Vehicular Homicide – Criminally Negligent Homicide

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577


Criminally Negligent Homicide is controlled by Texas Penal Code 19.05(a) which says, “A person commits an offense if he causes the death of an individual by criminal negligence.”  It is a State Jail Felony punishable between 180 days and 2 years in a State Jail facility and a fine not to exceed $10,000.

Criminal Negligence

“Criminal Negligence” under Texas Law is multifacited for the purposes of a distracted driving death case.  A typical jury is instructed:

A person causes the death of an individual by criminal negligence if—
1. there is a substantial and unjustifiable risk that his conduct will cause
that death;
2. this risk is 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 person’s standpoint;
3. the person ought to be aware of that risk.

I highlighted the word “ought” because this is the distinction between Criminally Negligent Homicide and Manslaughter.  For Manslaughter, a person is actually aware of the danger yet consciously disregards the danger.

This is known as a “culpable mental state” and is a topic of first-year law school.  In Latin we call it “Mens Rea.”  Manslaughter requires a higher mental state and Criminally Negligent Homicide is a lower mental state.


As I discussed with Manslaughter, Causation is critical yet confusing.  The test in Texas is what is known as “but for” causation.  That is, “but for” the acts of the Defendant, would the person have died?  But consider a case where the deceased made mistakes which contributed to their own death?  This is known as concurrent causation.

The test for concurrent causation is whether the concurrent cause, on its own, was insufficient to cause the person’s death.

Here’s an example:

Driver 1 is texting and driving and fails to properly yield the right of way to another driver (Driver 2).  Driver 2 is also texting and was careless about seizing the right of way from Driver 1.  Driver 2 dies in the collision.  The Jury would have to resolve two questions for causation — first, is Driver 1’s distracted driving the “but for” cause of Driver 2’s death; and second, is Driver 2’s own carelessness insufficient on it’s own to cause his/her death?

It’s hard stuff – and unfortunately Jurors have a hard time tuning out emotion too — but that’s another topic.


Criminally negligent homicide for distracted driving or texting while driving in Texas is a lesser charge than Manslaughter.  The reason is because the culpable mental state also lower.  Other than the mental state there is little legal difference between Manslaughter and Criminally Negligent Homicide, however, the punishment ranges are clearly much less than for Manslaughter (2-20 years).  I hope this helps you understand the issues!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is recognized as a 2019 Super Lawyer by Thomson-Reuters.

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