NO. PD-0481-15 

 

COURT OF CRIMINAL APPEALS OF TEXAS

RUBEN GARCES, Appellant

 

v.

THE STATE OF TEXAS, 

On Appeal from the 118th District Court

of Glasscock County, Texas

Cause No. 432 (Hon. D. Timothy Yeats)

and 

NO. 11-13-00085-CR

from 

THE COURT OF APPEALS FOR THE ELEVENTH JUDICIAL DISTRICT

EASTLAND, TEXAS 

PETITION FOR DISCRETIONARY REVIEW 

__________________________________________________________________

 

 FREDERICK T. DUNBAR

 rick@galbreathlawfirm.com

State Bar #24025336

4542 Loop 322, Suite 102

Abilene, Texas 79602 

Ph: (325) 437-7000

Fax: (325) 437-7007

 ATTORNEY FOR APPELLANT 

 

PD-0481-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 5/28/2015 12:00:24 AM

Accepted 5/28/2015 3:59:07 PM

ABEL ACOSTA

CLERK
TABLE OF CONTENTS

Page

Table of Contents ............................................................................2

Table of Authorities ..........................................................................3

Statement Regarding Oral Argument.......................................................5

Statement of the Case ........................................................................5

Statement of Procedural History ............................................................5

Ground for Review ...........................................................................6

Issue One

The Court of Appeals erred in holding the evidence against Appellant was 

legally sufficient, thereby effectively blurring the distinction between civil and 

criminal negligence.

Argument and Authorities....................................................................6

Prayer for Relief.............................................................................19

Certificate of Compliance ..................................................................20

Certificate of Service .......................................................................21

Appendix.....................................................................................22

2
TABLE OF AUTHORITIES

Cases Page

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)..................6,7,10

Johnson v. State, 23 S.W.3d 1, 15 (Tex. Crim. App. 2000).............................9

Montgomery v. State, 369 S.W.3d 188, 192-3 (Tex. Crim. App. 2012)........7,17-8

People v. Boutin, 75 N.Y.2d 692, 556 N.Y.S.2d 1, 555 N.E.2d 253 (1990)...18-19

Tello v. State, 180 S.W.3d 150 (Tex. Crim. App. 2005)........................7-17-19

Tello v. State, 138 S.W.3d 487, 493 (Tex.App.-Houston [14th Dist.] 2004), aff'd, 

180 S.W.3d 150..............................................................................17

Williams v. State ,235 S.W.3d 742, 750, 753-754 (Tex.Crim.App.2007)...........7-8

Statutes

Texas Penal Code Section 6.03.........................................................10

Texas Penal Code Section 19.05............................................................9

Tex. Transportation Code Section 545.151................................................9

3
NO. PD-0481-15

COURT OF CRIMINAL APPEALS OF TEXAS

RUBEN GARCES, Appellant

v.

THE STATE OF TEXAS,

On Appeal from the 118th District Court

of Glasscock County, Texas

Cause No. 432 (Hon. D. Timothy Yeats)

and 

NO. 11-13-00085-CR

from 

THE COURT OF APPEALS FOR THE ELEVENTH JUDICIAL DISTRICT

EASTLAND, TEXAS

PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

RUBEN GARCES, (hereinafter sometimes referred to as “Appellant,”) 

submits this Petition for Discretionary Review, and would respectfully show unto 

the Court the following:

4
STATEMENT REGARDING ORAL ARGUMENT

Oral argument is requested because this case involves vital issues of State 

and Constitutional law, namely the right of an accused to have his guilt proven 

beyond a reasonable doubt. Beyond that, the Court of Appeals’ decision, if allowed 

to stand, would alter established law regarding what constitutes legally sufficient 

evidence in a case of criminally negligent homicide, blurring the vital distinction 

between civil negligence and criminal negligence as observed by this court in Tello 

v. State, 180 S.W.3d 150 (Tex. Crim. App. 2005)and like cases. It is therefore 

important that the court of Criminal Appeals correct this error.

STATEMENT OF THE CASE

Appellant was charged by indictment in two counts with the criminally 

negligent homicide of Bryan McBride and Jacob Lee Powers. (CR: 7). The offense 

was alleged to have been committed on July 3, 2012. (CR: 7). On January 16, 

2013, the jury found the Appellant guilty on both counts. (RR5: 153). Punishment, 

assessed by the Court on February 8, 2013, was two hundred and ten (210) days 

confinement in the Texas Department of Criminal Justice- State Jail Division and 

no fine. (RR6: 9-10).

STATEMENT OF PROCEDURAL HISTORY

 Appellant appealed to the Eleventh Court of Appeals at Eastland, Texas. In 

an opinion released on March 26, 2015, authored by the Honorable John Bailey, 

5
the Court affirmed Appellant’s conviction. (Apx. 1).

GROUNDS FOR REVIEW

Issue One

The Court of Appeals erred in holding the evidence against Appellant was 

legally sufficient, thereby effectively blurring the distinction between civil and 

criminal negligence.

ARGUMENT AND AUTHORITIES

Issue One Restated

The Court of Appeals erred in holding the evidence against Appellant was 

legally sufficient, thereby effectively blurring the distinction between civil and 

criminal negligence.

Argument and authorities for Issue One

When reviewing the sufficiency of the evidence, an appellate court views the 

evidence in the light most favorable to the verdict to determine whether " any 

rational trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt." Brooks v. State, 323 S.W.3d 893, 902 n. 19 

(Tex.Crim.App.2010). The jury is the sole judge of the credibility of witnesses and 

the weight to be given to their testimonies, and the reviewing court must not usurp 

this role by substituting its own judgment for that of the jury. Id. at 899.

The duty of the reviewing court is simply to ensure that the evidence 

presented supports the jury's verdict and that the state has presented a legally 

6
sufficient case of the offense charged. Williams v. State ,235 S.W.3d 742, 750, 

753-754 (Tex.Crim.App.2007). When the reviewing court is faced with a record 

supporting contradicting inferences, the court must presume that the jury resolved 

any such conflicts in favor of the verdict, even if not explicitly stated in the record.

Brooks, 323 S.W.3d at 900 n. 13.

To make a legally sufficient showing of criminally negligent homicide, the 

state must prove that (1) Appellant's conduct caused the death of an individual; (2) 

Appellant ought to have been aware that there was a substantial and unjustifiable 

risk of death from his conduct; and (3) Appellant's failure to perceive the risk 

constituted a gross deviation from the standard of care an ordinary person would 

have exercised under like circumstances. Montgomery v. State, 369 S.W.3d 188, 

192-3 (Tex. Crim. App. 2012).

The circumstances are viewed from the standpoint of the actor at the time 

that the allegedly negligent act occurred. Id., at 193. Criminal negligence does not 

require proof of Appellant's subjective awareness of the risk of harm, but rather 

Appellant's awareness of the attendant circumstances leading to such a risk. 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. Id.

7
 Conduct that constitutes criminal negligence involves a greater risk of harm 

to others, without any compensating social utility, than does simple negligence. 

The carelessness required for criminal negligence is significantly higher than that 

for civil negligence; the seriousness of the negligence would be known by any 

reasonable person sharing the community's sense of right and wrong. Id. The risk 

must be " substantial and unjustifiable," the failure to perceive it must be a " gross 

deviation" from reasonable care as judged by general societal standards. " With 

criminal negligence, the defendant ought to have been aware of a substantial and 

unjustifiable risk that his 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." Id.

The degree of deviation from reasonable care " is measured solely by the 

degree of negligence, not any element of actual awareness." In finding a defendant 

criminally negligent, a jury is determining that the defendant's failure to perceive 

the associated risk is so great as to be worthy of a criminal punishment. Id.

Whether a defendant's conduct involves "an extreme degree of risk" must be 

determined by the conduct itself and not by the resultant harm. Nor can criminal 

liability be predicated on every careless act merely because its carelessness results 

in death or injury to another. Williams, 235 S.W.3d at 753. 

8
This is especially apparent when one contrasts the criminal negligence 

statute with the failure to yield statute.

Texas Penal Code Section 19.05 reads, in pertinent part:

(a) A person commits an offense if he causes the death of an individual by 

criminal negligence.

(b) An offense under this section is a state jail felony.

Contrast this with the failure to yield the right of way statute, Texas 

Transportation Code Section 545.151, which reads, in pertinent part:

(f) An operator who is required by this section to stop and yield the right-ofway at an intersection to another vehicle and who is involved in a collision or 

interferes with other traffic at the intersection to whom right-of-way is to be given 

is presumed not to have yielded the right-of-way.

Thus, the mere fact that a wreck occurred notably creates no presumption of 

criminal homicide, as opposed to the right of way statute, which does indulge a 

presumption in the event of a collision.

In deciding the sufficiency of the evidence in this case it is important to 

remember the Court of Criminal Appeals approved of the hypothetical from the 

dissenting opinion of Presiding Judge McCormick from Johnson v. State, 23 

S.W.3d 1, 15 (Tex. Crim. App. 2000), in which the following hypothetical was 

outlined regarding a store robbery:

9
The store clerk at trial identifies A as the robber. A properly authenticated 

surveillance videotape of the event clearly shows that B committed the 

robbery. But, the jury convicts A. It was within the jury's prerogative to 

believe the convenience store clerk and disregard the video. But based on all

the evidence the jury's finding of guilt is not a rational finding.

Brooks, 323 S.W.3d at 307.

From the foregoing authorities we can derive two things regarding legal 

sufficiency. First, the sufficiency standard does not allow the Court to weigh 

evidence and substitute its judgment for that of the jury. However, legal 

sufficiency, as made clear by the hypothetical from Brooks, is not a no-evidence 

standard, as it effectively is in the civil context. Although this Court cannot decide 

the relevant weight of evidence it must consider the exculpatory evidence and the 

weaknesses of the inculpatory evidence in deciding whether a rational trier of fact 

could conclude the State’s high burden has been met. 

Texas Penal Code Section 6.03 dictates, in pertinent part:

(d) 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. 

The facts germane to legal sufficiency in this case are as follows:

10
Trooper Kenneth Dean Reed, Jr. testified. (RR4: 148). He arrived at the 

scene around 6:30, about an hour after getting the call. (RR4: 154). They do a field 

diagram, paint markings on the pavement, take pictures, and take statements. 

(RR4: 158).

They spoke with the semi occupants and identified Appellant as the driver. 

(RR4: 160-1). Deputy Aguilar helped him converse with Appellant. (RR4: 162). 

Appellant admitted to be the driver. (RR4: 163). Reed determined that Appellant 

had the proper licensing credentials. (RR4: 163). It was determined Appellant was 

not intoxicated. (RR4: 165). 

Appellant told him he stopped, saw the truck, and pulled out. (RR4: 165-6). 

The witnesses were not all consistent in what the semi had done. (RR4: 166). 

Appellant told him he was in the process of purchasing this vehicle and was on a 

test drive. (RR4: 167). He had stopped at the stop sign, saw the truck, and pulled 

out. (RR4: 167). Appellant stated he was sorry. (RR4: 168). He had travelled 159 

miles in the truck from Odessa. (RR4: 169). He inventoried the vehicle and did a 

commercial vehicle inspection. (RR4: 170-1). There was a stipulation that the 

deceased individuals were the victims alleged in the indictment, and that the crash 

was the cause of their deaths, in exchange for photographs of the deceased not 

being admitted. (RR4: 175). Exhibits 4-13, photos of the crash, were numbered and 

11
admitted. (RR4: 176-7). Reed described the depictions in the photographs. (RR4: 

178-185). He clarified he was just an accident investigator, not a reconstructionist. 

(RR4: 175). The State admitted Exhibit 14, the scale diagram, without objection. 

(RR4: 187). The Trooper discussed the v-mark made by the truck as the forces 

impacted it. (RR4: 191-2). 

The truck was headed west and the pickup was headed north. (RR4: 192). 

He described that because of the size of the marks on the pavement and because of 

the displacement of the pickup twenty feet that the semi must have been going at 

least five miles per hour when the impact occurred. (RR4: 192-5). He conceded, 

however, he could not definitively say how fast the semi was going. (RR4: 195). 

He indicated the disparity in weight between the vehicles made it impossible to 

determine the momentum of either. (RR4: 196). 

Visibility was good for someone at the subject stop sign. (RR4: 199). There 

was no weather that would have impacted visibility. (RR4: 199).

The “black box” recording from the decedents’ vehicle was admitted into 

evidence. (RR5: 5-6). James Gomez next testified. . (RR5: 93). He came upon the 

accident scene. (RR5: 94).

He expressed an opinion that the failure of the tractor to yield the right of 

way caused the collision. (RR4: 199-200). He was unable to estimate the speed of 

the pickup prior to impact. (RR4: 200). He did note that it took them about an hour 

12
to come an hour’s distance from work, so they were within the speed limit on 

average for the trip home. (RR4: 200-202).

Trooper Reed testified that witness Ronald Davis said he did not stop at the 

stop sign. (RR4: 207).

Trooper Reed testified the speed limit on 1357 was 70 miles per hour. (RR5: 

8).

He indicated the difference in perceiving a vehicle coming between 70 miles 

per hour and 80 is 22 feet per second. (RR5: 9). It makes little change in perception 

in observing a vehicle coming. (RR4: 10).

Trooper Reed testified 70 miles per hour versus 80 miles per hour would not 

have made a difference in whether or not the collision occurred. (RR5: 13). 

Alfonso Quinones next testified. (RR5: 14). He tagged along on Appellant’s test 

drive in the subject semi. (RR5: 19-20). They only stopped at stop signs. (RR5:

22). He did not perceive any braking problems. (RR5: 22). He had been in the front 

seat about 20 to 25 minutes prior to the collision. (RR5: 24). Ruben asked for 

directions from him at the intersection. (RR5: 24). He wasn’t 100 percent sure 

Appellant stopped, but he slowed dramatically. (RR5: 26). Appellant mentioned 

something about not making it, and Quinones felt him accelerate to try and make 

it. (RR5: 26-7). It appeared to Quinones initially that they might make it. (RR5: 26-

7). At impact, they were going “ten or 15 maybe.” (RR5: 27). He observed the 

13
truck had wedged under the trailer just past the tractor. (RR5: 27). He was inclined 

to believe Appellant did stop, but was not sure as he was not the driver. (RR5: 32). 

He knew Appellant didn't roll right past it. (RR5: 32). He affirmed he was inclined 

to believe they were going to make it. (RR5: 32-3). He estimated that when he first 

saw the truck it was probably 100 yards away. (RR5: 33). The truck was coming 

up fast. (RR5: 33). He expected when exiting the vehicle that the collision would 

have been at the very back of the trailer. (RR5: 34).

Appellant next testified. (RR5: 41). He was in the Unites States to test drive 

vehicles. (RR5: 44).He has been a truck driver longer than 20 years. (RR5: 44). He 

has an international license that allows him to drive 18 and 32 wheelers. (RR5: 44-

5). He had his regular truck driver’s license over 20 years and the international 

license 8 years since the Free Trade Agreement came into place. (RR5: 45). The 

subject truck was at Gato Trucking in Odessa. (RR5: 46). When testing trailers, 

they need to be run 3 or 4 hours to see if they maintain their water and oil levels. 

(RR5: 47). They left Odessa going south, picking up various roads. (RR5: 49). He 

is not familiar with the area. (RR5: 49). The truck functioned well. (RR5: 50). The 

water and oil levels needed to be checked when he got back. (RR5: 50). He arrived 

at the subject stop sign. (RR5: 51). He looked to his right and to his left. (RR5: 51). 

There were two water trucks and a pickup truck. (RR5: 51). 

There was adequate time for him to cross. (RR5:51). He testified one has to 

14
be able to have a field vision of 90 degrees before one ever turns one’s head. 

(RR5:51). When he glanced, he saw the white pickup coming fast, having passed 

the water trucks. (RR5:51). He explained that when looking in that direction, it is 

difficult to estimate the speed of the other vehicle. (RR5:52). Generally, one 

estimates by the distance or the length or the amount of field that it is in between. 

But when one is looking straight or when you are looking to the side, it is very 

difficult to calculate the speed. (RR5:52). He deduced its high speed from how 

quickly it covered the distance and the impact. (RR5:52). He was able to see the 

decedents’ faces when they were 100 meters away. (RR5:52). The passenger 

appeared to asleep. (RR5:53). 

The driver was not taking any evasive action and was inattentive. (RR5:53). 

He had time to swerve. (RR5:53). This was Appellant’s first time at this 

intersection. (RR5:53). Appellant. identified a photograph as depicting the scene 

which was admitted as Defense Exhibit 1 (RR5:54-5). Another photograph of the 

scene was admitted as Defense Exhibit 2. (RR5:56). There was a substantial open 

space where the pickup could have taken evasive action. (RR5:58). He has no other 

accidents or even a ticket. (RR5:60). He testified there was nothing he could do to 

avoid the accident. (RR5:70). He indicated that he was going five miles per hour at 

the time of the collision. (RR5:74). He denied having dragged the pickup. 

(RR5:74-5).

15
He indicated on cross-examination that he had been driving since he was 14 

or 15. (RR5: 77-78). He conceded commercial drivers require more training than 

regular drivers because they drive vehicles of great weight and force. (RR5:78).

He conceded he was familiar with the concept of driving defensively. 

(RR5:82). He conceded defensive driving means being on the lookout for what 

other drivers may do. (RR5:82). He testified he stopped, looked both ways, and 

saw the pickup from afar. (RR5:83). He conceded the truck had the right of way. 

(RR5:85). He didn’t know how fast the truck was going, but it was fast. (RR5:85). 

When he got a look at the occupants of the truck they were a little bit behind him . 

(RR5:86).

Here, both Appellant and a neutral eyewitness both testify it appeared they 

would make it when Appellant pulled out. Trooper Reed was unable to give the 

jury speeds, nor is there any evidence of what distance the victims’ vehicle was 

from the intersection when Appellant committed to the intersection. Logically, to 

properly analyze whether or not it was an unjustifiable risk to enter an intersection, 

the jury must be favored with the speed of the vehicle on the dominant road, as 

well as its distance at the time the accused committed to the intersection. 

Admittedly, State’s Exhibit 16 establishes some evidence that the victims’ vehicle 

was going 80 miles per hour 2.5 seconds prior to the subject collision, but does not 

tell us what speed it was going at the time Appellant pulled out. Further, although 

16
there were aerial depictions of the scene in question, and testimony that visibility 

was good, there were remarkably no photographs that depict what Appellant’s 

perspective would have been looking down 1357 from the intersection.

In summary, the State has effectively asserted that Appellant’s committing 

himself to the intersection when he did meets the objective criteria of recklessness 

when they cannot describe the speed of the victim’s vehicle at the time he 

committed nor its distance from the intersection at the time he committed. Contrast 

this with uncontroverted testimony by Appellant and an eyewitness that it appeared 

they would make it. Although an appellate court is not authorized to determine 

weight or credibility, it must consider all the evidence in deciding what a rational 

fact finder could find at the highest burden of proof. The State has simply not met 

its burden. The Court of Appeals erred in holding otherwise.

Appellant would note that a court of appeals has observed that in vehicular 

criminally negligent homicide cases speeding, racing, and intoxication often are 

contributing factors. Tello v. State, 138 S.W.3d 487, 493 (Tex.App.-Houston [14th 

Dist.] 2004), aff'd, 180 S.W.3d 150. In Tello, the defendant’s conviction was 

affirmed when a deplorably poorly attached trailer came off while Tello was 

driving and caused a fatal accident.

In Montgomery v. State, 369 S.W.3d 188, 194 (Tex. Crim. App. 2012),the 

state presented evidence that: Montgomery was driving her SUV on the access 

17
road of IH-45; the speed limit was 50 miles per hour; Montgomery was driving 

more slowly than surrounding traffic; Montgomery was up to 92 feet past the 

beginning of the entrance ramp onto IH-45 when she abruptly changed lanes; 

Montgomery did not signal the lane change or look for other vehicles approaching 

in the left lane; and Montgomery intended to enter IH-45 via the entrance ramp 

that she had already passed. The state also presented evidence that, just before the 

accident, Montgomery was driving and talking on her cell phone and that appellant 

admitted using the cell phone had distracted her. Id.

This Honorable Court has cited the New York Court of Appeals' decision in 

People v. Boutin, 75 N.Y.2d 692, 556 N.Y.S.2d 1, 555 N.E.2d 253 (1990), to 

illustrate when there is insufficient evidence to support a finding of criminal 

negligence.

This Honorable Court approving quoted the following from Boutin:

Our decisions construing these provisions have emphasized that criminal 

liability cannot be predicated on every act of carelessness resulting in death, that 

the carelessness required for criminal negligence is appreciably more serious than 

that for ordinary civil negligence, and that the carelessness must be such that its 

seriousness would be apparent to anyone who shares the community's general 

sense of right and wrong [citations omitted]. What, we believe, is abundantly clear 

from our decisions and from the governing statutory language is that criminally 

negligent homicide requires not only a failure to perceive a risk of death, but also 

some serious blameworthiness in the conduct that caused it. The risk involved must 

have been "substantial and unjustifiable", and the failure to perceive that risk must 

have been a "gross deviation" from reasonable care. 

Tello, 180 S.W.3d at 157-8, quoting Boutin, 556 N.Y.S.2d 1, 555 N.E.2d at 

18
254.

This Court further observed:

Applying this standard, the Court in Boutin decided that a driver's 

unexplained failure to see a parked car until he collided with it and 

killed two people did not by itself support a conviction for criminally 

negligent homicide. See Boutin, 556 N.Y.S.2d 1, 555 N.E.2d at 253, 256 

(evidence established only that "defendant inexplicably failed to see the 

vehicle until he was so close that he could not prevent the collision. Though 

it resulted in two tragic deaths, that unexplained failure, without more, does 

not constitute criminally negligent homicide"). 

Tello, 180 S.W.3d at 158. 

In our instant case, unlike the precedent cited above, there simply is not 

anything that distinguishes Appellant Garces’ conduct from civil negligence, and 

the Court of Appeals erred in holding otherwise. The Court of Appeals effectively 

has held that pulling a tractor-trailer into an intersection with a fast road when a 

vehicle is coming amounts to sufficient evidence of criminal negligence, without 

adequate evidence of speed or proximity. (Appendix 1). This effectively creates a 

very real danger of acts of mere civil negligence with tragic results resulting in 

culpability for homicide. This must be corrected.

PRAYER FOR RELIEF

The evidence was legally insufficient to establish Appellant’s guilt. The 

State did not give the jury nearly enough information to rationally conclude that

when Appellant entered the intersection, he ought to have been aware that there 

19
was a substantial and unjustifiable risk of death from his conduct, or that 

Appellant's failure to perceive the risk constituted a gross deviation from the 

standard of care an ordinary person would have exercised under like 

circumstances. For the Court of Appeals to hold that this level of evidence is 

legally sufficient would expose Texans to criminal exposure upon mere proof of 

civil negligence. Such an error must be corrected.

/s/Rick Dunbar_____________

FREDERICK T. DUNBAR

rick@galbreathlawfirm.com

State Bar #24025336

4542 Loop 322, Suite 102

Abilene, Texas 79602 

Ph: (325) 437-7000

Fax: (325) 437-7007

CERTIFICATE OF COMPLIANCE

 Appellant’s Petition for Discretionary Review, according to the word count 

function of counsel for Appellant’s word-processing software, contains 4232

words, even including caption, identity of parties and counsel, statement regarding 

oral argument, table of contents, index of authorities, statement of the case, 

statement of issues presented, statement of jurisdiction, statement of procedural 

history, signature, proof of service, certification, certificate of compliance, and the 

appendix, save for the attached Exhibit 1 . As this is within the limits established 

excluding these items, Appellant respectfully certifies compliance.

20
/s/Rick Dunbar_______________

 Rick Dunbar

CERTIFICATE OF SERVICE

I hereby certify that on this 27th day of May, 2015, a true and correct copy 

of the above and foregoing was forwarded to the Glasscock County District 

Attorney and the State Prosecuting Attorney in a manner consistent with the 

requirements of the law.

/s/Rick Dunbar_____________

Rick Dunbar

21
 APPENDIX

Opinion of the Texas Court of Appeals, Eleventh District, At Eastland...............1

22
Opinion filed March 26, 2015

In The

Eleventh Court of Appeals __________

No. 11-13-00085-CR

__________

RUBEN MONTES GARCES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 118th District Court

Glasscock County, Texas

Trial Court Cause No. 432

M E M O R A N D U M O P I N I O N

Ruben Montes Garces appeals his jury convictions for two counts of 

criminally negligent homicide. Appellant caused a two-vehicle collision that 

resulted in the death of both the driver and the passenger of the other vehicle. The

trial court assessed Appellant’s punishment on each count at confinement for a

term of 210 days in the State Jail Division of the Texas Department of Criminal 

Justice, with the sentences to be served concurrently. In his sole issue on appeal, 

Appellant challenges the sufficiency of the evidence to support his convictions. 

We affirm.
2

Background Facts

Appellant, a truck driver from Chihuahua, Mexico, was visiting the United 

States to test-drive vehicles for an employer to purchase. On July 3, 2012,

Appellant was test-driving a tractor-trailer. Appellant picked up the tractor-trailer 

in Odessa and headed south. At approximately 5:30 p.m., Appellant was headed 

back toward Odessa on Farm Road 2401. Appellant came to the intersection of 

Farm Road 2401 and Farm Road 1357 in Glasscock County. Farm Road 2401 runs 

east to west, while Farm Road 1357 runs north to south. Farm Road 2401 has a 

stop sign, while Farm Road 1357 does not. Accordingly, Farm Road 1357 has the 

right-of-way for traffic. Appellant was traveling westbound on Farm Road 2401, 

while the pickup driven by Bryan Gregory McBride was traveling northbound on 

Farm Road 1357. Jacob Lee Power was the passenger in the pickup.

Appellant testified that he saw two water trucks and a white pickup on the 

road to his left when he approached the intersection. Appellant testified as 

follows:

We got to the stop sign. I looked to my right and I looked to my left. 

The -- far away, there were two trucks, what you call here two water 

trucks. And next to them, there was a white pickup. There was 

enough distance for me to allow me to cross. It was a matter of 

seconds. It was really quick. . . .

. . . So when I -- when I was crossing, I turned around and I 

saw and I glanced, and I turned around and I saw that it was the white 

pickup coming. And I was trying to think to myself if I have enough 

time to cross. And I couldn’t figure out why the pickup was so close 

because the two of the water trucks were still quite behind it.

Appellant testified that, near the time of impact, he was able to see two 

young men in the pickup from roughly 100 meters away. The pickup hit the bed of 

the trailer near the front two axles, and the cab of the pickup was crushed. Both 

McBride and Power were pronounced dead at the scene. The State and Appellant 
3

stipulated that the collision between Appellant’s tractor-trailer and the pickup was 

the cause of death of McBride and Power.

Alfonso Quiniones, a passenger in the tractor-trailer, testified that he was not 

“100 percent sure if [Appellant] did make the stop. . . . [B]ut I do recall him 

slowing down drastically.” Quiniones then said that the tractor-trailer took off and 

then “that’s when [Appellant] notices that he’s not going to make it. He mentions 

something. That’s when I noticed the truck, where he looked. I see the truck. I 

see the truck coming.” Quiniones testified that Appellant tried to cross the 

intersection faster; Quiniones could feel the tractor-trailer accelerating. After the 

pickup hit the tractor-trailer, Quiniones called 911.

Trooper Kenneth Dean Reed Jr. with the Texas Highway Patrol testified that 

he conducted an accident investigation when he arrived on the scene. Trooper 

Reed testified that, in his opinion, “the cause of this accident was that semi truck 

failed to yield the right-of-way.” Trooper Reed said that Appellant “failed to yield 

right-of-way of the stop sign and pulled out in front of the vehicle and was struck.” 

Trooper Reed testified that a witness at the scene gave him a statement that said:

[I] saw a semi truck go through the intersection westbound on 2401, 

saw a cloud of dirt in the air, and the truck looked to have problems. I 

drove up into the intersection and saw a white pickup hit the semi 

truck in the rear of the truck. The truck -- semi truck ran the stop sign.

Analysis

We review a challenge to the sufficiency of the evidence under the standard 

of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 

323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–

89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review 

all of the evidence in the light most favorable to the verdict and determine whether 

any rational trier of fact could have found the elements of the offense beyond a 
4

reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 

(Tex. Crim. App. 2010). We consider all the evidence admitted at trial, including 

pieces of evidence that may have been improperly admitted. Winfrey v. State, 393 

S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 

(Tex. Crim. App. 2007). In conducting a sufficiency review, we defer to the 

factfinder’s role as the sole judge of the witnesses’ credibility and the weight their 

testimony is to be afforded. Brooks, 323 S.W.3d at 899. “This standard accounts 

for the factfinder’s duty ‘to resolve conflicts in the testimony, to weigh the 

evidence, and to draw reasonable inferences from basic facts to ultimate facts.’”

Clayton, 235 S.W.3d at 778 (quoting Jackson, 443 U.S. at 319). When the record 

supports conflicting inferences, we presume that the factfinder resolved the 

conflicts in favor of the prosecution and defer to that determination. Jackson, 443 

U.S. at 326; Clayton, 235 S.W.3d at 778.

Appellant argues that the evidence is insufficient to support his conviction 

because his conduct did not carry “a substantial and unjustifiable risk of death.” 

He focuses his argument on the purported lack of evidence of the information 

available to Appellant at the time he entered the intersection. Specifically, he 

contends that there is no evidence of the speed of the victims’ pickup when 

Appellant committed to crossing the intersection or its distance from the 

intersection at that time.

Section 19.05(a) of the Texas Penal Code provides that “[a] person commits 

an offense if he causes the death of an individual by criminal negligence.” TEX.

PENAL CODE ANN. § 19.05(a) (West 2011). Section 6.03(d) of the Texas Penal 

Code defines the culpable mental state of 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 
5

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). To make a legally sufficient showing of criminally negligent 

homicide, the State must prove that (1) the defendant’s conduct caused the death of 

an individual, (2) the defendant ought to have been aware that there was a 

substantial and unjustifiable risk of death from his or her conduct, and (3) the 

defendant’s failure to perceive the risk constituted a gross deviation from the 

standard of care an ordinary person would have exercised under like 

circumstances. Montgomery v. State, 369 S.W.3d 188, 192–93 (Tex. Crim. App.

2012). We view the circumstances from the standpoint of the actor at the time that 

the allegedly negligent act occurred. Id. at 193. Criminal negligence does not 

require proof of the defendant’s subjective awareness of the risk of harm, but 

rather the defendant’s awareness of the attendant circumstances leading to such a 

risk. Id. The key to criminal negligence is not the defendant being aware of a 

substantial risk and disregarding it, but rather it is the failure of the defendant to 

perceive the risk at all. Id.

“Conduct that constitutes criminal negligence involves a greater risk of harm 

to others, without any compensating social utility, than does simple negligence.”

Id. Criminal negligence requires a significantly higher degree of carelessness than 

civil negligence; any reasonable person sharing the community’s sense of right and 

wrong would know the seriousness of the negligence. Id. The risk must be 

“substantial and unjustifiable,” and the failure to perceive it must be a “gross 

deviation” from reasonable care as judged by general societal standards. Id.

With criminal negligence, the defendant ought to have been aware of 

a substantial and unjustifiable risk that his conduct could result in the 

type of harm that did occur, and that this risk was of such a nature that 
6

the failure to perceive it was a gross deviation from the reasonable 

standard of care exercised by ordinary people.

Id. (quoting Williams v. State, 235 S.W.3d 742, 750–51 (Tex. Crim. App. 2007))

(internal quotation marks omitted). “The degree of deviation from reasonable care 

‘is measured solely by the degree of negligence, not any element of actual 

awareness.’” Id. (quoting Tello v. State, 180 S.W.3d 150, 158 (Tex. Crim. App. 

2005) (Cochran, J., concurring)). When a jury finds a defendant criminally 

negligent, it determines that the defendant’s failure to perceive the associated risk 

is so great as to be worthy of a criminal punishment. Id.

After reviewing the record, we conclude that the State has met its burden of 

proving all the elements of criminally negligent homicide. Appellant correctly 

identifies the relevant time for our inquiry as the time that the allegedly negligent 

act occurred. Id. The indictment alleged that Appellant caused the death of the 

decedents “by operating a tractor-trailer and disregarding a stop sign, and failing to 

yield the right of way.” The application paragraphs of the jury charge also 

contained this allegation. Accordingly, we direct our analysis to the facts in 

existence at the time Appellant made the decision to proceed through the 

intersection.

Appellant testified that he “came to a full and complete stop” at the 

intersection. However, another witness testified that he did not stop. Irrespective 

of this discrepancy, the critical decision made by Appellant was his decision to 

proceed through the intersection at the time that he did rather than waiting until all 

oncoming traffic cleared the intersection. Appellant testified that he looked both 

ways prior to entering the intersection and that he saw the victims’ pickup 

approaching the intersection. Specifically, he testified that he saw their pickup

from “afar” at the intersection. Appellant obviously miscalculated the speed and 
7

distance of the victims’ pickup because he was unable to clear the intersection 

prior to the victims’ pickup striking his tractor-trailer.

The evidence is sufficient to show that Appellant should have been aware of 

the substantial and unjustifiable risk created by his conduct. Appellant was driving 

a large tractor-trailer. He entered the intersection after observing oncoming traffic 

traveling at a high rate of speed, including observing the victims’ pickup from 

“afar.” The posted speed limit for cross traffic at the intersection was seventy 

miles per hour. Entering an intersection in a large tractor-trailer when there is 

oncoming traffic traveling at a high rate of speed poses a great risk to the other 

drivers on the road. Appellant should have been aware of the seriousness of 

entering the intersection ahead of oncoming traffic that he observed. The jury 

could have reasonably found that Appellant’s failure to appreciate the substantial 

and unjustifiable risk, given the circumstances known to him at that time, was a 

gross deviation from the standard of care that an ordinary person would exercise 

under the same circumstances. See id. at 194. Accordingly, the evidence was 

legally sufficient to support the jury’s guilty verdicts of criminally negligent 

homicide. We overrule Appellant’s sole issue. 

This Court’s Ruling

We affirm the judgments of the trial court. 

JOHN M. BAILEY 

JUSTICE

March 26, 2015

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.