Vehicular Homicide – Defending Through Technology

April 23, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Technology is our friend in defending a distracted driving death case.

Why is technology our friend?  Because more often than not, it provides us with a 360-degree view of what was going on in everyone’s mind and car at the time of the accident.  Law enforcement and prosecution, on the other hand, tend to see one nugget of technological information.  When they do, they jump to conclusions and blind themselves to anything else.

An Example of Using Technology to Tell the Full Story:

Let’s say Driver 1 and Driver 2 collide causing the death of Driver 2 — and Driver 1 is on trial for Vehicular Manslaughter.

Let’s assume police are able to lawfully get into Driver 1’s phone (a big assumption).  Driver 1 was shown to have sent 3 texts in the 5 minutes before the crash with one text received 15 seconds before the accident.

Police then jump up and down hollering this is conclusive Driver 1 was distracted and caused the death of Driver 2.

But we’re capable knowing a much fuller story than just this.

We can tell based on the car’s infotainment system virtually anything being communicated to Driver 1 from the car.  Was there a hands-free system being used at the time through bluetooth or through a USB cable? Did the car have lane-assist and if so, was the driver in his/her lane?  Did the driver brake and/or moderate their speed?

Many of these things are knowable from both cars in the accident.

infotainment-systems-696x464.jpg

Car “Infotainment” systems can be key evidence in manslaughter and criminally negligent homicide cases.

Investigation and Privilege in Defending Vehicular Death Charges

A common fear is, “what if we dig into the technology and the truth actually hurts us?”

It’s a good question – but remember – your lawyer’s investigation is privileged.  If the investigation unearths bad or harmful information, then the information doesn’t boomerang and hurt the defense.  The public policy behind this is simple — Defense lawyers and defense investigators would never really dig into the truth if they were always afraid of what they might uncover.

Summation

The cornerstone to any good distracted driving homicide case whether it be criminally negligent homicide or manslaughter is being fluid with the technology surrounding the entire case.  The more information, typically the better.

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

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Vehicular Homicide – Criminally Negligent Homicide

April 22, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

infotainment-systems-696x464

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;
and
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.

Causation

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.

Summation

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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The Law On Manslaughter and Criminally Negligent Homicide in Texas

October 16, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Manslaughter

Manslaughter in Texas is codified under Texas Penal Code Chapter 19.04(a) and is committed when someone “recklessly causes the death of an individual.”  Manslaughter is a 2nd Degree Felony (2 to 20 years in the Texas Department of Corrections).

The legal definition for reckless is defined by Tex.Pen.C. 6.03(c).  That provision states, ” A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards 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 its disregard 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.”

This legal standard is clearly and obviously subjective. Therefore, no bright line test as to any fact scenario can be indicative of whether a death could be charged as manslaughter as compared to any other form of homicide under Chapter 19.  The best way to show what may be “reckless” is by giving some examples of cases where convictions for manslaughter were upheld on appeal.

Examples of Manslaughter Cases Upheld on Appeal

In Threet v. State, 2003 Tex. App. LEXIS 4136 (Tex.App. — Austin, 2003), Defendant was convicted of manslaughter where he and the victim, another college age student, got into an argument at a house-party and went outside to “trade licks.”  The victim punched Defendant first in the chest, and the Defendant then punched victim in the face.  When the victim fell to the ground, Defendant continued to punch him several times then kick him in the head with a hiking boot.  The victim died later that evening.  Defendant was indicted for murder, but was convicted of manslaughter, a lesser-included offense.

In Willis v. State, 761 S.W.2d 434 (Tex.App. — Houston [14th Dist]), Defendant was similarly convicted of manslaughter where he struck a man with a pistol-butt on the head on the steps leadning into a pool hall.  The victim fell backwards and struck his head on the board.  The victim broke his neck and died the next day.  Similar to Threet, Defendant was originally charged with murder but the jury found the lesser-included offense of manslaughter to be appropriate.

Manslaughter is similar, but should not be confused with intoxicated manslaughter which you can read about here.

Criminally Negligent Homicide

Criminally negligent homicide is defined by Texas Penal Code Chapter 19.05(a) and is committed when someone causes the death of an individual by criminal negligence.  Criminally negligent homicide is a State Jail Felony (between 180 days and 2 years in a State Jail institution).

Criminal negligence is defined by Tex.Pen.C. 6.03(d) and is occurs when someone 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.”

Again, this standard is extremely subjective, so here is a case where appeals courts have sustained convictions for criminally negligent homicide:  Chambless v. State, 368 S.W.3d 785 (Tex.App.– Austin, 2012), Defendant woke up in the middle of the night due to noises in his front yard.  Assuming it was a neighbors dog, Defendant fired a semi-automatic rifle three to five times into the yard.  Unbeknownst to Defendant, the victim, a neighbor was in his yard and had been hit by the bullets.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any situation, you should consult an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications sent through this forum are not confidential nor privileged.

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Posted by Jeremy Rosenthal, Esq.