                                                                                   PD-0481-15
                                                                  COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
                                                                Transmitted 5/28/2015 12:00:24 AM
                                                                   Accepted 5/28/2015 3:59:07 PM
                                                                                   ABEL ACOSTA
                                 NO. PD-0481-15                                            CLERK



               COURT OF CRIMINAL APPEALS OF TEXAS


RUBEN GARCES,                                     Appellant

v.

THE STATE OF TEXAS,


                      On Appeal from the 118th District Court
                           of Glasscock County, Texas
                      Cause No. 432 (Hon. D. Timothy Yeats)

                                       and

                               NO. 11-13-00085-CR

                               from
     THE COURT OF APPEALS FOR THE ELEVENTH JUDICIAL DISTRICT
                        EASTLAND, TEXAS


             PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________

                                      FREDERICK T. DUNBAR
                                      rick@galbreathlawfirm.com
                                      State Bar #24025336
                                      4542 Loop 322, Suite 102
                                      Abilene, Texas 79602
       May 28, 2015                   Ph: (325) 437-7000
                                      Fax: (325) 437-7007
                                      ATTORNEY FOR APPELLANT
                           TABLE OF CONTENTS

                                                                           Page

Table of Contents ………………………………………………………………….2

Table of Authorities ………………………………………………………………..3

Statement Regarding Oral Argument………………………………………...….…5

Statement of the Case ………………………………………………………...……5

Statement of Procedural History …………………………………...………………5

Ground for Review ………………………………………………………...………6

                                   Issue One

  The Court of Appeals erred in holding the evidence against Appellant was
legally sufficient, thereby effectively blurring the distinction between civil and
                               criminal negligence.

Argument and Authorities……………………….……………….…….…………..6

Prayer for Relief…………………………..………………………………………19

Certificate of Compliance ……………………………………….……….……....20

Certificate of Service ………………………………………………….………....21

Appendix……………………………………………………………….…………22




                                                                                  2
                          TABLE OF AUTHORITIES

Cases                                                                  Page
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)………………6,7,10

Johnson v. State, 23 S.W.3d 1, 15 (Tex. Crim. App. 2000)………………...….….9


Montgomery v. State, 369 S.W.3d 188, 192-3 (Tex. Crim. App. 2012)……..7,17-8


People v. Boutin, 75 N.Y.2d 692, 556 N.Y.S.2d 1, 555 N.E.2d 253 (1990)…18-19


Tello v. State, 180 S.W.3d 150 (Tex. Crim. App. 2005)……………………7-17-19


Tello v. State, 138 S.W.3d 487, 493 (Tex.App.-Houston [14th Dist.] 2004), aff'd,

180 S.W.3d 150………………………………………………………………...…17


Williams v. State ,235 S.W.3d 742, 750, 753-754 (Tex.Crim.App.2007)……..…7-8

Statutes

Texas Penal Code Section 6.03…………………………………………………10

Texas Penal Code Section 19.05………………………………………..…….……9

Tex. Transportation Code Section 545.151………………………………..……….9




                                                                                   3
                                NO. PD-0481-15


               COURT OF CRIMINAL APPEALS OF TEXAS


RUBEN GARCES,                                     Appellant

v.

THE STATE OF TEXAS,


                     On Appeal from the 118th District Court
                          of Glasscock County, Texas
                     Cause No. 432 (Hon. D. Timothy Yeats)

                                       and

                              NO. 11-13-00085-CR

                               from
     THE COURT OF APPEALS FOR THE ELEVENTH JUDICIAL DISTRICT
                        EASTLAND, TEXAS


                PETITION FOR DISCRETIONARY REVIEW


        TO THE HONORABLE COURT OF CRIMINAL APPEALS:

       RUBEN GARCES, (hereinafter sometimes referred to as “Appellant,”)

submits this Petition for Discretionary Review, and would respectfully show unto

the Court the following:




                                                                                   4
              STATEMENT REGARDING ORAL ARGUMENT

      Oral argument is requested because this case involves vital issues of State

and Constitutional law, namely the right of an accused to have his guilt proven

beyond a reasonable doubt. Beyond that, the Court of Appeals’ decision, if allowed

to stand, would alter established law regarding what constitutes legally sufficient

evidence in a case of criminally negligent homicide, blurring the vital distinction

between civil negligence and criminal negligence as observed by this court in Tello

v. State, 180 S.W.3d 150 (Tex. Crim. App. 2005)and like cases. It is therefore

important that the court of Criminal Appeals correct this error.

                         STATEMENT OF THE CASE

      Appellant was charged by indictment in two counts with the criminally

negligent homicide of Bryan McBride and Jacob Lee Powers. (CR: 7). The offense

was alleged to have been committed on July 3, 2012. (CR: 7). On January 16,

2013, the jury found the Appellant guilty on both counts. (RR5: 153). Punishment,

assessed by the Court on February 8, 2013, was two hundred and ten (210) days

confinement in the Texas Department of Criminal Justice- State Jail Division and

no fine. (RR6: 9-10).

                 STATEMENT OF PROCEDURAL HISTORY

       Appellant appealed to the Eleventh Court of Appeals at Eastland, Texas. In

an opinion released on March 26, 2015, authored by the Honorable John Bailey,

                                                                                      5
the Court affirmed Appellant’s conviction. (Apx. 1).

                            GROUNDS FOR REVIEW

                                      Issue One

  The Court of Appeals erred in holding the evidence against Appellant was
legally sufficient, thereby effectively blurring the distinction between civil and
                               criminal negligence.


                       ARGUMENT AND AUTHORITIES

                                 Issue One Restated

  The Court of Appeals erred in holding the evidence against Appellant was
legally sufficient, thereby effectively blurring the distinction between civil and
                               criminal negligence.


                        Argument and authorities for Issue One

      When reviewing the sufficiency of the evidence, an appellate court views 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." Brooks v. State, 323 S.W.3d 893, 902 n. 19

(Tex.Crim.App.2010). 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. Id. at 899.


      The duty of the reviewing court is simply to ensure that the evidence

presented supports the jury's verdict and that the state has presented a legally
                                                                                       6
sufficient case of the offense charged. Williams v. State ,235 S.W.3d 742, 750,

753-754 (Tex.Crim.App.2007). 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.

Brooks, 323 S.W.3d at 900 n. 13.


       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 his 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. Montgomery v. State, 369 S.W.3d 188,

192-3 (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. 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. Id.




                                                                                              7
      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. Id. 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

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." Id.


      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.


      Whether a defendant's conduct involves "an extreme degree of risk" must be

determined by the conduct itself and not by the resultant harm. Nor can criminal

liability be predicated on every careless act merely because its carelessness results

in death or injury to another. Williams, 235 S.W.3d at 753.


                                                                                         8
       This is especially apparent when one contrasts the criminal negligence

statute with the failure to yield statute.

       Texas Penal Code Section 19.05 reads, in pertinent part:

       (a) A person commits an offense if he causes the death of an individual by

criminal negligence.

       (b) An offense under this section is a state jail felony.

       Contrast this with the failure to yield the right of way statute, Texas

Transportation Code Section 545.151, which reads, in pertinent part:

       (f) An operator who is required by this section to stop and yield the right-of-

way at an intersection to another vehicle and who is involved in a collision or

interferes with other traffic at the intersection to whom right-of-way is to be given

is presumed not to have yielded the right-of-way.

       Thus, the mere fact that a wreck occurred notably creates no presumption of

criminal homicide, as opposed to the right of way statute, which does indulge a

presumption in the event of a collision.


       In deciding the sufficiency of the evidence in this case it is important to

remember the Court of Criminal Appeals approved of the hypothetical from the

dissenting opinion of Presiding Judge McCormick from Johnson v. State, 23

S.W.3d 1, 15 (Tex. Crim. App. 2000), in which the following hypothetical was

outlined regarding a store robbery:
                                                                                        9
      The store clerk at trial identifies A as the robber. A properly authenticated
      surveillance videotape of the event clearly shows that B committed the
      robbery. But, the jury convicts A. It was within the jury's prerogative to
      believe the convenience store clerk and disregard the video. But based on all
      the evidence the jury's finding of guilt is not a rational finding.


      Brooks, 323 S.W.3d at 307.

      From the foregoing authorities we can derive two things regarding legal

sufficiency. First, the sufficiency standard does not allow the Court to weigh

evidence and substitute its judgment for that of the jury. However, legal

sufficiency, as made clear by the hypothetical from Brooks, is not a no-evidence

standard, as it effectively is in the civil context. Although this Court cannot decide

the relevant weight of evidence it must consider the exculpatory evidence and the

weaknesses of the inculpatory evidence in deciding whether a rational trier of fact

could conclude the State’s high burden has been met.


      Texas Penal Code Section 6.03 dictates, in pertinent part:


       (d) 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.


      The facts germane to legal sufficiency in this case are as follows:

                                                                                     10
      Trooper Kenneth Dean Reed, Jr. testified. (RR4: 148). He arrived at the

scene around 6:30, about an hour after getting the call. (RR4: 154). They do a field

diagram, paint markings on the pavement, take pictures, and take statements.

(RR4: 158).

      They spoke with the semi occupants and identified Appellant as the driver.

(RR4: 160-1). Deputy Aguilar helped him converse with Appellant. (RR4: 162).

Appellant admitted to be the driver. (RR4: 163). Reed determined that Appellant

had the proper licensing credentials. (RR4: 163). It was determined Appellant was

not intoxicated. (RR4: 165).

      Appellant told him he stopped, saw the truck, and pulled out. (RR4: 165-6).

The witnesses were not all consistent in what the semi had done. (RR4: 166).

Appellant told him he was in the process of purchasing this vehicle and was on a

test drive. (RR4: 167). He had stopped at the stop sign, saw the truck, and pulled

out. (RR4: 167). Appellant stated he was sorry. (RR4: 168). He had travelled 159

miles in the truck from Odessa. (RR4: 169). He inventoried the vehicle and did a

commercial vehicle inspection. (RR4: 170-1). There was a stipulation that the

deceased individuals were the victims alleged in the indictment, and that the crash

was the cause of their deaths, in exchange for photographs of the deceased not

being admitted. (RR4: 175). Exhibits 4-13, photos of the crash, were numbered and


                                                                                     11
admitted. (RR4: 176-7). Reed described the depictions in the photographs. (RR4:

178-185). He clarified he was just an accident investigator, not a reconstructionist.

(RR4: 175). The State admitted Exhibit 14, the scale diagram, without objection.

(RR4: 187). The Trooper discussed the v-mark made by the truck as the forces

impacted it. (RR4: 191-2).

      The truck was headed west and the pickup was headed north. (RR4: 192).

He described that because of the size of the marks on the pavement and because of

the displacement of the pickup twenty feet that the semi must have been going at

least five miles per hour when the impact occurred. (RR4: 192-5). He conceded,

however, he could not definitively say how fast the semi was going. (RR4: 195).

He indicated the disparity in weight between the vehicles made it impossible to

determine the momentum of either. (RR4: 196).

      Visibility was good for someone at the subject stop sign. (RR4: 199). There

was no weather that would have impacted visibility. (RR4: 199).

      The “black box” recording from the decedents’ vehicle was admitted into

evidence. (RR5: 5-6). James Gomez next testified. . (RR5: 93). He came upon the

accident scene. (RR5: 94).

      He expressed an opinion that the failure of the tractor to yield the right of

way caused the collision. (RR4: 199-200). He was unable to estimate the speed of

the pickup prior to impact. (RR4: 200). He did note that it took them about an hour

                                                                                      12
to come an hour’s distance from work, so they were within the speed limit on

average for the trip home. (RR4: 200-202).

      Trooper Reed testified that witness Ronald Davis said he did not stop at the

stop sign. (RR4: 207).

      Trooper Reed testified the speed limit on 1357 was 70 miles per hour. (RR5:

8).

      He indicated the difference in perceiving a vehicle coming between 70 miles

per hour and 80 is 22 feet per second. (RR5: 9). It makes little change in perception

in observing a vehicle coming. (RR4: 10).

      Trooper Reed testified 70 miles per hour versus 80 miles per hour would not

have made a difference in whether or not the collision occurred. (RR5: 13).

Alfonso Quinones next testified. (RR5: 14). He tagged along on Appellant’s test

drive in the subject semi. (RR5: 19-20). They only stopped at stop signs. (RR5:

22). He did not perceive any braking problems. (RR5: 22). He had been in the front

seat about 20 to 25 minutes prior to the collision. (RR5: 24). Ruben asked for

directions from him at the intersection. (RR5: 24). He wasn’t 100 percent sure

Appellant stopped, but he slowed dramatically. (RR5: 26). Appellant mentioned

something about not making it, and Quinones felt him accelerate to try and make

it. (RR5: 26-7). It appeared to Quinones initially that they might make it. (RR5: 26-

7). At impact, they were going “ten or 15 maybe.” (RR5: 27). He observed the

                                                                                  13
truck had wedged under the trailer just past the tractor. (RR5: 27). He was inclined

to believe Appellant did stop, but was not sure as he was not the driver. (RR5: 32).

He knew Appellant didn't roll right past it. (RR5: 32). He affirmed he was inclined

to believe they were going to make it. (RR5: 32-3). He estimated that when he first

saw the truck it was probably 100 yards away. (RR5: 33). The truck was coming

up fast. (RR5: 33). He expected when exiting the vehicle that the collision would

have been at the very back of the trailer. (RR5: 34).

      Appellant next testified. (RR5: 41). He was in the Unites States to test drive

vehicles. (RR5: 44).He has been a truck driver longer than 20 years. (RR5: 44). He

has an international license that allows him to drive 18 and 32 wheelers. (RR5: 44-

5). He had his regular truck driver’s license over 20 years and the international

license 8 years since the Free Trade Agreement came into place. (RR5: 45). The

subject truck was at Gato Trucking in Odessa. (RR5: 46). When testing trailers,

they need to be run 3 or 4 hours to see if they maintain their water and oil levels.

(RR5: 47). They left Odessa going south, picking up various roads. (RR5: 49). He

is not familiar with the area. (RR5: 49). The truck functioned well. (RR5: 50). The

water and oil levels needed to be checked when he got back. (RR5: 50). He arrived

at the subject stop sign. (RR5: 51). He looked to his right and to his left. (RR5: 51).

There were two water trucks and a pickup truck. (RR5: 51).

      There was adequate time for him to cross. (RR5:51). He testified one has to

                                                                                       14
be able to have a field vision of 90 degrees before one ever turns one’s head.

(RR5:51). When he glanced, he saw the white pickup coming fast, having passed

the water trucks. (RR5:51). He explained that when looking in that direction, it is

difficult to estimate the speed of the other vehicle. (RR5:52). Generally, one

estimates by the distance or the length or the amount of field that it is in between.

But when one is looking straight or when you are looking to the side, it is very

difficult to calculate the speed. (RR5:52). He deduced its high speed from how

quickly it covered the distance and the impact. (RR5:52). He was able to see the

decedents’ faces when they were 100 meters away. (RR5:52). The passenger

appeared to asleep. (RR5:53).

      The driver was not taking any evasive action and was inattentive. (RR5:53).

He had time to swerve. (RR5:53). This was Appellant’s first time at this

intersection. (RR5:53). Appellant. identified a photograph as depicting the scene

which was admitted as Defense Exhibit 1 (RR5:54-5). Another photograph of the

scene was admitted as Defense Exhibit 2. (RR5:56). There was a substantial open

space where the pickup could have taken evasive action. (RR5:58). He has no other

accidents or even a ticket. (RR5:60). He testified there was nothing he could do to

avoid the accident. (RR5:70). He indicated that he was going five miles per hour at

the time of the collision. (RR5:74). He denied having dragged the pickup.

(RR5:74-5).

                                                                                    15
      He indicated on cross-examination that he had been driving since he was 14

or 15. (RR5: 77-78). He conceded commercial drivers require more training than

regular drivers because they drive vehicles of great weight and force. (RR5:78).

      He conceded he was familiar with the concept of driving defensively.

(RR5:82). He conceded defensive driving means being on the lookout for what

other drivers may do. (RR5:82). He testified he stopped, looked both ways, and

saw the pickup from afar. (RR5:83). He conceded the truck had the right of way.

(RR5:85). He didn’t know how fast the truck was going, but it was fast. (RR5:85).

When he got a look at the occupants of the truck they were a little bit behind him .

(RR5:86).

      Here, both Appellant and a neutral eyewitness both testify it appeared they

would make it when Appellant pulled out. Trooper Reed was unable to give the

jury speeds, nor is there any evidence of what distance the victims’ vehicle was

from the intersection when Appellant committed to the intersection. Logically, to

properly analyze whether or not it was an unjustifiable risk to enter an intersection,

the jury must be favored with the speed of the vehicle on the dominant road, as

well as its distance at the time the accused committed to the intersection.

Admittedly, State’s Exhibit 16 establishes some evidence that the victims’ vehicle

was going 80 miles per hour 2.5 seconds prior to the subject collision, but does not

tell us what speed it was going at the time Appellant pulled out. Further, although

                                                                                      16
there were aerial depictions of the scene in question, and testimony that visibility

was good, there were remarkably no photographs that depict what Appellant’s

perspective would have been looking down 1357 from the intersection.

      In summary, the State has effectively asserted that Appellant’s committing

himself to the intersection when he did meets the objective criteria of recklessness

when they cannot describe the speed of the victim’s vehicle at the time he

committed nor its distance from the intersection at the time he committed. Contrast

this with uncontroverted testimony by Appellant and an eyewitness that it appeared

they would make it. Although an appellate court is not authorized to determine

weight or credibility, it must consider all the evidence in deciding what a rational

fact finder could find at the highest burden of proof. The State has simply not met

its burden. The Court of Appeals erred in holding otherwise.

      Appellant would note that a court of appeals has observed that in vehicular

criminally negligent homicide cases speeding, racing, and intoxication often are

contributing factors. Tello v. State, 138 S.W.3d 487, 493 (Tex.App.-Houston [14th

Dist.] 2004), aff'd, 180 S.W.3d 150. In Tello, the defendant’s conviction was

affirmed when a deplorably poorly attached trailer came off while Tello was

driving and caused a fatal accident.

      In Montgomery v. State, 369 S.W.3d 188, 194 (Tex. Crim. App. 2012),the

state presented evidence that: Montgomery was driving her SUV on the access

                                                                                       17
road of IH-45; the speed limit was 50 miles per hour; Montgomery was driving

more slowly than surrounding traffic; Montgomery was up to 92 feet past the

beginning of the entrance ramp onto IH-45 when she abruptly changed lanes;

Montgomery did not signal the lane change or look for other vehicles approaching

in the left lane; and Montgomery intended to enter IH-45 via the entrance ramp

that she had already passed. The state also presented evidence that, just before the

accident, Montgomery was driving and talking on her cell phone and that appellant

admitted using the cell phone had distracted her. Id.

      This Honorable Court has cited the New York Court of Appeals' decision in

People v. Boutin, 75 N.Y.2d 692, 556 N.Y.S.2d 1, 555 N.E.2d 253 (1990), to

illustrate when there is insufficient evidence to support a finding of criminal

negligence.

      This Honorable Court approving quoted the following from Boutin:

        Our decisions construing these provisions have emphasized that criminal
liability cannot be predicated on every act of carelessness resulting in death, that
the carelessness required for criminal negligence is appreciably more serious than
that for ordinary civil negligence, and that the carelessness must be such that its
seriousness would be apparent to anyone who shares the community's general
sense of right and wrong [citations omitted]. What, we believe, is abundantly clear
from our decisions and from the governing statutory language is that criminally
negligent homicide requires not only a failure to perceive a risk of death, but also
some serious blameworthiness in the conduct that caused it. The risk involved must
have been "substantial and unjustifiable", and the failure to perceive that risk must
have been a "gross deviation" from reasonable care.

      Tello, 180 S.W.3d at 157-8, quoting Boutin, 556 N.Y.S.2d 1, 555 N.E.2d at

                                                                                   18
254.

       This Court further observed:

       Applying this standard, the Court in Boutin decided that a driver's
       unexplained failure to see a parked car until he collided with it and
       killed two people did not by itself support a conviction for criminally
       negligent homicide. See Boutin, 556 N.Y.S.2d 1, 555 N.E.2d at 253, 256
       (evidence established only that "defendant inexplicably failed to see the
       vehicle until he was so close that he could not prevent the collision. Though
       it resulted in two tragic deaths, that unexplained failure, without more, does
       not constitute criminally negligent homicide").

       Tello, 180 S.W.3d at 158.

       In our instant case, unlike the precedent cited above, there simply is not

anything that distinguishes Appellant Garces’ conduct from civil negligence, and

the Court of Appeals erred in holding otherwise. The Court of Appeals effectively

has held that pulling a tractor-trailer into an intersection with a fast road when a

vehicle is coming amounts to sufficient evidence of criminal negligence, without

adequate evidence of speed or proximity. (Appendix 1). This effectively creates a

very real danger of acts of mere civil negligence with tragic results resulting in

culpability for homicide. This must be corrected.



                              PRAYER FOR RELIEF

       The evidence was legally insufficient to establish Appellant’s guilt. The

State did not give the jury nearly enough information to rationally conclude that

when Appellant entered the intersection, he ought to have been aware that there
                                                                                       19
was a substantial and unjustifiable risk of death from his conduct, or that

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. For the Court of Appeals to hold that this level of evidence is

legally sufficient would expose Texans to criminal exposure upon mere proof of

civil negligence. Such an error must be corrected.

                                         /s/Rick Dunbar_____________
                                        FREDERICK T. DUNBAR
                                        rick@galbreathlawfirm.com
                                        State Bar #24025336
                                        4542 Loop 322, Suite 102
                                        Abilene, Texas 79602
                                        Ph: (325) 437-7000
                                        Fax: (325) 437-7007

                       CERTIFICATE OF COMPLIANCE

        Appellant’s Petition for Discretionary Review, according to the word count

function of counsel for Appellant’s word-processing software, contains 4232

words, even including caption, identity of parties and counsel, statement regarding

oral argument, table of contents, index of authorities, statement of the case,

statement of issues presented, statement of jurisdiction, statement of procedural

history, signature, proof of service, certification, certificate of compliance, and the

appendix, save for the attached Exhibit 1 . As this is within the limits established

excluding these items, Appellant respectfully certifies compliance.


                                                                                       20
                                   /s/Rick Dunbar_______________
                                   Rick Dunbar

                        CERTIFICATE OF SERVICE

      I hereby certify that on this 27th day of May, 2015, a true and correct copy
of the above and foregoing was forwarded to the Glasscock County District
Attorney and the State Prosecuting Attorney in a manner consistent with the
requirements of the law.

                                            /s/Rick Dunbar_____________
                                            Rick Dunbar




                                                                               21
                              APPENDIX

Opinion of the Texas Court of Appeals, Eleventh District, At Eastland…………...1




                                                                           22
Opinion filed March 26, 2015




                                     In The


        Eleventh Court of Appeals
                                  __________

                               No. 11-13-00085-CR
                                   __________

                 RUBEN MONTES GARCES, Appellant
                              V.
                  THE STATE OF TEXAS, Appellee

                    On Appeal from the 118th District Court
                          Glasscock County, Texas
                         Trial Court Cause No. 432

                     MEMORANDUM OPINION
      Ruben Montes Garces appeals his jury convictions for two counts of
criminally negligent homicide.     Appellant caused a two-vehicle collision that
resulted in the death of both the driver and the passenger of the other vehicle. The
trial court assessed Appellant’s punishment on each count at confinement for a
term of 210 days in the State Jail Division of the Texas Department of Criminal
Justice, with the sentences to be served concurrently. In his sole issue on appeal,
Appellant challenges the sufficiency of the evidence to support his convictions.
We affirm.
                                 Background Facts
      Appellant, a truck driver from Chihuahua, Mexico, was visiting the United
States to test-drive vehicles for an employer to purchase.       On July 3, 2012,
Appellant was test-driving a tractor-trailer. Appellant picked up the tractor-trailer
in Odessa and headed south. At approximately 5:30 p.m., Appellant was headed
back toward Odessa on Farm Road 2401. Appellant came to the intersection of
Farm Road 2401 and Farm Road 1357 in Glasscock County. Farm Road 2401 runs
east to west, while Farm Road 1357 runs north to south. Farm Road 2401 has a
stop sign, while Farm Road 1357 does not. Accordingly, Farm Road 1357 has the
right-of-way for traffic. Appellant was traveling westbound on Farm Road 2401,
while the pickup driven by Bryan Gregory McBride was traveling northbound on
Farm Road 1357. Jacob Lee Power was the passenger in the pickup.
      Appellant testified that he saw two water trucks and a white pickup on the
road to his left when he approached the intersection.        Appellant testified as
follows:
      We got to the stop sign. I looked to my right and I looked to my left.
      The -- far away, there were two trucks, what you call here two water
      trucks. And next to them, there was a white pickup. There was
      enough distance for me to allow me to cross. It was a matter of
      seconds. It was really quick. . . .
            . . . So when I -- when I was crossing, I turned around and I
      saw and I glanced, and I turned around and I saw that it was the white
      pickup coming. And I was trying to think to myself if I have enough
      time to cross. And I couldn’t figure out why the pickup was so close
      because the two of the water trucks were still quite behind it.
      Appellant testified that, near the time of impact, he was able to see two
young men in the pickup from roughly 100 meters away. The pickup hit the bed of
the trailer near the front two axles, and the cab of the pickup was crushed. Both
McBride and Power were pronounced dead at the scene. The State and Appellant

                                         2
stipulated that the collision between Appellant’s tractor-trailer and the pickup was
the cause of death of McBride and Power.
      Alfonso Quiniones, a passenger in the tractor-trailer, testified that he was not
“100 percent sure if [Appellant] did make the stop. . . . [B]ut I do recall him
slowing down drastically.” Quiniones then said that the tractor-trailer took off and
then “that’s when [Appellant] notices that he’s not going to make it. He mentions
something. That’s when I noticed the truck, where he looked. I see the truck. I
see the truck coming.”      Quiniones testified that Appellant tried to cross the
intersection faster; Quiniones could feel the tractor-trailer accelerating. After the
pickup hit the tractor-trailer, Quiniones called 911.
      Trooper Kenneth Dean Reed Jr. with the Texas Highway Patrol testified that
he conducted an accident investigation when he arrived on the scene. Trooper
Reed testified that, in his opinion, “the cause of this accident was that semi truck
failed to yield the right-of-way.” Trooper Reed said that Appellant “failed to yield
right-of-way of the stop sign and pulled out in front of the vehicle and was struck.”
Trooper Reed testified that a witness at the scene gave him a statement that said:
      [I] saw a semi truck go through the intersection westbound on 2401,
      saw a cloud of dirt in the air, and the truck looked to have problems. I
      drove up into the intersection and saw a white pickup hit the semi
      truck in the rear of the truck. The truck -- semi truck ran the stop sign.

                                       Analysis
      We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–
89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review
all of the evidence in the light most favorable to the verdict and determine whether
any rational trier of fact could have found the elements of the offense beyond a


                                           3
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). We consider all the evidence admitted at trial, including
pieces of evidence that may have been improperly admitted. Winfrey v. State, 393
S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007). In conducting a sufficiency review, we defer to the
factfinder’s role as the sole judge of the witnesses’ credibility and the weight their
testimony is to be afforded. Brooks, 323 S.W.3d at 899. “This standard accounts
for the factfinder’s duty ‘to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.’”
Clayton, 235 S.W.3d at 778 (quoting Jackson, 443 U.S. at 319). When the record
supports conflicting inferences, we presume that the factfinder resolved the
conflicts in favor of the prosecution and defer to that determination. Jackson, 443
U.S. at 326; Clayton, 235 S.W.3d at 778.
      Appellant argues that the evidence is insufficient to support his conviction
because his conduct did not carry “a substantial and unjustifiable risk of death.”
He focuses his argument on the purported lack of evidence of the information
available to Appellant at the time he entered the intersection. Specifically, he
contends that there is no evidence of the speed of the victims’ pickup when
Appellant committed to crossing the intersection or its distance from the
intersection at that time.
      Section 19.05(a) of the Texas Penal Code provides that “[a] person commits
an offense if he causes the death of an individual by criminal negligence.” TEX.
PENAL CODE ANN. § 19.05(a) (West 2011). Section 6.03(d) of the Texas Penal
Code defines the culpable mental state of criminal negligence as follows:
             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
                                           4
      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.
Id. § 6.03(d).    To make a legally sufficient showing of criminally negligent
homicide, the State must prove that (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 or her conduct, and (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). We view the circumstances 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 the defendant’s subjective awareness of the risk of harm, but
rather the defendant’s awareness of the attendant circumstances leading to such a
risk. Id. The key to criminal negligence is not the defendant being aware of a
substantial risk and disregarding it, but rather it is the failure of the defendant to
perceive the risk at all. Id.
      “Conduct that constitutes criminal negligence involves a greater risk of harm
to others, without any compensating social utility, than does simple negligence.”
Id. Criminal negligence requires a significantly higher degree of carelessness than
civil negligence; any reasonable person sharing the community’s sense of right and
wrong would know the seriousness of the negligence. Id. The risk must be
“substantial and unjustifiable,” and the failure to perceive it must be a “gross
deviation” from reasonable care as judged by general societal standards. Id.
      With criminal negligence, the defendant ought to have been aware of
      a substantial and 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

                                          5
      the failure to perceive it was a gross deviation from the reasonable
      standard of care exercised by ordinary people.

Id. (quoting Williams v. State, 235 S.W.3d 742, 750–51 (Tex. Crim. App. 2007))
(internal quotation marks omitted). “The degree of deviation from reasonable care
‘is measured solely by the degree of negligence, not any element of actual
awareness.’” Id. (quoting Tello v. State, 180 S.W.3d 150, 158 (Tex. Crim. App.
2005) (Cochran, J., concurring)).      When a jury finds a defendant criminally
negligent, it determines that the defendant’s failure to perceive the associated risk
is so great as to be worthy of a criminal punishment. Id.
      After reviewing the record, we conclude that the State has met its burden of
proving all the elements of criminally negligent homicide. Appellant correctly
identifies the relevant time for our inquiry as the time that the allegedly negligent
act occurred. Id. The indictment alleged that Appellant caused the death of the
decedents “by operating a tractor-trailer and disregarding a stop sign, and failing to
yield the right of way.”     The application paragraphs of the jury charge also
contained this allegation. Accordingly, we direct our analysis to the facts in
existence at the time Appellant made the decision to proceed through the
intersection.
      Appellant testified that he “came to a full and complete stop” at the
intersection. However, another witness testified that he did not stop. Irrespective
of this discrepancy, the critical decision made by Appellant was his decision to
proceed through the intersection at the time that he did rather than waiting until all
oncoming traffic cleared the intersection. Appellant testified that he looked both
ways prior to entering the intersection and that he saw the victims’ pickup
approaching the intersection. Specifically, he testified that he saw their pickup
from “afar” at the intersection. Appellant obviously miscalculated the speed and


                                          6
distance of the victims’ pickup because he was unable to clear the intersection
prior to the victims’ pickup striking his tractor-trailer.
      The evidence is sufficient to show that Appellant should have been aware of
the substantial and unjustifiable risk created by his conduct. Appellant was driving
a large tractor-trailer. He entered the intersection after observing oncoming traffic
traveling at a high rate of speed, including observing the victims’ pickup from
“afar.” The posted speed limit for cross traffic at the intersection was seventy
miles per hour. Entering an intersection in a large tractor-trailer when there is
oncoming traffic traveling at a high rate of speed poses a great risk to the other
drivers on the road. Appellant should have been aware of the seriousness of
entering the intersection ahead of oncoming traffic that he observed. The jury
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 the standard of care that an ordinary person would exercise
under the same circumstances. See id. at 194. Accordingly, the evidence was
legally sufficient to support the jury’s guilty verdicts of criminally negligent
homicide. We overrule Appellant’s sole issue.
                                   This Court’s Ruling
      We affirm the judgments of the trial court.




                                                       JOHN M. BAILEY
                                                       JUSTICE
March 26, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

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