In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00028-CR __________________
VALYN ROSE FAULK, Appellant
V.
THE STATE OF TEXAS, Appellee __________________________________________________________________
On Appeal from the 128th District Court Orange County, Texas Trial Cause No. A200085-R __________________________________________________________________
MEMORANDUM OPINION
The issue in this appeal is whether the evidence supports Valyn
Rose Faulk’s conviction for manslaughter under an indictment alleging
that she recklessly caused the death of Derrick Cane Jr. by “operating a
motor vehicle and failing to control the speed of the said motor vehicle
and by failing to keep an adequate lookout for other traffic on the
1 roadway and by failing to apply the brakes in a timely manner.” 1 Under
Texas law, a person acts recklessly when the person “is aware of but
consciously disregards a substantial and unjustifiable risk that the
circumstances exist or the result will occur.” 2 On appeal, Faulk argues
that the evidence is insufficient to support her conviction because the
evidence doesn’t establish that she was driving her car recklessly when
she struck Cane, who had stepped behind a garbage truck that had
stopped on the traveled portion of Farm to Market Road 3247 (FM 3247
or MLK Drive) as he was performing his job collecting garbage cans left
beside the road. The collision occurred around four and one-half seconds
after the garbage truck stopped.
At trial, the State’s theory of the case was that Faulk acted
recklessly by failing to keep a proper lookout for a period of 15 seconds as
she approached the truck, by failing to apply her brakes before hitting
the truck, and by driving her car at a speed of 53 miles per hour in a
residential area, a road that runs by a church and school. The posted
speed limit in the area where the collision occurred is 50 miles per hour.
1See Tex. Penal Code Ann. § 19.04(a). 2Id. § 6.03(c).
2 In closing argument, Faulk’s attorney argued that the State failed to
prove that Faulk had acted recklessly because the evidence didn’t show
Faulk had been driving at an excessive rate of speed, and he attributed
the fact that she didn’t see the garbage truck to a problem with glare from
the sun and poor markings on the back of the truck, yellow hazard lights
that were the same color as the glare from the sun.
On appeal, a video-recoding from inside the cab of the truck shows
the garbage truck had stopped for just under five seconds when Faulk’s
car rear-ended the truck. But the evidence admitted in the trial doesn’t
show where the garbage truck turned onto FM 3247 or whether the
garbage truck had been in the southbound lane of FM 3247 for a full
fifteen seconds before the collision occurred. The evidence also doesn’t
show how fast the garbage truck was traveling on FM 3247 before it
began to slow down in preparing for the stop, whether the driver of the
truck signaled to traffic behind the truck that the truck would be slowing
to stop, or whether the hazard warning signals on the back of the truck
came on automatically when the truck slowed below a given speed. The
jury heard no evidence that Faulk knew that garbage trucks or trucks on
FM 3247 customarily stopped in the area where the collision occurred
3 while men on the truck performed work in the traveled portion of the
road or that signs in the area warned drivers to be prepared to stop
because drivers should expect that individuals could be working from
trucks that were stopped in the traveled portion of the road.
On this record, we conclude the evidence is insufficient to establish
that Faulk was aware of but consciously disregarded a substantial and
unjustifiable risk that someone would be working in the road or that a
truck would be stopped so that an employee on the truck could perform
work in the traveled portion of the road. Accordingly, we reverse the trial
court’s judgment and render a judgment of acquittal.
Background
Viewed in the light most favorable to the verdict, the evidence in
Faulk’s trial shows that on November 26, 2018, Faulk rear-ended a
Waste Management garbage truck while both vehicles were in the
southbound lane on MLK Drive, a two-lane roadway with a turning lane
in the middle and an improved shoulder. 3 As mentioned, a videotape from
inside the garbage truck shows the truck had been stopped for four and
3Jackson v. Virginia, 443 U.S. 307, 319 (1979); Queeman v. State,
520 S.W.3d 616, 622 (Tex. Crim. App. 2017). 4 one-half seconds before Faulk struck it with her car. The speed limit in
the area where the collision occurred is 50 miles per hour. Additionally,
the speed limit changes from 55 to 50 about 200 yards north of the
location where Faulk rear-ended the truck.
Derrick Cane Jr., a Waste Management employee working on the
back of the garbage truck, was fatally injured in the collision. Fifteen
months after the collision occurred, the State indicted Faulk, charging
her with manslaughter. 4 The indictment alleges that Faulk recklessly
caused Cane’s death based on the way she operated her car, specifically
by failing to control her speed, failing to keep an adequate lookout for
other traffic on the roadway, and failing to timely apply her brakes before
the collision occurred. 5
The parties tried the case to a jury in December 2021. The State’s
theory in the trial was that the garbage truck was on FM 3247 in front of
Faulk for fifteen seconds and that during that period Faulk was applying
her makeup rather than keeping a proper lookout for traffic in front of
4Tex. Penal Code Ann. § 19.04(a). 5The indictment also alleged that Faulk caused Cane’s death by
operating her vehicle while intoxicated or under the influence of a controlled substance or drug. The State dropped those claims before the trial occurred. 5 her. According to the State, it was reckless for Faulk not to have watched
the road for that fifteen seconds because during those fifteen seconds she
could have seen the garbage truck, slowed down, and stopped her car.
Adrienne Fontenot, who was also employed by Waste Management,
was driving the garbage truck when the collision occurred. At trial,
Fontenot testified that she felt the effect of a collision but didn’t see
Faulk’s car when it approached her truck. The State also called Sam
Watters Jr., who testified he was driving “three cars back” from Faulk
and saw the collision occur. Watters neither testified to the speed at
which he was driving his car, nor did he provide the jury with an estimate
of the speed of Faulk’s car. According to Watters, he could see there was
a garbage truck, he saw “[e]veryone was slowing down,” but he never saw
Faulk’s car slow down. Watters explained that after witnessing what he
described as “a very violent collision[,]” he “proceeded to slow down, exit
[his] vehicle, and [he] call[ed] 911.”
Following the collision, several officers from the Orange Police
Department responded to the scene. Detective Isaac Henry III, the officer
in charge of investigating the wreck, testified that he spoke with Faulk
while she was still at the scene. Detective Henry explained that he
6 observed Faulk’s demeanor and in the report that he prepared of his
investigation, Detective Henry noted that he didn’t notice that Faulk
exhibited any signs of intoxication. Detective Henry explained that he
examined Faulk’s car, and he testified that in her car he saw an open bag
with makeup in it and there were also open bottles of makeup loose in
her car. Henry also said that he noticed the presence of dark marks on
the airbag of Faulk’s car, which Henry said he thought were smudges of
makeup. Detective Henry noted that the sun visor on the driver’s side of
Faulk’s car “was pulled down,” and the slide to the visor, which allows
the mirror in the visor to show, was open. Detective Henry testified that
he believed that a dark substance on the car’s driver’s side airbag was
mascara. Yet Detective Henry conceded he wasn’t certain the substance
on the airbag was mascara because it was never tested.
Detective Henry testified that with Faulk’s permission, he
examined Faulk’s cell phone and determined that when the collision
occurred, she wasn’t texting or using her phone. The detective added that
Faulk left the scene and went to the hospital, where she was treated for
a concussion. When Detective Henry went to the hospital to speak to
Faulk, he first spoke to her mother, who told him that Faulk had suffered
7 two prior concussions when she was in high school. Detective Henry then
spoke to Faulk in a room in which the lights had been dimmed. Faulk
told the detective she had a headache and nausea. According to Detective
Henry, when he asked her about the wreck, she told him that “she just
remembered getting her keys and leaving the house.” She also told him
she was headed to work that day, and she said she worked at a restaurant
in Orange, which she named.
On cross-examination, Detective Henry agreed that the fact he saw
bottles of makeup strewn about in the car could be consistent with having
an open bag of makeup in the car when the car was involved in a collision.
He also agreed that a person who is wearing lipstick or mascara may
transfer the makeup they are wearing to the airbag when the airbag is
deployed.
The State called Dean Nance to testify about the data he obtained
from the control unit in Faulk’s car (the black box). Nance testified that
he is trained in the science of reconstructing accidents. After explaining
how he obtained the right to access the black box in Faulk’s car, Nance
testified that the data he extracted from Faulk’s car shows that she was
traveling at an average speed of 53 miles per hour in the five seconds
8 before rear-ending the truck. Nance also explained that the data he
extracted from the black box shows that Faulk never applied her brakes
before hitting the truck. On cross-examination, Nance agreed he was
never asked by the State to reconstruct the accident. Nance also agreed
that given the posted speed limit in the area of the wreck, Faulk wasn’t
driving at a high rate of speed.
To establish that the garbage truck was visible for fifteen seconds
to a driver that was in the southbound lane of FM 3247, the State relied
on the testimony of Detective Stephen Ward, an employee of the Orange
Police Department. Detective Ward based his testimony on an
experiment that he performed the day after the collision. In the
experiment, which was videotaped by a camera in the detective’s car,
Detective Ward assumed the garbage truck was stopped in the
southbound lane of FM 3247 in the same location where Faulk struck the
truck. Ward then approached the truck in the southbound lane, and
based on the videotape, which was admitted into evidence, Detective
Ward testified the garbage truck is visible as it is being approached in
the southbound land at a distance of two-hundred yards.
9 Officer Michael Roush, a City of Orange patrolman, was the first
police officer to arrive after he was notified by police dispatcher of the
wreck. According to Officer Roush, he knew from the damage to the
vehicle and from the injuries that he saw that he would need more
officers to come to the scene to assist him with investigating the wreck.
He checked on Faulk, who was sitting in her car, and she gave him her
name but told him she couldn’t locate her driver’s license. Officer Roush
obtained Cane’s name from the emergency responders who were treating
Cane at the scene.
Officer Roush testified that he then began photographing the
evidence at the scene. The photos he took were admitted into evidence as
Exhibits 6-23. One of the photos shows that Cane was wearing a
fluorescent green vest. A photo of the driver’s seat of Faulk’s car, Exhibit
20, shows what Officer Roush described as an open bottle of mascara on
the driver’s seat of Faulk’s car. A picture of the sun visor in Faulk’s car
shows that the cover to the mirror, which works as a slide built into the
visor, is open. The photo shows that some areas of the sun visor are
darker than others. Officer Roush described these darker areas as
“smudges of makeup found near the mirror of [Faulk’s] . . . vehicle.”
10 Officer Roush also testified that when he arrived on the scene, the
truck’s “yellow flashing lights on the back end [were] operating[.]” Officer
Roush added that to his knowledge, the truck’s yellow flashing lights
continued to flash while the police were investigating the crash at the
scene. On cross-examination, Officer Roush agreed that as to the
smudges and makeup in the photos, he didn’t have any idea how long the
substances on those areas had been present, how the smudges got there,
or what the material deposited on the sun visor and airbag were.
Faulk rested after her attorney moved for a directed verdict. When
Faulk moved for a directed verdict, her attorney argued the State failed
to present sufficient evidence to allow a rational jury to conclude that
Faulk had acted recklessly in causing the wreck that resulted in Cane’s
death. The trial court denied Faulk’s motion. In closing argument, the
prosecutor argued that although nothing is certain, Faulk was “probably
putting on her makeup[,]” but that it didn’t really matter exactly what
she was doing because Faulk “consciously disregarded” her duty to keep
an adequate lookout “by taking her eyes off the road[.]” According to the
prosecutor, her conduct was reckless because she was driving “55 miles
per hour down a street with homes, a church, a school” when for “[f]ifteen
11 seconds before she killed [Cane] she could see that truck.” The prosecutor
summed it up by arguing it was a gross deviation from the standard of
care for Faulk to have failed to keep her eyes on the road for “such a long
period of time.”
The jury found Faulk guilty of manslaughter. Following the
punishment phase of the trial, the jury assessed a five-year sentence with
no fine, and the jury recommended that Faulk’s sentence be suspended.
The trial court signed a judgment consistent with the jury’s verdict,
suspended Faulk’s sentence, and placed Faulk on community supervision
for ten years. After the trial court signed the judgment, Faulk filed a
timely notice of appeal.
Standard of Review
In one issue, Faulk argues the trial court erred in denying her
motion for a directed verdict because the evidence is insufficient to show
that she acted recklessly—the mens rea attached to proving
manslaughter. 6 On appeal, we treat a point of error challenging the trial
6 Id. § 6.03(c); id. § 19.04(a).
12 court’s denial of a motion for directed verdict as a challenge to the
sufficiency of the evidence. 7
We review the sufficiency of the evidence to support a conviction
under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319
(1979). 8 Under that standard, we view the evidence in the light most
favorable to the verdict and determine, based on that evidence and any
reasonable inferences therefrom, whether any rational factfinder could
have found the essential elements of the offense beyond a reasonable
doubt. 9 “The jury is the sole judge of credibility and weight to be attached
to the testimony of witnesses.” 10 In this role, the jury may choose to
believe all, some, or none of the testimony presented by the parties.11
Further, the jury is permitted to draw multiple reasonable inferences
from facts as long as each is supported by the evidence presented at
trial. 12 When the record supports conflicting inferences, we presume that
7See Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App. 2003);
Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). 8See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). 9Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing
Jackson, 443 U.S. at 318-19). 10Id. 11Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). 12Temple, 390 S.W.3d at 360.
13 the jury resolved those conflicts in favor of the verdict and therefore defer
to that determination. 13
In reviewing the sufficiency of the evidence, we consider all the
evidence in the record, regardless of whether it was properly admitted.14
Direct and circumstantial evidence are equally probative of an actor’s
guilt, and “‘circumstantial evidence alone can be sufficient to establish
guilt.’” 15 In a circumstantial evidence case, each fact need not point
directly and independently to the guilt of the defendant so long as the
combined and cumulative force of all the incriminating circumstances
warrants the conclusion that the defendant is guilty. 16 “After giving
proper deference to the factfinder’s role, we will uphold the verdict unless
a rational factfinder must have had reasonable doubt as to any essential
element.” 17
Every criminal conviction must be supported by legally sufficient
evidence as to each element of the offense that the State must prove
13Id. 14Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). 15Temple, 390 S.W.3d at 359 (quoting Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007)). 16Id. (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.
App. 1993)); Hooper, 214 S.W.3d at 13. 17Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009).
14 beyond reasonable doubt. 18 To decide if this standard has been met, we
review the evidence in the light most favorable to the verdict and decide
whether a rational trier of fact could have found the essential elements
of the crime under the required standard of beyond reasonable doubt.19
Evidence in a trial may be circumstantial or direct, and we allow juries
to draw multiple reasonable inferences from the evidence with which
they are presented in a trial. 20 “Each fact need not point directly and
independently to a defendant’s guilt, as long as the cumulative force of
all the incriminating circumstances is sufficient to support the
conviction.” 21
“When considering a claim of evidentiary insufficiency, a reviewing
court does not sit as the thirteenth juror and may not substitute its
judgment for that of the factfinder by reevaluating the weight and
credibility of the evidence.” 22 “The jury is the sole judge of credibility and
weight to be attached to the testimony of witnesses.” 23 “If the record
18See Jackson, 443 U.S. at 315-16; Brooks, 323 S.W.3d at 917. 19Id. 20Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). 21Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016). 22Garcia v. State, 667 S.W.3d 756, 762 (Tex. Crim. App. 2023). 23Temple, 390 S.W.3d at 360.
15 supports conflicting inferences, the reviewing court must presume that
[the jury] resolved the conflicts in favor of the prosecution and defer to
the jury’s factual determinations. In other words, when there are two
reasonable interpretations of the evidence, [the jury’s] choice between
them cannot be clearly erroneous.” 24
A legally sufficient showing of manslaughter requires proof that (1)
the defendant’s conduct caused the death of an individual; (2) the
defendant created a substantial and unjustifiable risk of death from their
conduct; (3) the risk was of such a magnitude that disregarding it
constituted a gross deviation from the standard of care an ordinary
person would have exercised under like circumstances; and (4) the
defendant was consciously aware of the risk of death from their conduct,
but consciously disregarded the risk. 25 The circumstances must be viewed
from the standpoint of the actor when the allegedly reckless act occurred,
without viewing the matter in hindsight. 26
“[M]ere lack of foresight, stupidity, irresponsibility,
thoughtlessness, ordinary carelessness, however serious the
24Garcia, 667 S.W.3d at 762 (cleaned up). 25Williams v. State, 235 S.W.3d 742, 755-56 (Tex. Crim. App. 2007). 26Id. at 753.
16 consequences may happen to be, do not suffice to constitute either
culpable negligence or criminal recklessness.” 27 Criminal liability arises
when “some serious blameworthiness” attaches to the conduct that
caused a “substantial and unjustifiable” risk of death. 28 Unlike criminally
reckless conduct, “[c]ivil or ‘simple’ negligence means the failure to use
ordinary care, that is, failing to do that which a person of ordinary
prudence 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.” 29 “With criminal negligence,
the defendant ought to have been aware of a substantial and unjustifiable
risk that [their] conduct could result in the type of harm that did occur,
and that this risk was of such a nature that the failure to perceive it was
a gross deviation from the reasonable standard of care exercised by
ordinary people.” 30 “The key to criminal negligence is not the actor’s being
aware of a substantial risk and disregarding it, but rather it is the failure
of the actor to perceive the risk at all.” 31
27Id. at 751. (cleaned up). 28Tello v. State, 180 S.W.3d 150, 157-58 (Tex. Crim. App. 2005). 29Queeman, 520 S.W.3d at 623. 30Williams, 235 S.W.3d at 750-51. 31Montgomery v. State, 369 S.W.3d 188, 193 (Tex. Crim. App. 2012).
17 On the other hand, “the heart of reckless conduct is conscious
disregard of the risk created by the actor’s conduct.” 32 Criminal
“[r]ecklessness requires the defendant to actually foresee the risk
involved and to consciously decide to ignore it.” 33 “Criminal recklessness
must not be confused with (or blended into) criminal negligence, a lesser
culpable mental state.” 34 “Criminal negligence depends upon a morally
blameworthy failure to appreciate a substantial and unjustifiable risk
while recklessness depends upon a more serious moral
blameworthiness—the actual disregard of a known substantial and
unjustifiable risk.” 35
Generally, whether a defendant’s conduct constitutes criminal
negligence or recklessness must be inferred from the surrounding
circumstances. 36 We recognize that jurors may draw reasonable
inferences from evidence admitted in a trial, yet jurors may not draw
conclusions from inferences that are based on speculation or when the
32Williams, 235 S.W.3d at 752. 33Id. (emphasis added). 34Id. at 750. 35Id. at 751 (emphasis added). 36Romano v. State, 610 S.W.3d 30, 35 (Tex. Crim. App. 2020).
18 inference the jury makes is unsupported by the evidence. 37 The Court of
Criminal Appeals distinguished between a jury’s making a reasonable
inference and speculating, explaining:
Speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented. While a conclusion reached by speculation may not be completely unreasonable, and it might even prove to be true, it is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt. 38
Analysis
The parties to the appeal disagree whether the evidence when
viewed in the light most favorable to the jury’s verdict and from Faulk’s
standpoint—the standpoint of a driver on a road with a posted speed limit
of 50 miles per hour—proves beyond reasonable doubt that Faulk was
aware of but chose to consciously disregard a substantial and
unjustifiable risk that a garbage truck would stop on the traveled portion
of the road. On this record, we conclude the State failed to present
sufficient evidence to allow the jury to infer that Faulk was aware of but
consciously disregarded a substantial and unjustifiable risk under the
circumstances when viewed from her standpoint.
37Metcalf v. State, 597 S.W.3d 847, 859 (Tex. Crim. App. 2020). 38Id. (cleaned up).
19 We reach that conclusion for these four reasons. First, the jury
didn’t hear any testimony about how garbage trucks usually pick up
trash cans left alongside FM 3247. For that reason, there isn’t any
evidence in the record that shows that drivers on FM 3247 who are
familiar with the road and the usual driving conditions on that roadway
would have been aware of the way garbage trucks normally use the
traveled portion of FM 3247 to pick up trash. There is no testimony in
the record about whether garbage trucks using this road typically pull
over on the shoulder before stopping to pick up trash. There is also no
evidence in the record that shows that Faulk was aware trucks would be
stopping in the road. And there is no evidence that there were signs
warning drivers that they should be prepared to stop because trucks
would be stopping because men on the truck would be working in the
traveled portion of the road.
Second, there isn’t any testimony in the record that shows the
warning that a driver approaching the garbage truck from the rear would
normally receive that the garbage truck was preparing to stop so that
men on the truck could perform work while standing in the road. To be
clear, the jury could infer from the evidence that the lights on the back of
20 the truck were working after the collision and that the flashing lights on
the back of the truck were flashing for 4 and one-half seconds after the
truck stopped. Yet there isn’t any evidence that Faulk saw them after
they began flashing. And the fact lights began flashing after the truck
stopped doesn’t show what warning, if any, a car approaching from the
rear of the truck would have had as the truck was slowing down to stop.
When the truck’s driver testified, she didn’t testify how the lights
on the back of her truck work. She also didn’t explain whether she
engaged the lights before or after she stopped the truck. For that reason,
its speculative as to whether an approaching driver would have had
flashing lights as a warning that they were approaching a slow-moving
truck for a period of 8 to 9 seconds before the truck stopped.
Third, the prosecutor never questioned the garbage truck’s driver
about when she first started driving the truck in the traveled portion of
FM 3247 in the fifteen-second window in which the prosecutor theorized
that the truck was in Faulk’s line of sight. The video from inside the cab
shows the truck moving for about four to five seconds before it stops, and
the video also shows the truck stopped in the southbound lane of FM 3247
for about 4 and one-half seconds before the collision occurs. There isn’t
21 any testimony in the trial that shows how fast the truck was traveling
when it was moving, but it’s clear that the truck is moving for less than
five seconds, and it is not moving and stopped for 15 seconds before the
collision occurred. Thus, while the truck would have been visible from
two-hundred yards away, it’s speculative as to whether, during that full
15 seconds, the truck was in the southbound lane and when the
defendant would have realized it was in her lane had she been keeping a
proper lookout for it as she approached it from behind.
Fourth, based on this record, we conclude that Queeman v. State
provides the guiding principles that we must follow to resolve whether
the evidence before us is sufficient to rationally support the jury’s
inference that Faulk’s conduct was reckless. To begin, we note that
Queeman involved a rear-end collision case in which the Court of
Criminal Appeals found the evidence insufficient to support the jury’s
finding convicting the defendant of criminally negligent homicide, a mens
rea that requires less knowledge (ought to be aware) than the mens rea
necessary to prove recklessness, an offense that requires the State to
prove the defendant’s actual awareness of the circumstances of their
22 conduct and a conscious disregard of a substantial and unjustifiable
risk. 39
At trial, the State trooper who investigated the collision in
Queeman determined that the SUV the defendant rear-ended was
stopped or nearly stopped when the collision occurred, the SUV’s brake
lights were illuminated, and the defendant failed to brake until “just
before or at the time that he struck the SUV.” 40 The trooper didn’t cite
the defendant for speeding and conceded that he ”had no way of knowing
specifically [the defendant’s] actual pre-accident speed.” Even though the
trooper conceded he didn’t know the defendant’s speed, he testified that
he thought the defendant was driving significantly faster than the posted
speed limit of 40 miles per hour. 41
In reviewing the sufficiency of the evidence on speeding, the Court
of Criminal Appeals determined the evidence allowed the jury to infer
that the defendant had been speeding, but wasn’t sufficient to prove
criminal negligence because the evidence failed to show that the
39See Queeman, 520 S.W.3d at 619; compare Tex. Penal Code Ann.
§ 6.03(c), with id. § 6.03(d). 40Id. at 620. 41Id. at 621 & 621 n.3.
23 defendant “engaged in any more extreme, aggressive, or foolish driving
acts than are ordinarily engaged in by drivers and accepted as reasonable
risks in exchange for the social utility provided.” 42 Since the evidence
didn’t establish a basis on which the jury could infer the defendant was
driving at an excessive speed, the Queeman Court held that a rational
juror “could not conclude that [the defendant] was excessively speeding
because that would require speculation beyond what is shown by the
evidence or what could be rationally inferred from the evidence in the
record.” 43
Turning next to the evidence addressing the defendant’s
inattentiveness in failing to apply her brakes, the Queeman Court agreed
the evidence established the defendant had been inattentive but still
observed:
Driving is a common activity that has risks about which a reasonable person would be cognizant. Failure to appreciate those risks and the circumstances that create them can support ordinary negligence. Criminal negligence, however, requires a greater showing—that the risk is ‘substantial and unjustifiable’ and that the failure to perceive the circumstances creating the risk is a ‘gross deviation’ from the usual standard of care.” 44
42Id. at 631. 43Id. at 625. 44Id. at 630.
24 On the evidence in Queeman—a case that involved an “ought to be aware”
standard which we note is lower than the “aware of but consciously
disregards” standard at issue here—the Queeman Court concluded that
the proof of speed and failure to see the vehicle that was rear-ended failed
to show the defendant was guilty of criminal negligence. 45
Turning to Faulk’s case, the recklessness standard requires that
the evidence be viewed “from the actor’s standpoint.” 46 According to
Faulk, the evidence when viewed from her standpoint is insufficient to
show that she acted recklessly in failing to control her speed, in failing to
timely apply her brakes, or in failing to keep a proper lookout for other
traffic on FM 3247.
As to Faulk’s speed, the case is like Queeman in that the State’s
evidence doesn’t establish that Faulk was driving at an excessive rate of
speed. The evidence when viewed in the light most favorable to the jury’s
verdict establishes that Faulk was driving her car at 53 miles per hour
in a 50-miles per hour zone. Sam Watters, in a car three car lengths
45Id. at 631; compare Tex. Penal Code Ann. § 6.03(c) (culpable mental state for recklessness), with id. § 6.03(d) (culpable mental state for criminal negligence). 46Tex. Penal Code Ann. § 6.03(c).
25 behind Faulk, testified other cars were slowing for the garbage truck. But
Watters didn’t testify that Faulk was driving at an excessive speed. He
also didn’t testify about what side of the road the cars were on that he
saw slowing for the garbage truck. Clearly cars slowing for the truck
weren’t between Faulk’s car and the truck, or she would have hit them
before hitting the truck. Watters also didn’t distinguish between whether
he noticed the cars slowing before or after the collision occurred. Finally,
Watters never testified about how fast he was going before he saw Faulk
hit the truck.
We acknowledge that the record includes testimony that churches
and schools are located alongside FM 3247. Yet there isn’t any testimony
that the collision occurred in a school zone or that Faulk was cited for
speeding. In his opening statement, the prosecutor conceded that Faulk
“wasn’t speeding particularly fast.” There is also no testimony in the trial
that Faulk was weaving in and out of traffic or in a hurry to get to work.
The data from the black box revealed that Faulk’s speed was a few miles
above the speed limit when the collision occurred. None of this evidence
shows that Faulk was aware of but consciously disregarded a substantial
26 and unjustifiable risk that a garbage truck would stop in the traveled
portion of FM 3247.
As to Faulk’s failure to apply her brakes, the case is also like
Queeman in that the evidence is clearly sufficient to support the jury’s
finding that Faulk failed to timely apply her brakes. The data from the
black box revealed that Faulk never hit her brakes. That said, the fact
Faulk didn’t hit her brakes before colliding with the truck doesn’t show
that she was consciously aware of but disregarded a substantial and
unjustifiable risk that a garbage truck would stop on the traveled portion
of FM 3247.
Turning to Faulk’s failure to keep a proper lookout, the evidence
shows that Faulk failed to keep a proper lookout—she struck a large
truck without applying her brakes or taking evasive action to avoid a
collision. But the question is whether the State met its burden to prove
that Faulk was aware of but consciously disregarded a substantial and
unjustifiable risk of the garbage truck stopping on the traveled portion of
the road. Boiled down, the State’s theory was that the truck was in front
of her for fifteen seconds and she could have seen it and slowed down had
she kept her eyes on the road. But as we have discussed, the State didn’t
27 establish that the garbage truck was in the southbound lane for a full
fifteen seconds before the collision, and it didn’t establish that Faulk saw
the warning provided by the lights on the back of the truck before the
collision occurred.
As to Detective Ward’s experiment that shows him approaching a
garbage truck in the southbound lane, which was designed to
demonstrate that the truck is visible to southbound traffic at a distance
of two-hundred yards from where the collision occurred, we note that the
experiment was conducted under conditions that were different from
those confronted by Faulk. The garbage truck involved in the experiment
was always stationary and not moving like the garbage truck Faulk
approached on the day the collision occurred. And Detective Ward was
aware as he approached the garbage truck that it was stopped on FM
3247, an awareness that had he collided with the truck is an awareness
that would be probative to a jury’s finding of recklessness had the officer
with that knowledge collided with the truck.
We turn last to the State’s theory that Faulk was inattentive to her
driving tasks because she was putting on her makeup as she was
approaching the truck. If the jury believed Faulk was putting on her
28 makeup and that task distracted her attention from the road, that
evidence shows that Faulk misjudged how long she allowed her attention
to be diverted from her task of driving her car. The evidence doesn’t show
that Faulk was aware of but consciously disregarded a substantial and
unjustifiable risk when she diverted her attention from the road while
applying makeup even if she misjudged how long it might take her when
there is no evidence that shows Faulk had any reason to know or expect
that there was a substantial risk a truck with a worker might stop on the
road to allow a worker on the truck to perform work in the traveled
portion of a 50-miles-per-hour road. Stated another way, the fact that a
person misjudges how long a task might take when the task represents a
temporary diversion of the driver’s attention from the ordinary task of
driving is a risk about which reasonable persons are cognizant, and proof
that a person failed to appreciate that risk is a circumstance that will
support a claim for ordinary negligence. But proving a claim of criminal
negligence requires a greater showing that by the defendant’s acts, the
defendant assumed a substantial and unjustifiable risk. And proving a
claim of recklessness (which is what the State undertook to prove here)
requires even more still—proof of the defendant’s awareness of a
29 substantial and unjustifiable risk and proof of the defendant’s conscious
disregard. 47
When viewing the circumstances from Faulk’s standpoint, as we
must, we conclude the evidence doesn’t support a rational inference that
Faulk was aware of but consciously disregarded a substantial and
unjustifiable risk that she would rear-end a garbage truck on FM 3247,
a 50-miles-per-hour road. Moreover, the evidence the State presented did
prove beyond a reasonable doubt that Faulk diverted her attention from
the road for a full 15 seconds, which is what the State claimed is the
period that constitutes recklessness. Consequently—even though the
evidence establishes Faulk’s negligence in failing to control her speed,
failing to keep a proper lookout, and failing to brake and that her
negligence contributed to the collision—that evidence is insufficient to
support the inference that she was reckless. We sustain Faulk’s sole
issue.
47Compare Queeman, 520 S.W.3d at 630, with Tex. Penal Code Ann.
§ 6.03(c). 30 Conclusion
For the reasons explained above, we reverse the judgment
convicting Faulk of manslaughter and render a judgment of acquittal.
REVERSED AND RENDERED.
HOLLIS HORTON Justice
Submitted on August 1, 2023 Opinion Delivered March 6, 2024 Do Not Publish
Before Horton, Johnson and Wright, JJ.