge the court of appeals's sufficiency review of the evidence. When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ³ The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimonies, and the reviewing court must not usurp this role by substituting its own judgment for that of the jury. ⁴ The duty of the reviewing court is simply to ensure that the evidence presented supports the jury's verdict ⁵ and that the state has presented a legally sufficient case of the offense charged.⁶ When the reviewing court is faced with a record supporting contradicting inferences, the court must presume that the jury resolved any such conflicts in favor of the verdict, even if not explicitly stated in the record.⁷

To make a legally sufficient showing of criminally negligent homicide, the state must prove that (1) appellant's conduct caused the death of an individual; (2) appellant ought to have been aware that there was a substantial and unjustifiable risk of death from her conduct; and (3) appellant's failure to perceive the risk constituted a gross deviation from the standard of care an ordinary person would have exercised under like circumstances.⁸ The circumstances are viewed from the standpoint of the actor at the time that the allegedly negligent act occurred.⁹ Criminal negligence does not require proof of appellant's subjective awareness of the risk of harm, but rather appellant's awareness of the attendant circumstances leading to such a risk.¹⁰ The key to criminal negligence is not the actor's being aware of a substantial risk and disregarding it, but rather it is the failure of the actor to perceive the risk at all.¹¹

Conduct that constitutes criminal negligence involves a greater risk of harm to others, without any compensating social utility, than does simple negligence.¹² The carelessness required for criminal negligence is significantly higher than that for civil negligence; the seriousness of the negligence would be known by any reasonable person sharing the community's sense of right and wrong.¹³ The risk must be “substantial and unjustifiable,” the failure to perceive it must be a “gross deviation” from reasonable care as judged by general societal standards. ¹⁴ “With criminal negligence, the defendant ought to have been aware...