Mark Douglas Montana v. State

Opinion issued December 8, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00101-CR

____________

MARK DOUGLAS MONTANA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd Judicial District Court

Brazoria County, Texas

Trial Court Cause No. 45,278

MEMORANDUM OPINION

A jury found appellant, Mark Douglas Montana, guilty of the offense of

criminally negligent homicide,

and assessed his punishment at confinement for six

years. In three points of error, appellant contends that the evidence was legally and

factually insufficient to support his conviction and that the trial court erred in

admitting, during the punishment phase of the trial, hearsay testimony over his

objection. We affirm.

Factual and Procedural Background

Kevin Knapp, a truck driver, testified that, on April 9, 2005 at approximately

10:45 a.m., while driving his truck, he approached the intersection of FM 2004 and

Highway 288. As he traveled north on Highway 288 toward the intersection, a gray

Durango, driven by appellant, passed him traveling between 60 and 65 miles per

hour. The traffic signal light for northbound traffic on Highway 288 was red. The

Durango proceeded through the intersection and, without its brake lights ever coming

on, collided with a car driven by Olga Rodarte, the complainant. Knapp explained

that the traffic light, which can be seen from about one-half mile from the

intersection, had been red for at least five to seven seconds prior to the collision and

that he saw vehicles begin to enter the intersection going westbound on FM 2004.

Knapp stated that the speed limit on Highway 288 is 50 miles per hour, but the limit

drops to 45 miles per hour 1,000 feet before the intersection at FM 2004. He noted

that it was a clear day, the roads were dry, and there are warning signs informing

drivers that they are approaching this intersection. He explained that there were no

obstructions blocking the road or the ability of drivers to see down the road, and,

although there was a ten mile-per-hour wind, the traffic signal could be clearly seen

even though the wind moved the lights. The Durango was the only northbound

vehicle that Knapp saw enter the intersection.

Noel Velasquez, also a truck driver, testified that at that same time, he was

traveling westbound on FM 2004 at Highway 288. He stopped his truck, right beside

the complainant’s westbound Pontiac Sunfire, at the red light in the left turn lane of

FM 2004. Velasquez explained that his “tall truck” was positioned in such a way that

it blocked the complainant’s view of oncoming northbound traffic on Highway 288.

Velasquez waited approximately 30 seconds at the traffic signal of the intersection.

When the traffic signal light turned green, Velasquez drove out into the intersection

but stopped when he saw appellant’s Durango approaching so fast that he didn’t have

“time to put the brakes on it.” The complainant, unaware of appellant’s oncoming

Durango, “[took] off. . . normally,” and the Durango collided with the complainant’s

car in the middle of the intersection. Appellant’s Durango “never slowed down.”

Velasquez estimated appellant’s speed at the time of the collision to be between 60

and 70 miles per hour. Velasquez explained that no one else entered the intersection.

After the collision, appellant told Velasquez that he was in a hurry to go to the

courthouse and asked Velasquez if he had run a red light.

Alice Hodge testified that she was traveling south on Highway 288 at the time,

in the opposite direction of appellant. As she approached the intersection, her

southbound traffic light was red. After she had been stopped at the red light for two

to three seconds, the collision occurred. Hodge testified that after the collision,

appellant asked her if the light was red.

Paul Borel testified that at the time of the collision, he was stopped at the red

light at FM 2004, directly behind the complainant’s white car. When the light turned

green, the complainant’s car moved forward and was hit and lifted airborne by

appellant’s Durango. Borel heard no skidding tires before the collision. Immediately

after the collision, Borel attended to the complainant and determined that she was

dead. Appellant asked Borel if appellant had run a red light. Borel explained that

appellant did not state that he could not see the lights because of wind nor did he say

he was trying to set his cruise control. Borel heard appellant ask another witness on

the scene to tell the police officers that the wind was blowing the lights.

Ashley Hempel, an officer with the Richwood Police Department, testified that

she was dispatched to the intersection of FM 2004 and Highway 288 shortly after the

collision. She explained that, on the northbound side of Highway 288, 744 feet from

the FM 2004 intersection, there is a yellow diamond sign with a traffic signal symbol

that warns drivers of the coming controlled intersection.

Bobby Evans, a traffic systems supervisor for the Texas Department of

Transportation, testified that his agency maintains the traffic signals at FM 2004 and

Highway 288. He noted that no malfunctions were reported to his agency and that

the signal was working properly on the day after the collision. Evans explained that

there is a 1.5 second “clearance time” when the lights to conflicting lanes of travel are

both red before one of the signals turns green. The amber, or yellow, light lasts for

5 seconds.

Cathryn Caraway, appellant’s administrative secretary, testified that on April

9, 2003, appellant was late to an appointment with a judge regarding his daughter

because he had gone to the wrong location. Appellant called Caraway to ask her to

inform the judge that he had been in an accident. After calling the judge, Caraway

met appellant at the scene. At the scene, appellant advised her that he was setting his

cruise control at the time of the collision and was driving between 50 and 55 miles

per hour. Appellant also told her that the wind was blowing the lights horizontally

and that someone else had gone through the intersection with him. She explained that

appellant was familiar with this intersection because he owned property in the area.

Legal and Factual Sufficiency

In his first and second points of error, appellant argues that the evidence was

legally and factually insufficient to support his conviction of criminally negligent

homicide because the State failed to prove, beyond a reasonable doubt, that

“appellant’s failure to perceive the risk constituted a gross deviation from the

ordinary standard of care.” We review the legal sufficiency of the evidence by viewing the evidence in the

light most favorable to the verdict to determine if any rational fact finder could have

found the essential elements of the offense beyond a reasonable doubt. King v. State ,

29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Although our analysis considers all

evidence presented at trial, we may not re-weigh the evidence and substitute our

judgment for that of the fact finder. Id.

In our review of the factual sufficiency of evidence, we view all of the evidence

neutrally, not in the light most favorable to the verdict, and we will set aside the

verdict “only if the evidence is so weak that the verdict is clearly wrong and

manifestly unjust, or the contrary evidence is so strong that the standard of proof

beyond a reasonable doubt could not have been met.” Escamilla v. State , 143 S.W.3d

814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State , 144 S.W.3d 477, 483 (Tex.

Crim. App. 2004)). Although our analysis considers all the evidence presented at

trial, the trier of fact is the exclusive judge of the facts, the credibility of the

witnesses, and the weight to be given their testimony. Johnson v. State , 23 S.W.3d

1, 7 (Tex. Crim. App. 2000). For purposes of our factual sufficiency review, we note

that appellant offered no evidence during the guilt phase of the trial.

A person commits the offense of criminally negligent homicide if he causes the

death of an individual by criminal negligence. Tex. Pen. Code Ann . § 19.05(a).

(Vernon 2003). The culpable mental state required for a conviction of criminally

negligent homicide is defined 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.

Tex. Pen. Code Ann . § 6.03(d) (Vernon 2003). Criminal negligence involves

inattentive risk creation, that is, the actor ought to be aware of the risk surrounding

his conduct or the results thereof. Lugo v. State , 667 S.W.2d 144 , 147–48 (Tex. Crim.

App. 1984); Lewis v. State , 529 S.W.2d 550, 553 (Tex. Crim. App. 1975). The

essence of criminal negligence is the failure of the actor to perceive the risk created

by his conduct. Ybarra v. State , 890 S.W.2d 98, 110 (Tex. App.—San Antonio 1994,

pet. ref’d). Proof of a culpable mental state generally relies upon circumstantial

evidence. Dillon v. State , 574 S.W.2d 92, 94 (Tex. Crim. App. 1978). The issue of

whether criminal negligence is shown, that is, whether one should be aware of a

requisite risk, is a conclusion to be drawn through inference from all the

circumstances by the trier of fact. Id .

It is uncontroverted that the appellant caused the death of the complainant.

However, appellant asserts that “the evidence [in this case] establishes a traffic

accident, nothing more.” Appellant argues that his two lapses of inattention, (1) in

not seeing the light change or, if he looked, in being unable to see it change due to the

wind, and (2) in exceeding the speed limit, do not establish a gross deviation from the

ordinary standard of care because “every driver on our highways is distracted at one

time or another.” Appellant asserts that “[his] speed as estimated by the witnesses

was not grossly in excess of the speed limit for this highway and that his lapse of

attention to the red light was not sufficient to rise above the normal lapses incurred

by ‘ordinary’ drivers.” Appellant further asserts that “[he] did not see complainant’s

vehicle” and “although his inattention undoubtedly constitutes negligence, the

evidence is insufficient to establish criminal negligence in that it fails to establish a

‘gross deviation’ from the ordinary standard of care.”

Initially, we note that “accident” is not a defense to negligent homicide. Sykes

v. State , 399 S.W.2d 349, 352 (Tex. Crim. App. 1966). While it may be true that “if

no death had occurred, appellant may have been ticketed and nothing more,” it is the

death of an individual which compels an analysis of appellant’s actions to determine

if his conduct constituted a gross deviation from the ordinary standard of care that an

ordinary person, in appellant’s place, would exercise.

The evidence at trial showed that appellant, traveling northbound, caused his

Durango to collide with the complainant’s car in the intersection of FM 2004 and

Highway 288. The traffic signal at the intersection had been red for northbound

traffic between two to seven seconds when appellant entered the intersection. There

would have also been five seconds of a yellow or amber signal prior to the traffic

light turning red. Although the speed limit at the intersection is 45 miles per hour,

appellant’s speed was estimated to be between 60 and 70 miles per hour. Knapp

testified that appellant was approaching the intersection at such a “high rate of speed”

that “even if [appellant had] put on the brakes [he did not] think [appellant] would

have got stopped.” The evidence also showed that the traffic light at the intersection

was visible from about one-half mile away and that there was a sign warning drivers

of the traffic signal at the intersection.

The State also presented evidence that appellant’s Durango was the only

vehicle that entered the intersection. Appellant told Vasquez that he was in a hurry

to go to the courthouse and asked several of the witnesses whether he had run a red

light. No brake lights or skidding was observed by any of the witnesses prior to the

collision. Appellant was familiar with the road and the traffic signal because he had

owned property in the area. Although appellant asserted at the scene that he had

trouble seeing the traffic signal lights because of the wind, several of the State’s

witnesses contradicted appellant’s account and testified that the wind was not

blowing so hard that the lights were affected. The evidence showed that appellant

had good driving conditions, with dry pavement and clear visibility.

We also note that although appellant asserts that his actions constituted a lapse

of attention that did not rise to the level of a “gross deviation” from the ordinary

standard of care, the Court of Criminal Appeals has explained that if the inference

that a particular individual on trial was aware of the risk is reasonable, it is for the

trier of fact to determine which circumstances to accept as proven and whether to

draw that inference, and it is not for an appellate court to overturn such an inference,

drawn on the whole of circumstances. Dillon , 574 S.W.2d at 94 .

Here, appellant, who was familiar with the particular section of road, traveled

15–25 miles per hour in excess of the speed limit, failed to slow down as he

approached the intersection, ran a red light, and failed to keep a proper lookout so as

to apply his brakes before striking a vehicle in the intersection. We conclude that a

rational trier of fact could infer from the evidence that an ordinary or reasonably

prudent person ought to have been aware that a substantial and unjustifiable risk was

created and that appellant’s failure to perceive the risk constituted a gross deviation

from the ordinary standard of care. See Tex. Pen. Code Ann. § 6.03(d).

Accordingly, we hold that the evidence was legally sufficient to establish the culpable

mental state of criminal negligence. See Lopez v. State , 630 S.W.2d 936, 941 (Tex.

Crim. App.1982) (holding evidence was legally sufficient to support finding of

criminal negligence where defendant exceeded speed limit and ran red light on a city

thoroughfare at 11:30 p.m.); Brown v. State , 773 S.W.2d 65, 67 (Tex. App.—Fort

Worth 1989, pet. ref’d) (holding evidence was legally sufficient to support finding

of criminal negligence where defendant was driving at high rate of speed, failed to

slow down as he approached intersection and failed to watch traffic light); Thompson

v. State , 676 S.W.2d 173, 178 (Tex. App.—Houston [14th Dist.] 1984, no pet.)

(holding evidence was legally sufficient to support finding of criminal negligence

where defendant drove her car at excessive rate of speed in residential neighborhood

near bus stop at time of early morning when children normally would be on their way

to school).

In regard to appellant’s argument that the evidence is factually insufficient to

support the jury’s finding that his failure to perceive the risk constituted a gross

deviation from the ordinary standard of care, appellant again asserts that his “lapse

of attention to the red light was not sufficient to rise above the normal lapses incurred

by ‘ordinary’ drivers.” However, viewing the above outlined evidence neutrally, we

cannot conclude that the evidence in support of the finding is so weak that the verdict

is clearly wrong or manifestly unjust. Nor can we conclude that any contrary

evidence is so strong that the standard of proof beyond a reasonable doubt could not

have been met. Accordingly, we hold that the evidence was factually sufficient to

establish the culpable mental state of criminal negligence.

We overrule appellant’s first and second points of error. Hearsay In his third point of error, appellant contends that the trial court erred in

admitting, during the punishment phase of trial, the hearsay testimony of a police

officer about an extraneous bad act. The officer testified that he had previously been

dispatched to a “burglary” of appellant’s apartment and that appellant had barricaded

himself in his apartment. Appellant asserts that the officer should not have been

permitted to relate historical aspects of the extraneous matter beyond explaining that

the officer had been dispatched to appellant’s apartment.

Hearsay is defined as “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Tex. R. Evid . 801(d) (Vernon 2003). Here, the testimony elicited from the

officer was not for the purpose of proving the truth of the matter within the statement,

but rather to show why the officer went to appellant’s apartment. The truth of

whether or not a burglary had in fact taken place at appellant’s apartment was not in

issue. Where information is offered for a reason other than to prove the truth of the

statement, the evidence is not inadmissible hearsay. Martinez v. State , 22 S.W.3d

504, 508 (Tex. Crim. App. 2000). Furthermore, it was permissible for the State to

show the officer was present in response to information received. Shaffer v. State ,

777 S.W.2d 111, 114 (Tex. Crim. App. 1989); see also Black v. State , 503 S.W.2d

554, 557 (Tex. Crim. App. 1974) (finding no error for trial court to permit officer to

testify only that he had heard general broadcast over the police radio about robbery).

Accordingly, we hold that the trial court did not err in allowing the officer to testify

that he had been dispatched to appellant’s residence in response to a burglary.

We overrule appellant’s third issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Nuchia, Jennings, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).