Jeri Dawn Montgomery v. State ( 2011 )

Reversed and Rendered; Majority and Dissenting Opinions filed June 2, 2011.

In The

Fourteenth Court of Appeals

NO. 14-09-00887-CR

Jeri Dawn Montgomery, Appellant

v.

The State of Texas, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1182462

DISSENTING OPINION

            The majority contends the evidence presented at trial is insufficient to sustain appellant’s conviction for criminally negligent homicide because the State offered no evidence to show: (1) an increased risk of traffic deaths due to cell phone usage; and (2) that such risk, if any, is generally known and disapproved of in the community.  While the majority may well wish for such evidence, neither of the above factors is an element of the offense.  Thus, the State had no obligation to offer such proof.  Accordingly, I dissent.

            The elements of criminally negligent homicide are simply: (1) a person; (2) causes the death; (3) of an individual; (4) by criminal negligence.  Juneau v. State, 49 S.W.3d 387, 391 (Tex. App.—Fort Worth 2000, pet. ref’d); see also Tex. Penal Code Ann. § 19.05 (West 2003); Tello v. State, 138 S.W.3d 487, 492 (Tex. App.—Houston [14th Dist.] 2004), aff’d, 180 S.W.3d 150 (Tex. Crim. App. 2005).  Here, the first three elements are not in dispute.  Appellant contends only that when she caused the death of the victim, she did so without the requisite culpable mental state of “criminal negligence.”

            Criminal negligence has two components: (1) engaging in conduct that creates a substantial and unjustifiable risk to another; and (2) the actor’s failure to perceive the risk is a gross deviation from the ordinary standard of care.  See Tex. Penal Code Ann. § 6.03(d) (West 2003); Tello, 180 S.W.3d at 156.

A. Increased risk of traffic deaths due to cell phone usage

“A person acts with criminal negligence . . . with respect to circumstances surrounding his conduct . . . when he ought to be aware of a substantial and unjustifiable risk.”  Tex. Penal Code Ann. § 6.03(d).  Thus, the majority contends the State was obliged to show that cell phone use while driving poses a risk to others.  However, the State never alleged that cell phone use constitutes a risk to others; rather, the State alleged in its indictment that appellant’s risky conduct was: (1) failing to maintain a proper lookout; and (2) making an unsafe lane change.  It would seem to be common knowledge that driving while failing to keep a proper lookout constitutes an extreme risk to others.  Hypothetically, circumstances showing a driver failed to maintain a proper lookout might include evidence that he or she was: (1) legally blind; (2) driving without corrective lenses; (3) reading a book, map, or directions; (4) asleep or fatigued; (5) browsing the Internet; (6) applying cosmetic makeup; (7) day-dreaming; (8) rubbernecking; (9) looking at scenery or landmarks; or (10) eating, drinking, or searching the vehicle for a snack.  Here, the State attempted to show appellant failed to maintain a proper lookout because she was distracted by her use of a cell phone.

Thus, contrary to the majority’s assertion, the State had no burden to show that driving while using a cell phone is always distracting, commonly dangerous, generally risky, or causes increased traffic deaths.  The State had only to show that in this case, under these circumstances, appellant’s use of a cell phone was distracting, dangerous, and risky because it prevented her from maintaining a proper lookout.  Here, the record shows appellant was talking on her cell phone at the time of the accident.[1] Further, she admitted she was distracted by her use of the cell phone.  Due to this distraction, appellant moved suddenly out of the center lane of the access road, at night, in poor visibility, without signaling, without looking for other vehicles traveling in the inside lane, and attempted to turn onto a freeway ramp contrary to traffic control stripes on the pavement.

Accordingly, I would find the State offered significant evidence that appellant was distracted by her use of a cell phone, that the distraction interfered with her ability to maintain a proper lookout and make a safe lane change, and that she ought to have been aware that her unsafe lane change and failure to keep a proper lookout created a substantial and unjustifiable risk.

B.     The risk of talking on a cell phone while driving is generally known and disapproved of in the community

For conduct to rise to the level of criminal negligence, “[t]he 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).  Thus, the essence of criminal negligence is the failure of the actor to perceive the risk created by his or her conduct.  Mendieta v. State, 706 S.W.2d 651, 652 (Tex. Crim. App. 1986).

The use of cell phones by drivers is pervasive.  According to the National Highway Traffic Safety Administration, “At any given moment during the daylight hours, over 800,000 vehicles are being driven by someone using a hand-held cell phone.”[2]  The majority considers the interesting issue of whether any conduct can be a “gross deviation” from the ordinary standard of care when it is engaged in by such a significant segment of the population.  In their analysis, the majority relies on the rationale of the Tennessee Supreme Court in State v. Jones, 151 S.W.3d 494 (Tenn. 2004).

            Because 40% of children transported in vehicles in Tennessee are not placed in proper child restraints, the Tennessee court concluded that a person’s failure to properly restrain a child in a motor vehicle simply cannot constitute a “gross deviation from the standard of care.”  Id. at 501.  Thus, if enough people are grossly negligent on a routine basis, their conduct, by definition, cannot be grossly negligent.  I disagree.

First, the negligent conduct in this case constituting a “gross deviation” from the ordinary standard of care was not talking on a cell phone—it was failing to maintain a proper lookout and making an unsafe lane change.  Thus, while appellant’s use of a cell phone, under the circumstances presented here, may have led to her failure to maintain a proper lookout and making an unsafe lane change, the State was under no obligation to prove that talking on a cell phone generally constitutes a “gross deviation” from the ordinary standard of care or is generally disapproved of in the community.

Second, whether an actor’s conduct constitutes a gross deviation from the standard of care that would be exercised by an ordinary person in the same circumstances constitutes a question of fact to be resolved by the fact finder.  Phillips v. State, 588 S.W.2d 378, 381 (Tex. Crim. App. 1979).  Here, the jury was never asked to conclude whether the use of a cell phone while driving is unsafe under all circumstances and conditions.  An alert driver, traveling in light traffic, on a rural road, in good weather, and in daylight conditions, may well be able to conduct a conversation without distraction and maintain a proper lookout while observing all traffic signs and statutes.  Here, however, the jury concluded that appellant’s failure to perceive the risk created by not maintaining a proper lookout and making of an unsafe lane change constituted a gross deviation from the ordinary standard of care.  Appellant’s use of a cell phone, under the facts and circumstances presented in this case, undoubtedly contributed to her failure to keep a lookout and unsafe lane change.

Finally, “the actor’s conduct is weighed against an objective standard, that of the ordinary prudent man.”  Tompkins v. State, 774 S.W.2d 195, 225 (Tex. Crim. App. 1987).  What an ordinary prudent person would do is not the same standard as what people do generally.  For example, when asked, most cigarette smokers will readily concede that smoking is dangerous and imprudent.  However, by definition, 100% of all cigarette smokers smoke.  Likewise, although a significant number of drivers use cell phones while driving,[3] one recent study revealed that more than 80% of drivers believed using a cell phone while driving was dangerous,[4] and another study revealed that more than 80% of drivers believed it was a serious problem.[5] Even in 2003, the National Highway Traffic Safety Administration reported that seven in ten drivers believed making a phone call made driving more dangerous.[6]  It is simply a sad fact of the human condition that each of us seems to believe “I can beat the odds.”  Thus, what is a gross deviation of care for you is not a gross deviation of care for me.

Accordingly, even if it could be shown that 100% of Texas drivers routinely drive while distracted due to cell phone use, such fact would not prevent twelve jurors from reasonably and rationally concluding that no ordinary prudent person would drive while distracted due to cell phone use.

C. Conclusion

The majority imposes burdens upon the State not supported by law.  Because the State presented abundant evidence that appellant’s failure to perceive the substantial and unjustifiable risk created by her distracted driving—which led to her failure to maintain a proper lookout and making an unsafe lane change—constituted a gross deviation from the ordinary standard of care, I would affirm the conviction.

                                                                        /s/        J. Harvey Hudson

                                                                                    Senior Justice

Panel consists of Chief Justice Hedges, Justice Jamison, and Senior Justice Hudson.[7] (Jamison, J. majority)

Publish — Tex. R. App. P. 47.2(b).

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[1] The majority asserts appellant ended her cell phone conversation before the accident occurred.  However, Ronald Soots, an accident investigator with the Harris County Sheriff’s Office, testified, “The cell phone showed—the records show that she was on the phone at or around the time of the crash.”  Reviewing the evidence in the light most favorable to the verdict, as we must, the jury was entitled to conclude that appellant was on the phone at the time of the accident.  See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

[2] Policy Statement and Compiled FAQs on Distracted Driving, U.S. Dep’t of Transp., Nat’l Highway Traffic Safety Admin., http://www.nhtsa.gov/Driving+Safety/Distracted+Driving/Policy+
Statement+and+Compiled+FAQs+on+Distracted+Driving (last visited May 4, 2011); see also U.S. Dep’t of Transp., Nat’l Highway Traffic Safety Admin., DOT HS 811 184, Driver Electronic Device Use in 2008, at 1 (Sept. 2009), available at http://www-nrd.nhtsa.dot.gov/pubs/811184.pdf (estimating that drivers in 11% of all vehicles use some type of cell phone at any given time during daylight hours).

[3] See AAA Found. for Traffic Safety, Cell Phones and Driving: Research Update 8 (Dec. 2008), available at http://www.aaafoundation.org/pdf/CellPhonesandDrivingReport.pdf (reporting the results of two surveys in which 53% and 61% of respondents admitted to talking on a cell phone while driving in the preceding thirty days); Dawn Royal, The Gallup Org., National Survey of Distracted and Drowsy Driving Attitudes and Behaviors: 2002, at 20, 32 (Mar. 2003), available at http://www.nhtsa.gov/people/injury/drowsy_driving1/distracted03/DISTRACTEDFINALFINDINGS%
20REPORT.pdf (reporting that “about one in three of all drivers [use] a cell phone for outgoing or incoming calls while driving,” and “about one in four drivers drive while talking on a wireless phone”); see also Humphrey Taylor, Harris Interactive, Large Majority of Drivers Who Own Cell Phones Use Them While Driving Even Though They Know This Is Dangerous 2 (The Harris Poll No. 58, June 8, 2009), available at http://www.harrisinteractive.com/vault/Harris-Interactive-Poll-Research-Safe-Driving-2009-06.pdf (noting that 73% of drivers who owned a cell phone admitted in 2006 to talking on a cell phone while driving).

[4] Taylor, supra, at 4.

[5] AAA Found. for Traffic Safety, supra, at 11.  This study also noted that driving while talking on a cell phone “rated above aggressive drivers, excessive speeding, and drivers running red lights in terms of public perceptions of their seriousness.”  Id.

[6] Royal, supra, at 32.

[7] Senior Justice J. Harvey Hudson sitting by assignment.