                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-09-108-CR


SARAH VICTORIA JARVIS                                                 APPELLANT

                                       V.

THE STATE OF TEXAS                                                         STATE

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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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     A jury convicted Appellant Sarah Victoria Jarvis of criminally negligent

homicide, and it assessed her punishment at two years’ confinement but

recommended community supervision.2               The trial court sentenced Jarvis

accordingly, suspended imposition of her sentence, and placed her on



     1
         … See Tex. R. App. P. 47.4.
     2
      … The jury acquitted Jarvis of manslaughter and aggravated assault with
a deadly weapon.
community supervision for five years.       In one point, Jarvis argues that the

evidence is legally insufficient to support her conviction for criminally negligent

homicide. We will affirm.

      In the early morning hours of May 28, 2006, at approximately 3:00 a.m.,

Jarvis was driving on Highway 183 when she slammed her vehicle into the

back of a vehicle being driven by Chris Britton. The collision caused Britton’s

vehicle to spin around and to tumble over a guardrail and concrete wall and

down an embankment to a dried-out creek bed. Megan Howard, a passenger

in Britton’s vehicle, was ejected from the vehicle and killed.3

      In challenging the legal sufficiency of the evidence to support her

conviction, Jarvis argues that “[t]his was an accident based on speeding

violations of all the parties and not a criminal act based on [her] criminal

negligence” because, other than excessive speed, no other facts were

presented at trial—such as alcohol or drugs—that constituted “contributing

factors” to the accident.    Thus, according to Jarvis, this is not a case of

criminal negligence because the only basis for her conviction is evidence of




      3
      … A paramedic who was dispatched to the scene of the incident testified
that Howard had injuries that were “incompatible with life” and was dead.
According to the medical examiner who performed her autopsy, Howard’s brain
was badly lacerated and fragmented.

                                        2
excessive speed, which is insufficient in and of itself to support a conviction for

criminally negligent homicide. 4

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in

order to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.             Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). This standard gives full play

to the responsibility of the trier of fact to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235

S.W.3d at 778. The trier of fact is the sole judge of the weight and credibility

of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979);

Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied,

129 S. Ct. 2075 (2009). Thus, when performing a legal sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute

our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740

(Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we




      4
          … Jarvis preserved this issue for appellate review.

                                         3
“determine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light

most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.

Crim. App. 2007).       We must presume that the factfinder resolved any

conflicting inferences in favor of the prosecution and defer to that resolution.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

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

criminal negligence. Tex. Penal Code Ann. § 19.05(a) (Vernon 2003). The

penal code defines 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
      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) (Vernon 2003). “In short, it is the ‘failure to perceive’ the risk of

a resulting death which must rise to the level of a ‘gross deviation’ from an

ordinary standard of care.” Graham v. State, 657 S.W.2d 99, 101 (Tex. Crim.

App. 1983).     Judge Cochran explained the difference between criminal

negligence and civil negligence:

             Civil or “simple” negligence “means failure to use ordinary
      care, that is, failing to do that which a person of ordinary prudence

                                        4
      would have done under the same or similar circumstances or doing
      that which a person of ordinary prudence would not have done
      under the same or similar circumstances. . . .”

             Criminal negligence, however, requires a significantly greater
      degree of deviation from this standard of care before a person may
      be held criminally liable. It must be a “gross” or extreme deviation
      from that standard. And it is measured solely by the degree of
      negligence, not any element of actual awareness. Conduct that
      constitutes criminal negligence involves a greater risk of harm to
      others, without any compensating social utility, than does simple
      negligence. A person may be found criminally negligent when he
      inadvertently creates a substantial and unjustifiable risk of which
      he ought to be (but is not) aware. And a jury must evaluate the
      defendant’s failure of perception and determine whether, under all
      the circumstances, it was serious enough to be condemned under
      the criminal law.

Tello v. State, 180 S.W.3d 150, 158–59 (Tex. Crim. App. 2005) (Cochran, J.,

concurring) (citations omitted).

      In this case, count two of the indictment alleged the offense of criminally

negligent homicide as follows:

      And it is further presented in and to said court that the defendant
      in the County of Tarrant and State aforesaid on or about the 28th
      day of May, 2006, did then and there by criminal negligence,
      to-wit: by failing to control her motor vehicle and/or by failing to
      keep a proper lookout for another motor vehicle, and/or by
      operating the motor vehicle above the posted speed limit, and/or by
      driving a motor vehicle while sleepy, and/or by failing to stay
      awake while operating a motor vehicle on a public roadway, and/or
      by failing to make a safe lane change while operating a motor
      vehicle on a public roadway laned for traffic, and/or by failing to
      maintain an assured clear distance between the motor vehicle she
      is operating and other motor vehicles on the same public roadway,
      cause the death of an individual, Megan Howard, by driving said

                                       5
      motor vehicle into and against a motor vehicle in which Megan
      Howard was a passenger[.]

      The evidence demonstrates that the portion of Highway 183 where the

accident occurred is a public roadway, laned for traffic, with three westbound

lanes and three eastbound lanes. The posted speed limit is sixty miles per hour.

      Britton described the traffic on Highway 183 as “fairly light” on the night

of the incident. He testified that he was driving in the center lane between

sixty and sixty-five miles per hour when Jarvis’s vehicle collided with the back

of his vehicle.

      Deandra King witnessed the accident and testified that Britton’s vehicle,

which was in front of the vehicle King was in, was traveling fifty-five or sixty

miles per hour. King testified that Jarvis’s vehicle passed him going “at least

100 miles per hour” just before it struck Britton’s vehicle. Defense counsel

questioned the preciseness of King’s estimation of Jarvis’s speed, but King

responded, “It is not about thinking or guessing; it is about what I know. She

was going a hundred miles an hour, that driver was.”       King also reasoned,

“Well, when you have a car going so fast you have the other car [the car King

was traveling in] . . . shake, they are going to go at least a hundred miles an

hour.” [Emphasis added.] After the accident, King exited the vehicle he was in




                                       6
and spoke with Jarvis, who asked what had happened and told King that she

thought she had fallen asleep.

      Two expert witnesses testified for the State. Ray Wangler testified that

he calculated the speed of Jarvis’s vehicle when it contacted Britton’s vehicle

at between 104 and 109 miles per hour. 5         Timothy Lovett testified that

according to his calculations, Jarvis’s vehicle was traveling between 99 and

101 miles per hour when it contacted Britton’s vehicle.

      Ray Wilson, a detective with the Fort Worth Police Department, was the

primary investigator assigned to the incident. Detective Wilson opined that

Jarvis failed to maintain an assured clear distance between her vehicle and the

other vehicles in the same roadway, that Jarvis operated her vehicle over the

posted speed limit, and that Jarvis failed to keep a proper lookout for other

motor vehicles on the roadway and not come into contact with them.

Detective Wangler opined that Jarvis was not able to make a safe lane change,

operated her vehicle above the posted speed limit, failed to maintain a proper




      5
       … In an affidavit accompanying a search warrant for Jarvis’s vehicle,
Detective Wangler calculated that the speed of Jarvis’s vehicle at the time of
the collision was ninety miles per hour, but he arrived at this figure by using a
“low end” book value (.8) for a particular variable (drag coefficient). After
Detective Wangler “skid tested” the section of the pavement where the
accident occurred, he came up with a drag coefficient of .92, which he used
to calculate the minimum speed of 104 miles per hour.

                                       7
lookout, and failed to maintain an assured clear distance between her car and

other cars on the roadway.

      Contrary to Jarvis’s argument, this is not a case of mere civil negligence

resulting from her only driving over the posted speed limit.        Rather, to use

Jarvis’s lingo, there are other “contributing factors.” Specifically, the jury could

have rationally found that Jarvis should have perceived, but failed to perceive,

a substantial and unjustifiable risk of death from her conduct of driving her

vehicle at over 100 miles per hour at 3:00 a.m. on a public roadway with a

posted speed limit of only 60 miles per hour while sleepy, while failing to stay

awake, while failing to keep a proper lookout for another motor vehicle, or while

failing to maintain an assured clear distance between her vehicle and other

vehicles on the roadway. See Tex. Penal Code Ann. § 6.03(d). The jury also

could have rationally found that Jarvis’s failure to perceive this substantial and

unjustifiable risk of death was a gross deviation from the standard of care that

an ordinary person would exercise under the circumstances. See id.; Graham,

657 S.W.2d at 101 (reasoning that driver’s failure to perceive risk of death

from acts of speeding, racing, and ignoring a red traffic control signal while

approaching an intersection was clearly a gross deviation from the ordinary

standard of care); see also Cooks v. State, 5 S.W.3d 292, 295–96 (Tex.

App.—Houston [14th Dist.] 1999, no pet.) (affirming manslaughter conviction

                                         8
of appellant who drove vehicle 100 miles per hour in a 55 miles-per-hour zone

and stating that “[i]t is universally acknowledged that speed kills”). Thus, the

State proved that Jarvis’s failure to perceive a substantial risk of death from her

conduct grossly deviated from an ordinary standard of care. See Graham, 657

S.W.2d at 101. Viewing all the evidence in the light most favorable to the

prosecution and giving full play to the responsibility of the jury to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts, we hold that the evidence is

legally sufficient to support Jarvis’s conviction for criminally negligent homicide.

See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at

778. Accordingly, we overrule Jarvis’s only point and affirm the trial court’s

judgment.




                                             BILL MEIER
                                             JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 11, 2010




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