HECTOR A. PENA, Appellant
THE STATE OF TEXAS, Appellee
Appeal from the 212th District Court Galveston County, Texas
Trial Court Cause No. 12CR3366
consists of Justices Jamison, Wise, and Jewell.
Hector Pena raises three issues in this appeal of his
conviction for criminally negligent homicide. In his first
two issues, appellant contends that there is legally
insufficient evidence to support the jury's findings on
criminally negligent homicide and on use of a deadly weapon.
In his third issue, appellant contends that a prior appeal by
the State in this case-on which this court already ruled-is
barred by double jeopardy.
driving a semi-truck, appellant ran over and killed
eleven-year-old Christina Lopez. A grand jury indicted
appellant for manslaughter. At trial, the jury was charged on
manslaughter and the lesser-included offense of criminally
negligent homicide. The jury found appellant guilty of
criminally negligent homicide. The jury also answered a
special issue-whether appellant used a deadly weapon during
the commission of the offense-in the affirmative. The jury
assessed four years' confinement as punishment.
filed a notice of appeal. He also filed a motion for new
trial, which challenged the trial court's failure to
quash the indictment due to inadequate allegations of
recklessness. The trial court granted a new trial, and the
State filed an interlocutory appeal of that order. See
State v. Pena, No. 14-14-00746-CR, 2015 WL 4141101 (Tex.
App.-Houston [14th Dist.] July 9, 2015, no pet.) (mem. op.,
not designated for publication) ("Pena
I"). This court abated appellant's appeal
pending resolution of the State's interlocutory appeal.
This court reversed the order granting a new trial and
remanded to the trial court with instructions to reinstate
the judgment. Id. at *7. The State then moved to
reinstate appellant's direct appeal of his conviction.
This court granted the motion and reinstated appellant's
challenges to his conviction are now ripe for review.
first two issues, appellant challenges the sufficiency of the
evidence supporting two of the jury's findings: (1)
whether appellant was guilty of criminally negligent
homicide; and (2) whether appellant committed the crime with
a deadly weapon. Reviewing courts apply a legal-sufficiency
standard in determining whether the evidence is sufficient to
support each element of a criminal offense that the State is
required to prove beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979); Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)
(plurality op.). Under this standard, we examine all the
evidence adduced at trial in the light most favorable to the
verdict to determine whether a jury was rationally justified
in finding guilt beyond a reasonable doubt. Temple v.
State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013);
Criff v. State, 438 S.W.3d 134, 136-37 (Tex.
App.-Houston [14th Dist.] 2014, pet. ref'd). This
standard applies to both direct and circumstantial evidence.
Criff, 438 S.W.3d at 137. Accordingly, we will
uphold the jury's verdict unless a rational factfinder
must have had a reasonable doubt as to any essential element.
Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim.
App. 2009); West v. State, 406 S.W.3d 748, 756 (Tex.
App.-Houston [14th Dist.] 2013, pet. ref'd).
third issue regarding jeopardy principles is purely a legal
question. We decide that issue as a matter of law. State
v. Johnson, 948 S.W.2d 39, 40 (Tex. App.-Houston [14th
Dist.] 1997, no pet.).
address appellant's third issue first, because it raises
a jurisdictional question. Appellant argues that "[t]he
State's appeal is jeopardy barred." This is a
repetition of an argument appellant made-and we rejected-in
the State's earlier interlocutory appeal. See Pena
I, 2015 WL 4141101, at *5 (overruling Pena's
"cross-issue" that the State's appeal was
jeopardy barred). We conclude the issue is moot because the
only appeal before us is by appellant, not the State, and so
appellant is not "threaten[ed] . . . with an
impermissible successive trial." State v.
Blackshere, 344 S.W.3d 400, 406 (Tex. Crim. App. 2011).
overrule appellant's third issue.
Criminally Negligent Homicide
jury found appellant guilty of criminally negligent homicide.
In his first issue, appellant challenges the legal
sufficiency of the evidence to support the jury's
finding, both as to the required culpable mental state for
criminal negligence and as to causation.
person commits criminally negligent homicide if he causes the
death of another by criminal negligence. Tex. Penal Code
§ 19.05(a). Criminal negligence occurs when the person
ought to be aware of a substantial and unjustifiable risk
that the circumstances exist or the result will occur.
Id. § 6.03(d). The offense of criminally
negligent homicide "involves inattentive risk creation,
that is, the actor ought to be aware of the risk surrounding
his conduct or the results thereof but fails to perceive the
risk." Stadt v. State, 182 S.W.3d 360, 364
(Tex. Crim. App. 2005) (internal quotation omitted). 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. Penal Code § 6.03(d). In short, to prove a
defendant is guilty of criminally negligent homicide, the
State is required to prove beyond a reasonable doubt that the
defendant's failure to perceive a substantial risk of
death grossly deviated from an ordinary standard of care.
See Tello v. State, 180 S.W.3d 150, 156 (Tex. Crim.
appellant contends that the State failed in its burden and
the jury findings lack legally sufficient support because he
saw Lopez sitting by the side of the road as he turned his
truck onto the same road. Because criminally negligent
homicide requires the State to prove that an accused failed
to perceive a substantial risk of death, appellant argues
that his perception of Lopez negates the jury's finding.
mischaracterizes the inquiry. The offense of criminally
negligent homicide involves "inattentive risk
creation." Stadt, 182 S.W.3d at 364. The
question is not whether appellant perceived Lopez; the
question is whether appellant ought to have been aware that
the attendant circumstances of his situation created a
substantial and unjustifiable risk that Lopez could die as a
result of his conduct. See Montgomery v. State, 369
S.W.3d 188, 193 (Tex. Crim. App. 2012). Thus, if an ordinary
person in appellant's position-perceiving Lopez by the
side of the road-would have stopped, honked, braked sooner,
modified his turning radius, ...