Tello v. State
| Decision Date | 07 December 2005 |
| Docket Number | No. PD-987-04.,PD-987-04. |
| Citation | 180 S.W.3d 150 |
| Parties | John Guzman TELLO, Appellant, v. The STATE of Texas. |
| Court | Texas Supreme Court |
Bruno A. Shimek, Bryan, for Appellant.
Douglas Howell, III, Asst. District Atty., Bryan, Matthew Paul, State's Atty., Austin, for State.
Appellant was towing some dirt in a homemade trailer when the trailer unhitched from appellant's truck, and struck and killed a pedestrian. As a result of this incident, a jury convicted appellant of criminally negligent homicide as charged in an indictment alleging that appellant caused the victim's death by "failing to properly secure a trailer to his truck." See TEX. PEN.CODE, § 19.05(a).
The Court of Appeals affirmed the conviction. See Tello v. State, 138 S.W.3d 487, 497 (Tex.App.-Houston [14th Dist.] 2004). Appellant claims that the evidence is legally and factually insufficient to support a finding that he was criminally negligent under TEX. PEN.CODE, § 6.03(d), which defines criminal negligence:
A person acts 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.[1]
The evidence shows that appellant towed the trailer with his truck on many occasions in his construction business. When appellant's trailer unhitched from his truck and struck and killed the victim, there were no safety chains securing the trailer to the truck as required by state law.2 An accident investigator (Long) with the Bryan Police Department testified that safety chains would have prevented an unhitched trailer from detaching from the truck.
The evidence also shows that the ball (to which the trailer hitch attached) on the bumper of appellant's truck did not work properly. An accident reconstructionist (Sylvester) with the Bryan Police Department testified that this ball was loose and not tight against the bumper.
Long testified that the loose ball on the bumper of appellant's truck wobbled and that this was not "a proper attachment of a ball to a bumper."
Q. When you say the ball was loose, what do you mean "the ball was loose"?
A. The shank of the ball as it comes through the bumper you could wobble it in the hole. It wasn't tight down to the bumper.
Q. So when you grabbed the ball, you could actually wobble it in the hole?
A. Yes, I could.
Q. Is that a proper attachment of a ball to a bumper?
A. No, sir.
Another State's expert (Stubblefield) testified that a loose and wobbly ball presents a dangerous situation.
The State presented other evidence that the trailer hitch (which was supposed to lock in place to the ball on the bumper) also did not work properly. Long testified that the hitch was bent from having been hammered or hit a number of times. Long also testified that the hitch would not lock in place to the ball on the bumper. Long testified that this could cause the trailer to come loose.
Q. How do you bend a front portion like that?
A. Lots of ways, hammering on it, banging and bending. This end here is also bent.
Q. Let's take a look now. What areas are bent?
A. The front portion here at the front—which is straight on this one—it's a little bit different. This one has a little bit larger piece up here. This one is a little bit smaller.
Q. Hold that sideways if you can hold it—
A. (Witness complies) You can see up here at the front where it's bent forward.
Q. What other area is bent?
A. The finger portion where you grab to unlatch it back here are bent.
Q. Bent all the way down?
A. Yes, sir.
Q. So in the new hitch we have, [3]it sticks straight out?
A. Yes, sir.
Q. How is it on that one?
A. It's bent down around the back end here. Also the two tabs that are supposed to go in these slots, they're also bent up flat. They don't line up with the holes. They're up here on top of the round portion of the coupling.
Q. So is there anyway [sic] for the trailer hitch that [appellant] was operating, is there anyway [sic] for that hitch to lock in place?
A. None that I could see.
Q. And so if it can't lock in place, can it come loose?
A. Yes, it can.
Sylvester also testified that the hitch was bent from having been "hammered or hit on over time."
Stubblefield concluded that the hitch had been hammered a number of times in an attempt to get it to latch properly. He found that the hitch could not lock down on the ball. He testified that these concerns were "obvious."
Q. Can it lock down?
A. No, sir.
Q. Can you tell from looking at that hitch whether or not that's a brand-new problem or has that been there awhile?
A. (Witness continuing) It appears that this has been tapped down to get the hitch to latch properly before—for whatever reason because—I mean, you shouldn't have to—normally you do not have to hit a coupler like this to get it to latch.
Stubblefield opined that the hitch was faulty.
Q. That's part of your business that you do every day of the week?
A. Yes, sir.
Q. Did you have a chance to look, Mr. Stubblefield, at State's Exhibit 29?
A. Yes, sir.
Q. Did you do that last week, take a look at it? See what was wrong with it, what was right with it?
A. Yes, sir.
Q. Mr. Stubblefield, based on your experience and all your work, do you have an opinion about that hitch?
A. Yes, sir, I do.
Q. Would you tell the jury how you feel about that hitch?
A. Sure. I think that hitch is worn. It has been—appeared to be faulty and I personally wouldn't have pulled a trailer with that hitch on it. It's got some worn pieces. Some hammered pieces. Maybe because it wouldn't latch, maybe wouldn't fit the ball properly, so somebody had to tap it down or hit it with a hammer to get that to latch.
He also testified he would not want his family on the road with such a hitch.
Q. Would you want your family on the road with a hitch pulling a trailer like that one?
A. I would not.
Q. Why is that?
A. Because that would be a faulty hitch. There could be a problem with that.
Stubblefield also testified that there were "a variety of things with the different safety catches and mechanisms that could have went wrong" with the hitch and that the hitch should have been replaced before the incident that caused the victim's death.
The evidence also shows that appellant improperly loaded the dirt over the right rear axle of the trailer. Stubblefield explained that the proper way to load a trailer is to put the load up front because a load toward the rear of the trailer could cause the tongue of the trailer to come up.
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