Harber v. State - 594 S.W.3d 438 (Tex. App. 2019)

Rule:

Criminal negligence is not simply the criminalization of ordinary civil negligence. The carelessness required for criminal negligence is significantly higher than that for civil negligence and the conduct involves a greater risk of harm to others, without any compensating social utility than does conduct that constitutes ordinary civil negligence. For conduct to constitute criminal negligence, it must be egregious and there must be some serious blameworthiness attached to the conduct. The risk created by the conduct must be substantial and unjustifiable, and a court determines whether the conduct involves such an extreme degree of risk by examining the conduct itself, not the resultant harm. The defendant's failure to perceive the risk must be a gross deviation from reasonable care as judged by general societal standards by ordinary people. In the context of a fatal traffic accident, proof of driving errors that may violate traffic laws or constitute ordinary civil negligence may be insufficient to meet the State's burden. To prove a "gross deviation" from the standard of ordinary care in driving, the evidence must support a reasonable inference that the defendant engaged in driving acts more extreme, aggressive, or foolish than are ordinarily engaged in by drivers and accepted as reasonable risks in exchange for the social utility provided.

Facts:

Harber was driving a mobile home hauler east on Interstate 10 on July 27, 2012, when he drove onto the right shoulder of the road and hit a tow truck driver. The tow truck driver, Travis Danner, died at the scene. In June 2016, Harber was indicted for manslaughter. The indictment, which was later on amended accordingly, alleged Harber recklessly caused the death of an individual by driving and operating a commercial vehicle without a valid driver's license or a valid commercial driver's license, failing to apply the brakes in a timely and reasonable manner, failing to maintain a single lane of traffic, and driving on an improved shoulder. The case was tried to a jury in August 2017, more than five years after the accident. The jury was charged on manslaughter and the lesser-included offense of criminally negligent homicide. The jury found Harber guilty of criminally negligent homicide and found he used or exhibited a deadly weapon during the commission of the offense. Harber pled true to the repeat offender enhancement allegations, and the jury assessed punishment at fifteen years in prison.

Issue:

Did the State sufficiently establish that the alleged conduct was criminally negligent and caused Danner’s death?

Answer:

No.

Conclusion:

Re: First alleged act of negligence

The State presented evidence that on the day of the accident, Harber's driver's license was suspended and Harber had been required to surrender any commercial driver's license for the period of suspension. The evidence thus establishes Harber committed a traffic violation. However, the State was required to prove more than just a traffic violation; to constitute criminal negligence, the conduct must involve an extreme, substantial, and unjustifiable degree of risk. In his taped interview with Turak, Harber stated he had been driving commercial trucks for ten years and had been issued a commercial driver's license. Although the jury was free to disbelieve Harber's statements, the State did not present any evidence to contradict Harber. Nor did the State present any evidence that the suspension of Harber's license was due to unsafe driving or that Harber lacked the knowledge, training, or experience necessary to safely drive the mobile home hauler. And, although the evidence was undisputed that the traffic on the highway that Friday afternoon was heavy, the State did not present any witness who testified Harber was driving erratically or appeared to have any difficulty driving the truck prior to the accident. The court determines whether conduct involves "an extreme degree of risk" by looking at the conduct itself, not the resultant harm. In the absence of any evidence from which it could be reasonably inferred that Harber lacked the skill, training, or experience to safely drive the mobile home hauler, there is nothing in the record to support a finding that Harber's operating the hauler with a suspended license or without a valid commercial driver's license created a substantial and unjustifiable risk. To so conclude "would require speculation beyond what is shown by the evidence or what could be rationally inferred from the evidence in the record."

Re: Second alleged act of negligence

The next alleged act of criminal negligence was that Harber caused Danner's death by failing to apply the brakes in a timely or reasonable manner. The State contends Harber, driving in the lane adjacent to the shoulder, was required to slow to twenty miles below the posted speed limit after he saw the tow truck on the shoulder. It argues Harber's failure to slow to 50 miles per hour after he saw the tow truck is sufficient evidence that Harber did not timely and reasonably apply his brakes. It further argues the jury could have found Harber was excessively speeding by driving at least 67 miles per hour, 17 miles per hour above what was allowed by law, and this sufficiently supports the finding of criminal negligence.

Viewing the evidence in the light most favorable to the verdict, the jury could have found the speed limit was 70 miles per hour and Harber was driving 67 at the time of the accident. In addition, Turak testified there were no skid marks on the road before the point of impact, indicating Harber had not locked up his brakes. The only evidence Harber had slowed the truck before the impact was his own testimony that he and the surrounding traffic slowed to 40 or 45 miles per hour and his expert's testimony that Harber was driving between 33 and 45 miles per hour. But, the jury could have disbelieved Harber and Palacios and could have reasonably inferred from the evidence presented that Harber slowed only to 67 miles per hour after seeing the tow truck driver. This evidence alone does not support an inference that Harber untimely or unreasonably applied his brakes, that his failure to slow to 50 miles per hour was a gross deviation from the ordinary person standard, or that Danner's death was caused by Harber driving 67 miles per hour instead of 50 at the point of impact. The record establishes the traffic at 5:00 p.m. on a Friday was heavy and flowing. There is no suggestion in the record that Harber at any time was driving faster than the surrounding traffic. There was no evidence of how fast Harber was going before he saw the tow truck. There was also no evidence of the distance between where Harber first saw the tow truck on the shoulder and the point of impact or of how much Harber safely could have reduced his speed over that distance in heavy traffic. And there is no evidence that "locking up" the brakes when Harber first saw the tow truck would have been reasonable or safe in the heavy traffic. On this record, it would be speculative to conclude Harber did not timely and reasonably apply his brakes.

Even if one could reasonably infer from the evidence that Harber could have further slowed his vehicle, there was no evidence of a "gross deviation" from the ordinary man standard in that there was no evidence he was driving any faster than anyone else in the heavy, flowing traffic at the time of the accident. The State did not attempt to link the speed at which Harber was driving to his ability to maneuver the truck or stay in his lane. Finally, there is no evidence that further reducing his speed, short of stopping the truck, would have prevented Danner's death. That is, there is no evidence the crash would have been any less deadly had it occurred at 50 miles per hour instead of at 67, and any finding that Danner's death was caused by Harber's failure to further reduce his speed would require speculation beyond what could be rationally inferred from the evidence in the record.

Re: Last alleged act of criminal negligence

The final acts of alleged criminal negligence were that Harber failed to maintain a single lane of traffic and drove on the improved shoulder. The State asserts in its brief Harber made an unsafe lane change because he made a "sudden," "abrupt" "swerve" from the left lane into the right lane in heavy traffic. Viewing the evidence in the proper light, the jury could have disbelieved Harber's statement that he was driving in the right lane, looked to the left in an attempt to move to the left, but was crowded out by the heavy traffic. The jury could instead have reasonably concluded from Candella's testimony Harber made a lane change from the left lane to the right lane. However, we do not agree the jury reasonably could have concluded the lane change was "sudden," "abrupt," or a "swerve." Candella did not use those or similar words; he merely described seeing what he assumed to be a lane change by a large vehicle several vehicles in front of him. Candella saw the large vehicle hit the tow truck after the lane change, but he did not know how or why the collision occurred. There was nothing in Candella's testimony from which the jury could infer the lane change itself was unsafe and there was no evidence from any other source that Harber had been driving aggressively or erratically during or before the lane change. Assuming the indictment authorized a finding of criminal negligence based on an unsafe lane change, the State failed to produce more than a modicum of evidence Harber made an unsafe lane change.

It is true that the evidence supports a finding that Harber, while driving in the right lane, failed to maintain a single lane of traffic and drove on the improved shoulder, which caused him to hit Danner, resulting in Danner's death. The only explanations for why Harber drove onto the shoulder were his own statements that he "looked down for a second" and his expert's hypothesis that when Harber was in the right lane, looking left and trying to move lanes, he unconsciously overcompensated by moving the steering wheel to the right. While the jury could have disbelieved Harber and Palacios, the State did not offer any other explanation. And there is no evidence the size of the truck, the speed at which Harber was driving, the lane change, or a suspended driver's license caused or contributed to Harber driving onto the shoulder. The only evidence in the record is that Harber veered onto the shoulder because he was momentarily inattentive, and there is no evidence of the reason for the inattention other than Palacios's theory. There is no evidence Harber was engaged in any distracting activity and no evidence the accident was caused by any inherently unsafe driving maneuver. As in Queeman, "although the record supports a rational conclusion that appellant was inattentive long enough for him to [veer onto the shoulder and] collide with [Danner], nothing in the record demonstrates whether this was ordinary or gross inattentiveness that contributed to the collision."