In Montgomery v. State of texas, --- S.W.3d ----, 2011 WL 2150230 (Tex.App.-Hous. (14 Dist.)) the defendant was convicted of criminally negligent homicide after she made an unsafe lane change while using her cellphone. Her lane change occurred while another vehicle was sppeding behind her. By changing lanes, she was rear-ended and caused to hit another vehicle, which then resulted in the death of a passenger. in reversing the conviction, the court stated:
"In Texas, a person commits the offense of criminally negligent homicide if he or she (1) causes the death of an individual, (2) ought to have been aware that his or her conduct created a substantial and unjustifiable risk of death, and (3) failed to perceive the risk, which is of such a nature and degree that the failure constituted a gross deviation from the standard of care an ordinary person would have exercised under the circumstances. (citations omitted) Accordingly, in order to convict appellant of criminal negligence, the State was required to prove not merely that she did something a person of ordinary prudence would not have done, but that her failure to perceive that a substantial risk of death would result from her conduct grossly deviated from an ordinary standard of care."
In discussing the application of the law to the facts here, the court stated:
"As this court observed in Tello v. State, when courts in Texas have addressed the level of evidence necessary to convict a defendant of criminally negligent homicide resulting from vehicle-related accidents, “speeding, racing, and intoxication often are contributing factors.” (citation omitted) None of these factors is present in the present case."
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At trial in the present case, the State presented evidence of appellant's use of a cell phone while driving, her unsafe lane change, and her failure to maintain a proper lookout. Only one of the three factors was a moving violation under Texas law: making an unsafe lane change.FN5 However, the State placed primary emphasis on a factor that was not even listed in the indictment as proof of appellant's negligence: cell phone usage.FN6 The State analogized using a cell phone while driving to driving while intoxicated, a moving violation subject to substantial criminal penalties. See Tex. Penal Code §§ 49.04, 49.09. However, in doing so, the State could be seen as “legislating through prosecution,” and, by continuing that emphasis in this appeal, the State encourages this court to legislate through judicial fiat. FN7 Except under very limited circumstances not at issue in this case, using a cell phone while driving is not an illegal activity in Texas."
Concluding that the general public lacks knowledge about the dangers of cell phone driving, the court in reversing the convictions stated as follows:
"We do not minimize the fact that Chance Wilcox tragically died in this accident. But Texas law makes clear that the circumstances for assessing criminally negligent homicide are judged from the defendant's perspective at the time of his or her actions, not from hindsight. * * * Supported by additional scientific research and increased public awareness, Texans may one day determine that cell phone usage while operating a vehicle is morally blameworthy conduct that justifies criminal sanctions; however, the State failed to establish that such was the case in March 2008, at the time of this accident."
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