Affirmed and Opinion Filed October 25, 2016




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-15-00869-CR

                          ROBERT LEE CHURCHILL, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the 296th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 296-80939-2014

                            MEMORANDUM OPINION
                Before Chief Justice Wright, Justice Fillmore, and Justice Brown
                               Opinion by Chief Justice Wright
        Robert Lee Churchill appeals his conviction for criminally negligent homicide. See TEX.

PENAL CODE ANN. § 19.05 (West 2011). In a single issue, appellant contends the evidence is

legally insufficient to support the conviction. We affirm the trial court’s judgment. Because all

dispositive issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a),

47.4.

                           I. FACTUAL AND PROCEDURAL CONTEXT

        E.C., a four-year-old child, died in a collision on U.S. Highway 75 on January 11, 2014.

E.C. was one of three passengers in a car driven by her mother (“Mother”) in the high-occupancy

vehicle (HOV) lane traveling northbound. Appellant was also driving northbound on Highway

75 in his blue Dodge pickup truck in the left lane next to the HOV lane. Appellant suddenly
pulled into the HOV lane over a barrier of pylons that separated the HOV lane from the highway.

Appellant’s truck collided with Mother’s approaching car. Mother’s car then hit the median wall

and a light pole and flipped over. The parties stipulated that the collision caused E.C.’s death.

       Appellant was indicted for the offense of criminally negligent homicide. The indictment

stated that appellant had caused a collision and the death of an individual by (1) failing to control

speed while operating a motor vehicle; (2) failing to keep a proper lookout while driving a motor

vehicle; (3) making an unsafe lane change; and (4) taking faulty evasive action while operating a

motor vehicle.

       Appellant pleaded not guilty and the case proceeded to trial before the court. Three

eyewitnesses testified for the State at trial, as well as Mother and two police officers who

investigated the accident. Three of the four passengers in appellant’s truck at the time of the

collision testified on appellant’s behalf.     Testimony from these witnesses established that

appellant was driving in heavy traffic, approaching an area where the traffic was slowing down

further. The slowdown was visible from a distance. Yolanda Payton, a passenger in a nearby

car, observed appellant “cutting in and out of the lane” as they approached the slowdown, and

then saw him “veer” into the HOV lane. Micah Hedges, who was driving southbound in the

HOV lane, testified that appellant made “a pretty aggressive move” into the HOV lane before

striking Mother’s car. The driver immediately behind appellant, Domingo Cruz, could see

Mother’s car approaching in the HOV lane. Cruz saw appellant enter the HOV lane. He yelled

“go, go, go” immediately before the collision, observing appellant’s “slow entry” into the HOV

lane and the speed of Mother’s approaching car. Mother recalled seeing appellant’s truck “just

come in” to the HOV lane “all of a sudden.” Cruz testified he “saw the impact happen,”

observing Mother’s car hit the median wall, launch into the air, hit a light pole, and flip over.

Cruz and others stopped, as did appellant. Emergency personnel and police arrived, including

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Officer James Forsythe of the Plano Police Department. Forsythe talked to appellant, who said

that when traffic slowed down suddenly, he “took evasive action into the HOV lane” so as not

“to slam into the back of the vehicles in front of him.” Forsythe determined that appellant’s

truck was the cause of the collision.

       Appellant’s passengers each testified that appellant was not driving erratically. Two of

the three passengers testified they thought appellant was trying to avoid hitting the car in front of

them by swerving into the next lane.

       Cruz and Mother both testified that they had often seen drivers pull into the HOV lane

over the pylons to avoid traffic. Cruz testified he saw it “every day,” and Mother testified she

had seen it “often” and had even done so herself, although not since the collision.

       The trial court found appellant guilty of criminally negligent homicide.           The court

sentenced appellant to two years’ confinement in the state jail, probated for three years.

Appellant now challenges the sufficiency of the evidence to support his conviction, alleging that

the State presented no evidence on the essential element of “criminal negligence.”

                               II. SUFFICIENCY OF THE EVIDENCE

       A.      Applicable Law and Standard of Review

       In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence

in the light most favorable to the verdict and determine whether a rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319 (1979); Robinson v. State, 466 S.W.3d 166, 172–73 (Tex. Crim. App. 2015)

(applying Jackson standard to review of evidence after bench trial). The trier of fact is the sole

judge of the witnesses’ credibility and the weight to be given their testimony. See Jackson, 443

U.S. at 326.




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       A person commits the offense of criminally negligent homicide if the person causes the

death of an individual by criminal negligence. TEX. PENAL CODE ANN. § 19.05(a). Section

6.03(d) of the Texas Penal Code defines the culpable mental state of 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.

TEX. PENAL CODE ANN. § 6.03(d) (West 2011).            To make a legally sufficient showing of

criminally negligent homicide, the State must prove: (1) the defendant’s conduct caused the

death of an individual; (2) the defendant ought to have been aware that there was a substantial

and unjustifiable risk of death from his conduct; (3) the defendant’s failure to perceive the risk

constituted a gross deviation from the standard of care an ordinary person would have exercised

under like circumstances. Montgomery v. State, 369 S.W.3d 188, 192–93 (Tex. Crim. App.

2012). The circumstances are viewed from the standpoint of the actor at the time that the

allegedly negligent act occurred. Id. at 193.

       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.

Id. The key to criminal negligence is not the actor’s being aware of a substantial risk and

disregarding it, but rather the failure of the actor to perceive the risk at all. Id. In Montgomery,

the court explained:

       Conduct that constitutes criminal negligence involves a greater risk of harm to
       others, without any compensating social utility, than does simple negligence. 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. 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. “With
       criminal negligence, the defendant ought to have been aware of a substantial and
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       unjustifiable risk that his conduct could result in the type of harm that did occur,
       and that this risk was of such a nature that the failure to perceive it was a gross
       deviation from the reasonable standard of care exercised by ordinary people.”
       Williams v. State, 235 S.W.3d 742, 750–51 (Tex. Crim. App. 2007). The degree
       of deviation from reasonable care “is measured solely by the degree of
       negligence, not any element of actual awareness.” In finding a defendant
       criminally negligent, a jury is determining that the defendant’s failure to perceive
       the associated risk is so great as to be worthy of a criminal punishment.

Id. at 193 (footnotes omitted).

       B.      Application of Law to Facts

       Appellant contends there was no evidence of the second element of criminal negligence

identified in Montgomery, that he ought to have been aware there was a substantial and

unjustifiable risk of death—not of an accident or an injury—by changing lanes into the HOV

lane. See id. He also contends there was no evidence to support the third element of criminal

negligence, that his failure to perceive a risk of death—not of accident or injury—constituted a

gross deviation from the standard of care an ordinary person would have exercised under like

circumstances. See id. He argues that the evidence established conclusively the opposite of

these two elements: his actions did not constitute a gross deviation from the standard of care that

an “ordinary person” would have exercised under like circumstances. See id. Appellant relies

on Mother’s testimony that “(1) people cut into the HOV lane a lot, (2) she has cut into the HOV

lane herself, and (3) everybody cuts into the HOV lane.” He argues that this testimony was not

contradicted by any other evidence. Therefore, there was no evidence of “a gross deviation from

reasonable care as judged by general societal standards.” Id.

       Appellant also argues there is no evidence that the four specific instances of negligence

listed in the indictment (failing to control his speed, failing to keep a proper lookout, making an

unsafe lane change, and taking a faulty evasive action) caused the accident “independently” of

the specific conduct alleged, his “suddenly entering the HOV lane to his immediate left, at which



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time the vehicle in which the decedent was traveling in the HOV lane struck the [appellant’s]

vehicle.”

       The State responds that appellant was charged with criminal negligence by failing to

control his speed so that he swerved suddenly into the next lane; by failing to maintain a proper

lookout to see the car in the lane he swerved into; by making an unsafe lane change by pulling

into an occupied lane; and by failing to take proper evasive action. The State argues the

evidence was sufficient to support appellant’s conviction for criminal negligence on each of

these actions. The State contends it is therefore irrelevant whether or not illegally crossing into

the HOV lane, by itself, constitutes negligence.

       The State argues Montgomery presented a similar issue. In that case, the defendant was

convicted of criminally negligent homicide as a result of an automobile collision. The defendant

admitted using a cell phone while driving.         The court of appeals reversed the conviction,

concluding the evidence was legally insufficient to establish that the defendant ought to have

been aware of a substantial and unjustifiable risk that death would result from her actions, or that

her failure to perceive this risk was a gross deviation from the standard of ordinary care. The

State introduced no evidence that cell phone usage while driving increased the risk of fatal

accidents or that any greater risk was generally known and disapproved of in the community.

Cell phone usage while driving was not illegal, and defendant’s cell phone usage was the only

factor distinguishing her conduct from simple moving violations. See Montgomery v. State, 346

S.W.3d 747, 752–55 (Tex. App.—Houston [14th Dist.] 2011), rev’d, 369 S.W.3d 188 (Tex.

Crim. App. 2012).

       The court of criminal appeals reversed, concluding the State had met its burden of

proving all of the elements of criminally negligent homicide. Montgomery, 369 S.W.3d at 193.

Neither the indictment nor the jury charge referred to the appellant’s cell phone use. Id. at 194.

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Instead, the indictment alleged that the appellant caused a person’s death by making an unsafe

lane change and failing to maintain a proper lookout. Id. The State proved that the appellant’s

unsafe lane change caused the person’s death. Id. The State also proved that the appellant

“ought to have been aware of the substantial and unjustifiable risk created by her actions.” Id.

        The court explained that the State “had no burden to show that driving while using a cell

phone is always risky or dangerous, or that it, of itself, creates a substantial and unjustifiable risk,

only that appellant’s use of a cell phone in this case created a substantial and unjustifiable risk

because it interfered with her ability to maintain a proper lookout for other vehicles.” Id. The

“gross deviation from the ordinary standard of care” was not appellant’s use of the cell phone,

“but rather that appellant made an unsafe lane change and failed to maintain a proper lookout, at

least partly because of the distraction caused by her use of the cell phone.” Id. at 195.

        Similarly here, the State was not required to prove that “cutting into” the HOV lane is

always dangerous “or that it, of itself, creates a substantial and unjustifiable risk.” See id. at

194–95. The indictment did not refer to appellant’s cutting into the HOV lane. The trial court,

as finder of fact, could have found appellant guilty of the conduct alleged in the indictment based

on the evidence offered at trial. The evidence showed that appellant failed to control his speed,

took faulty evasive action, and failed to keep a proper lookout, resulting in the unsafe lane

change that caused the collision. Moving too quickly for the slowing traffic, appellant attempted

to avoid a collision by swerving into the HOV lane when Mother’s car was approaching too

rapidly to allow appellant a safe entry.       The trial court could have reasonably found that

appellant’s failure to appreciate the substantial and unjustifiable risk, given the circumstances

known to him at that time, was a gross deviation from a standard of care that an ordinary person

would exercise under the same circumstances. See id. at 194. We overrule appellant’s issue.




                                                  –7–
                                       III. CONCLUSION

       We affirm the trial court’s judgment.




                                                     /Carolyn Wright/
                                                     CAROLYN WRIGHT
                                                     CHIEF JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
150869F.U05




                                               –8–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

ROBERT LEE CHURCHILL, Appellant                    On Appeal from the 296th Judicial District
                                                   Court, Collin County, Texas
No. 05-15-00869-CR        V.                       Trial Court Cause No. 296-80939-2014.
                                                   Opinion delivered by Chief Justice Wright;
THE STATE OF TEXAS, Appellee                       Justices Fillmore and Brown participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered October 25, 2016.




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