Rhodes v. State, 06-98-00234-CR

• Decision Date: 22 June 1999
• Docket Number: No. 06-98-00234-CR,06-98-00234-CR
• Citation: 997 S.W.2d 692
• Parties: (Tex.App.-Texarkana 1999) PHILLIP RHODES, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 692

997 S.W.2d 692 (Tex.App.-Texarkana 1999)

PHILLIP RHODES, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-98-00234-CR

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

Submitted June 21, 1999

Decided June 22, 1999

From the 5th Judicial District Court Cass County, Texas, Trial Court No. 98-F-018

Before Cornelius, C.J., Grant and Ross, JJ.

OPINION

Opinion by Justice Ross

Phillip Rhodes was indicted for criminally negligent homicide. The jury found him guilty and assessed punishment at 180 days' confinement in a state jail facility and a $5,000.00 fine. The jury also recommended that imposition of the confinement be suspended and that Rhodes be placed on community supervision for a period of five years. See TEX. CODE CRIM. PROC. ANN. art 42.12, 15 (Vernon Supp. 1999). The judge sentenced Rhodes in accordance with the jury's verdict and recommendation by suspending imposition of the 180 days' confinement and placing him on community supervision for five years and by ordering him to pay the $5,000.00 fine. Rhodes appeals, contending that the trial court erred in refusing to include within its charge to the jury an instruction on voluntariness and in not granting the jury the opportunity to recommend that imposition of the fine also be suspended.

At trial, the State's witness Ronald Windham testified that he was traveling northbound on U.S. Highway 59, approaching an intersection controlled by traffic lights. Before reaching the intersection but after he saw a warning signal, he slowed as he approached the intersection. He further testified that Rhodes passed him just as they drove through the warning signal. Windham did not see Rhodes' brake lights come on. Upon entering the intersection, Rhodes collided broadside with a car driven by Eva Hatchett and Barbara Davis as a passenger. At the scene of the collision, Rhodes told Windham that he had not seen the light. Officer Archie Booth testified that he was the first law enforcement officer to arrive at the scene. Booth testified that Rhodes' vehicle left one foot of skid marks prior to the collision and three feet after the collision. Booth also testified that Davis died at the scene. Rayfield Harris testified that he saw the collision and afterward overheard Rhodes say that he did not see the light. Hatchett testified that she and Davis were proceeding across the northbound lanes when the green arrow on the traffic light appeared and, as she was crossing, she was struck by a vehicle going northbound. Hatchett testified that she received serious injuries and that her passenger died from the collision. Rhodes testified on his own behalf and admitted that he did not see any indication that he was approaching an intersection or traffic control light.

Rhodes first contends that an instruction on voluntariness based on TEX. PEN. CODE ANN. 6.01 (Vernon 1994), and an application of that instruction to the facts of his case should have been included in the court's charge to the jury. Rhodes asserts that he did not voluntarily participate in the running of the red light and, therefore, is not responsible for the results rendered from that act.

A person is guilty of criminally negligent homicide if he causes the death of a person by criminal negligence. TEX. PEN. CODE ANN. 19.05(a) (Vernon 1994). Criminal negligence as a culpable mental state is defined as follows:

"(d) A person with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes 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."

TEX. PEN. CODE ANN. 6.03(d)(Vernon 1994). A conviction for criminally negligent homicide requires evidence showing that the defendant was unaware of the risk, or that he failed to perceive the risk created by his conduct. See Thomas v. State, 699 S.W.2d 845, 851-52 (Tex. Crim. App. 1985).

Section 6.01 of the Penal Code states, "[a] person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession." TEX. PEN. CODE ANN. 6.01(a). The evidence must show that an appellant committed a voluntary act with the requisite mental state. Moss v. State, 850 S.W.2d 788, 795 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd). A defendant is entitled to a charge on the issue of the voluntariness of his acts when warranted by the evidence. See Brown v. State, 955 S.W.2d 276, 280 (Tex. Crim. App. 1997). To be entitled to the charge, there must be evidence of an independent event, such as the conduct of a third party, that could have precipitated the incident. See id.

In the present case, Rhodes is essentially arguing that his failure to stop for the red...