What is criminal negligence? The CCA gives prosecutors a clear rule

Clinton Morgan

“As The Judges Saw It” Columnist and Assistant ­District ­Attorney in Harris County

The Penal Code’s definition of “criminal negligence” uses a lot of words that need definitions themselves. Someone is criminally negligent as to the result of his conduct if he ought to be aware of a substantial and unjustifiable risk that the result would occur.1 This risk must be of such a nature that the failure to perceive it constitutes a gross deviation from the standard of care than an ordinary person would have exercised. By my count, that’s five undefined words that are subject to highly subjective interpretations.
    Faced with negligence-based convictions, appellate courts want to interpret these subjective words as objectively as possible. The result of this impulse is that courts will typically try to show that the result of a given case is consistent with prior results, even if those prior results are, necessarily, somewhat subjective. Thus, more than any other area of the criminal law, appeals from negligence-based offenses involve looking closely at the facts of prior cases and figuring out how, exactly, the facts of a current case match up.
    The Court of Criminal Appeals’s latest foray into this field, Queeman v. State,2 continues the pattern, but more so than most negligence cases it makes a concerted effort to provide rule-based guidance for the future. Based on its facts, Queeman gives us the rule: An unexplained fatal wreck where the evidence fails to prove that the wreck was caused by something worse than routine traffic violations is not sufficient to support a conviction for criminally negligent homicide. By discussing the facts in this case in relation to prior cases, Queeman tells what would be sufficient: To prove criminal negligence, there must be evidence either that 1) the defendant’s deviation from the ordinary standard of care was well beyond the norm, or 2) the defendant was blameworthy in creating the risk or failing to perceive it.

The facts at trial
Robert Queeman’s van struck the right rear corner of Maria del Rosario Luna’s SUV.3 At the time of the wreck, Luna was either stopped or driving very slowly as she tried to make a left turn. The wreck caused Luna’s SUV to flip over an oncoming pickup truck and come to rest upside down. Luna’s passenger died as a result. Luna was cited for failure to signal (which she admitted to an investigating officer), and Queeman was cited for failure to control speed, but importantly, not for speeding. Queeman was later indicted for manslaughter and criminally negligent homicide. The specific acts of negligence alleged in the indictment were that Queeman “fail[ed] to maintain a safe operating speed and keep a proper distance.”
    As reported by the Court of Criminal Appeals’ opinion, the State’s evidence had some holes. Based on tire marks, the investigating officer testified that Luna’s SUV had a post-collision speed of 37 miles per hour. Based on the lack of tire marks from Queeman’s van, the officer testified that Queeman had braked very little or not at all. The officer said that Queeman was going “significantly more” than 37 miles per hour, and the officer agreed it was “safe to say” Queeman was exceeding the posted limit of 40 miles per hour. However, based on an admitted lack of training, the officer was unable to specify how fast Queeman was going.
    According to the Court of Criminal Appeals, there was no evidence regarding what Queeman was doing prior to the accident, or whether there was any particular reason he did not avoid a collision. Queeman seems not to have testified, but the defensive theory was that Luna stopped suddenly and Queeman swerved but did not have enough time to avoid a collision, which is why he hit the corner of her SUV instead of striking it squarely from behind. The jury acquitted on manslaughter but found Queeman guilty of criminally negligent homicide.

Reversal in the Fourth Court
On direct appeal, Queeman challenged the sufficiency of the evidence to support his conviction.4 In figuring out where this case placed on the negligence spectrum, the Fourth Court looked closely at the fact patterns of three other cases involving convictions for criminally negligent homicide: Montgomery v. State,5 Tello v. State,6 and a New York case discussed in Tello, People v. Boutin.7
    In Montgomery, the defendant had been talking on her cell phone while driving on an access road. When she hung up, she realized she had missed her on-ramp, so she abruptly changed lanes without signaling or altering her speed, despite the fact that she had already passed the on-ramp entrance. Because she was going slower than traffic in the lane, this caused a fatal three-car pileup. The Court of Criminal Appeals held that the evidence was sufficient to show criminal negligence because the defendant’s self-induced inattention had created the risk, and because making a sudden lane change without keeping a proper look-out posed a “great risk” to other drivers.  
    In Tello, the defendant was towing some dirt in a homemade trailer when it came unhitched and killed a pedestrian. The State put on significant evidence showing why the trailer came unhitched: 1) the hitch did not lock because it had been beaten with a hammer in an apparent effort to make it stay on; 2) the ball to which it was hitched was loose and wobbly; and 3) the defendant did not use chains to connect the trailer as required by law. Importantly, the Tello court reasoned that the hammer marks showed that the defendant was “on notice” of the condition of his trailer; thus, his failure to appreciate the risk of towing the trailer in that condition “involved some serious blameworthiness” and was sufficient to support a finding of criminal negligence.
    Boutin was an example of where the evidence was insufficient. In that case, a big truck became disabled on the shoulder of a highway and a state trooper stopped in the right lane, activated his emergency lights, and attempted to help the trucker. The defendant struck the trooper’s car, killing both the trooper and the trucker. The defendant said he did not see the flashing lights and did not see the police car until it was too late to avoid a collision. In reviewing the sufficiency of the evidence, the New York Court of Appeals reviewed its prior caselaw on the matter and concluded that criminally negligent homicide requires proof not only of a failure to perceive a risk of death, but also of “some serious blameworthiness in the conduct that caused it.” The Boutin Court characterized the case then before it as nothing more than an “unexplained failure” to avoid a collision, and held that, “without more,” it was insufficient to show criminal negligence.
    After reviewing these cases, the Fourth Court looked at the evidence regarding Queeman. It noted that, even though there was some evidence that he was driving faster than the posted limit, it did not show that he traveling at an “excessive” rate of speed. The Fourth Court believed the case was like Boutin because there was no evidence that Queeman was engaged in “any criminally culpable risk-creating conduct.”8 The Fourth Court further noted that, unlike Montgomery, there was no evidence Queeman engaged in any “blameworthy conduct like distracted driving due to cell phone use and an abrupt, aggressive lane change.” Characterizing the evidence as showing only that Queeman “inexplicably failed” to avoid a collision, the court found the evidence insufficient.

Discretionary review
The Court of Criminal Appeals granted the State’s PDR on two grounds. The first ground pointed out that the wreck was caused by the defendant’s failure to drive a safe speed and failure to maintain a safe distance, and then asked whether it was appropriate to characterize the failure to avoid as collision as “unexplained.” The second ground questioned whether the Fourth Court had really viewed the evidence in the light most favorable to the verdict, as required on sufficiency review.
    The Court of Criminal Appeals began by noting that the evidence showed three things that tended to support a finding of negligence: 1) Queeman failed to maintain a safe speed and distance; 2) he was speeding; and 3) he was inattentive. The court noted, though, that there was no evidence Queeman was “grossly negligent” either by “speeding excessively over the limit”9 or “in terms of the length or reason for his inattention.” The meat of the opinion analyzes whether those facts showed the sort of gross deviation from the standard of care required to a finding of criminal negligence. It did so by comparing the case to Montgomery, Tello, and Boutin.
    In comparing this case to Montgomery, the court noted that there was no evidence that Queeman was “engaged in any activity while driving that a reasonable person would know might distract him.” Also unlike Montgomery, there was no evidence that Queeman “made any particular driving maneuver … that a reasonable driver would recognize as being inherently unsafe.”
    In comparing this case to Tello, the court noted that there was no evidence here showing that Queeman was “on notice” of a particular risk. Though the evidence plainly showed that Queeman’s negligence (i.e., deviation from the standard of care) caused the wreck, additional evidence of blameworthiness would be needed to show the sort of “gross deviation” from the standard of care required to find criminal negligence. In Tello, that evidence was that the defendant was “on notice” of the faulty nature of his trailer, yet he continued to tow it. Here, there was no such evidence.
    Instead, the court noted that the case was similar to Boutin: “As in Boutin … the evidence here is sufficient to show carelessness, but it does not establish that [Queeman] engaged in any criminally culpable risk-creating conduct or that his conduct was such that it posed a substantial and unjustifiable risk of death, or that the failure to perceive that risk was a gross deviation from reasonable care under the circumstances.” Accordingly, the court held that the evidence was insufficient to support the conviction.

What more could have been proved?
The court ended its opinion by discussing how criminal negligence relates to driving. Usually, wrecks are caused by ordinary negligence. The driving errors the State proved Queeman committed—failing to control his speed and following Luna at an unsafe distance—are the sort of ordinary driving errors that “are often made by many drivers who also accept these same risks from other drivers because of the great social utility afforded by automotive transportation.”  
    What elevates ordinary negligence to criminal negligence is that the risk is “substantial and unjustifiable,” and the failure to perceive the risk is a “gross deviation” from the standard of care. The final part of the court’s opinion points strongly at the sort of evidence that would have proven criminal negligence in this case. First, the court noted that there was no evidence that Queeman “grossly deviated from the standard of care, for example, by excessively speeding.” Second, the court noted that while the State does not necessarily have to prove why a driver committed certain negligent acts to prove criminal negligence, there was nothing in the record showing that Queeman “engaged in acts that might be characterized as grossly negligent in the context of his failure to control speed and failure to maintain a safe distance, such as talking on a cell phone, texting, or intoxication.”
    Prosecutors looking at whether to bring charges or go to trial on a fatal wreck should keep these examples in mind. Queeman makes clear that the focus of such a charge is not just that the defendant was at fault, but also that the defendant’s negligence was out of the ordinary, either in the danger of his driving or in his blameworthiness for creating or ignoring the risk.

Endnotes

1  Tex. Penal Code §6.03(d).

2  ___ S.W.3d ___, No. PD-0215-16, 2017 WL 2562799 (Tex. Crim. App. June 14, 2017).

3  Id. at *1-2. All facts of the case are taken from the Court of Criminal Appeals’s opinion.

4  Queeman v. State, 486 S.W.3d 70, 71-72 (Tex. App.—San Antonio 2016), aff’d, 2017 WL 2562799 (Tex. Crim. App. 2017).

5  369 S.W.3d 188 (Tex. Crim. App. 2012).

6  180 S.W.3d 150 (Tex. Crim. App. 2005).

7  555 N.E.2d 253 (N.Y. 1990).

8  Queeman, 486 S.W.3d at 77 (quoting Boutin, 555 NE.2d at 255-56).

9  The court never specified what would constitute “excessive” speeding, but it cited two cases, one a manslaughter case and the other a criminally negligent homicide conviction, where speed had been a factor in holding the evidence was sufficient to support a criminal conviction. See Queeman, 2017 WL 2562799 at *5 (citing Thompson v. State, 676 S.W.2d 173, 176-77 (Tex. App.—Houston [14th Dist.] 1984, no pet.) (50 in a 30 mph zone was “excessive”) and Cooks v. State, 5 S.W.3d 292, 295-96 (Tex. App.—Houston [14th Dist. 1999, no pet.) (driving “close to 100 miles an hour in a 55-mile-an-hour zone” supported finding of recklessness)).