Sarah Victoria Jarvis v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-108-CR
SARAH VICTORIA JARVIS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant Sarah Victoria Jarvis of criminally negligent
homicide, and it assessed her punishment at two years’ confinement but
recommended community supervision.2 The trial court sentenced Jarvis
accordingly, suspended imposition of her sentence, and placed her on
1
… See Tex. R. App. P. 47.4.
2
… The jury acquitted Jarvis of manslaughter and aggravated assault with
a deadly weapon.
community supervision for five years. In one point, Jarvis argues that the
evidence is legally insufficient to support her conviction for criminally negligent
homicide. We will affirm.
In the early morning hours of May 28, 2006, at approximately 3:00 a.m.,
Jarvis was driving on Highway 183 when she slammed her vehicle into the
back of a vehicle being driven by Chris Britton. The collision caused Britton’s
vehicle to spin around and to tumble over a guardrail and concrete wall and
down an embankment to a dried-out creek bed. Megan Howard, a passenger
in Britton’s vehicle, was ejected from the vehicle and killed.3
In challenging the legal sufficiency of the evidence to support her
conviction, Jarvis argues that “[t]his was an accident based on speeding
violations of all the parties and not a criminal act based on [her] criminal
negligence” because, other than excessive speed, no other facts were
presented at trial—such as alcohol or drugs—that constituted “contributing
factors” to the accident. Thus, according to Jarvis, this is not a case of
criminal negligence because the only basis for her conviction is evidence of
3
… A paramedic who was dispatched to the scene of the incident testified
that Howard had injuries that were “incompatible with life” and was dead.
According to the medical examiner who performed her autopsy, Howard’s brain
was badly lacerated and fragmented.
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excessive speed, which is insufficient in and of itself to support a conviction for
criminally negligent homicide. 4
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all of the evidence in the light most favorable to the prosecution in
order to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). This standard gives full play
to the responsibility of the trier of fact to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235
S.W.3d at 778. The trier of fact is the sole judge of the weight and credibility
of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979);
Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied,
129 S. Ct. 2075 (2009). Thus, when performing a legal sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute
our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740
(Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we
4
… Jarvis preserved this issue for appellate review.
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“determine whether the necessary inferences are reasonable based upon the
combined and cumulative force of all the evidence when viewed in the light
most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.
Crim. App. 2007). We must presume that the factfinder resolved any
conflicting inferences in favor of the prosecution and defer to that resolution.
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.
A person commits an offense if he causes the death of an individual by
criminal negligence. Tex. Penal Code Ann. § 19.05(a) (Vernon 2003). The
penal code defines criminal negligence 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.
Id. § 6.03(d) (Vernon 2003). “In short, it is the ‘failure to perceive’ the risk of
a resulting death which must rise to the level of a ‘gross deviation’ from an
ordinary standard of care.” Graham v. State, 657 S.W.2d 99, 101 (Tex. Crim.
App. 1983). Judge Cochran explained the difference between criminal
negligence and civil negligence:
Civil or “simple” negligence “means failure to use ordinary
care, that is, failing to do that which a person of ordinary prudence
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would have done under the same or similar circumstances or doing
that which a person of ordinary prudence would not have done
under the same or similar circumstances. . . .”
Criminal negligence, however, requires a significantly greater
degree of deviation from this standard of care before a person may
be held criminally liable. It must be a “gross” or extreme deviation
from that standard. And it is measured solely by the degree of
negligence, not any element of actual awareness. Conduct that
constitutes criminal negligence involves a greater risk of harm to
others, without any compensating social utility, than does simple
negligence. A person may be found criminally negligent when he
inadvertently creates a substantial and unjustifiable risk of which
he ought to be (but is not) aware. And a jury must evaluate the
defendant’s failure of perception and determine whether, under all
the circumstances, it was serious enough to be condemned under
the criminal law.
Tello v. State, 180 S.W.3d 150, 158–59 (Tex. Crim. App. 2005) (Cochran, J.,
concurring) (citations omitted).
In this case, count two of the indictment alleged the offense of criminally
negligent homicide as follows:
And it is further presented in and to said court that the defendant
in the County of Tarrant and State aforesaid on or about the 28th
day of May, 2006, did then and there by criminal negligence,
to-wit: by failing to control her motor vehicle and/or by failing to
keep a proper lookout for another motor vehicle, and/or by
operating the motor vehicle above the posted speed limit, and/or by
driving a motor vehicle while sleepy, and/or by failing to stay
awake while operating a motor vehicle on a public roadway, and/or
by failing to make a safe lane change while operating a motor
vehicle on a public roadway laned for traffic, and/or by failing to
maintain an assured clear distance between the motor vehicle she
is operating and other motor vehicles on the same public roadway,
cause the death of an individual, Megan Howard, by driving said
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motor vehicle into and against a motor vehicle in which Megan
Howard was a passenger[.]
The evidence demonstrates that the portion of Highway 183 where the
accident occurred is a public roadway, laned for traffic, with three westbound
lanes and three eastbound lanes. The posted speed limit is sixty miles per hour.
Britton described the traffic on Highway 183 as “fairly light” on the night
of the incident. He testified that he was driving in the center lane between
sixty and sixty-five miles per hour when Jarvis’s vehicle collided with the back
of his vehicle.
Deandra King witnessed the accident and testified that Britton’s vehicle,
which was in front of the vehicle King was in, was traveling fifty-five or sixty
miles per hour. King testified that Jarvis’s vehicle passed him going “at least
100 miles per hour” just before it struck Britton’s vehicle. Defense counsel
questioned the preciseness of King’s estimation of Jarvis’s speed, but King
responded, “It is not about thinking or guessing; it is about what I know. She
was going a hundred miles an hour, that driver was.” King also reasoned,
“Well, when you have a car going so fast you have the other car [the car King
was traveling in] . . . shake, they are going to go at least a hundred miles an
hour.” [Emphasis added.] After the accident, King exited the vehicle he was in
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and spoke with Jarvis, who asked what had happened and told King that she
thought she had fallen asleep.
Two expert witnesses testified for the State. Ray Wangler testified that
he calculated the speed of Jarvis’s vehicle when it contacted Britton’s vehicle
at between 104 and 109 miles per hour. 5 Timothy Lovett testified that
according to his calculations, Jarvis’s vehicle was traveling between 99 and
101 miles per hour when it contacted Britton’s vehicle.
Ray Wilson, a detective with the Fort Worth Police Department, was the
primary investigator assigned to the incident. Detective Wilson opined that
Jarvis failed to maintain an assured clear distance between her vehicle and the
other vehicles in the same roadway, that Jarvis operated her vehicle over the
posted speed limit, and that Jarvis failed to keep a proper lookout for other
motor vehicles on the roadway and not come into contact with them.
Detective Wangler opined that Jarvis was not able to make a safe lane change,
operated her vehicle above the posted speed limit, failed to maintain a proper
5
… In an affidavit accompanying a search warrant for Jarvis’s vehicle,
Detective Wangler calculated that the speed of Jarvis’s vehicle at the time of
the collision was ninety miles per hour, but he arrived at this figure by using a
“low end” book value (.8) for a particular variable (drag coefficient). After
Detective Wangler “skid tested” the section of the pavement where the
accident occurred, he came up with a drag coefficient of .92, which he used
to calculate the minimum speed of 104 miles per hour.
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lookout, and failed to maintain an assured clear distance between her car and
other cars on the roadway.
Contrary to Jarvis’s argument, this is not a case of mere civil negligence
resulting from her only driving over the posted speed limit. Rather, to use
Jarvis’s lingo, there are other “contributing factors.” Specifically, the jury could
have rationally found that Jarvis should have perceived, but failed to perceive,
a substantial and unjustifiable risk of death from her conduct of driving her
vehicle at over 100 miles per hour at 3:00 a.m. on a public roadway with a
posted speed limit of only 60 miles per hour while sleepy, while failing to stay
awake, while failing to keep a proper lookout for another motor vehicle, or while
failing to maintain an assured clear distance between her vehicle and other
vehicles on the roadway. See Tex. Penal Code Ann. § 6.03(d). The jury also
could have rationally found that Jarvis’s failure to perceive this substantial and
unjustifiable risk of death was a gross deviation from the standard of care that
an ordinary person would exercise under the circumstances. See id.; Graham,
657 S.W.2d at 101 (reasoning that driver’s failure to perceive risk of death
from acts of speeding, racing, and ignoring a red traffic control signal while
approaching an intersection was clearly a gross deviation from the ordinary
standard of care); see also Cooks v. State, 5 S.W.3d 292, 295–96 (Tex.
App.—Houston [14th Dist.] 1999, no pet.) (affirming manslaughter conviction
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of appellant who drove vehicle 100 miles per hour in a 55 miles-per-hour zone
and stating that “[i]t is universally acknowledged that speed kills”). Thus, the
State proved that Jarvis’s failure to perceive a substantial risk of death from her
conduct grossly deviated from an ordinary standard of care. See Graham, 657
S.W.2d at 101. Viewing all the evidence in the light most favorable to the
prosecution and giving full play to the responsibility of the jury to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts, we hold that the evidence is
legally sufficient to support Jarvis’s conviction for criminally negligent homicide.
See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at
778. Accordingly, we overrule Jarvis’s only point and affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 11, 2010
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