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Pena v. State

Court of Appeals of Texas, Fourteenth District

March 2, 2017

HECTOR A. PENA, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 212th District Court Galveston County, Texas Trial Court Cause No. 12CR3366

          Panel consists of Justices Jamison, Wise, and Jewell.

          OPINION

          Kevin Jewell Justice

         Appellant 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.

         We affirm.

          Background[1]

         While 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.

         Appellant 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 appeal.

         Appellant's challenges to his conviction are now ripe for review.

         Standard of Review

         In his 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).

         Appellant's 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.).

         Analysis

         A. Double Jeopardy

         We 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).

         We overrule appellant's third issue.

         B. Criminally Negligent Homicide

         The 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.

         1. Mental State

         A 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. App. 2005).

          Here, 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.

         Appellant 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, ...


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