NO

. PD

- 0481 -15

COURT OF CRIMINAL APPEALS OF TEXAS

RUBEN GARCES , Appellant

v. THE STATE OF TEXAS,
On Appeal from the 118 th 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 -7 007 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 CLERKTABLE OF CONTENTS Page
Table of Content s ........................................................................ .... 2 Table of Authorities

............................................................ .............. 3 Statement Regarding Oral A rgument.............................................

.......... 5 Statement of the Cas e ............................................. .................. ......... 5 Statement of Procedural Hi story ...............

........................... ... ............... 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 d istinction between civil and criminal negligence. Argument and Authoritie s........................... . ............... .... ...... . ............ .. 6 Prayer for R elief........................

........ .................................... .........1 9 Certificate of Compliance .................................................................. 20 Certificate of Service .........

.............................. ... ............ .... .......... ... 21 Appendix..........................................

........................... .... ............ 22

2TABLE 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
T exas Penal Code Section 19.05.................................

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

.................. .. .......... 9

3NO. PD

- 0481

- 1 5

COURT OF CRIMINAL APPEALS OF TEXAS

RUBEN GARCES , Appellant

v. THE STATE OF TEXAS,
On Appeal from the 118 th District Court of Glasscock Cou nty, 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 APPE ALS:
RUBEN GARCES , (hereinafter sometimes referred to as “ Appellant ,”) submits this Petition for Discretionary Review, and would respectfully show unto the Court the following:

4STATEMENT REGARDING ORAL ARGUMENT Oral argument is requested because this cas e 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 consti tutes 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

w as 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 T exas 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 , 20 1 5 , authored by the Honorable John Bailey ,
5the Court affirmed Appellant ’s conviction. (Apx. 1). GROUND S FOR REVIEW Issue One The Court of Appeals erred in holding the evidence against Appellant was legally sufficient , thereby effectively blurring the distinction between civi l 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.
Argum ent 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 ro le 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
6sufficient case of the offense cha rged. 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 i f 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 circumstan ces. 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 Appellan t'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.

7Conduct 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," t he 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 measur ed 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 punishmen t. 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 dea th or injury to another. Williams, 235 S.W.3d at 753.

8This 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 offe nse 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 pert inent part: (f) An operator who is required by this section to stop and yield the right

- of

way 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 give n 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 deci ding 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: 9The 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 convict s 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 trie r 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 t he 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:

10Trooper 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 intox icated. (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
t est 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 v ehicle 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

11admitted. (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 Exhi bit 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 s ize 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 w ould 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 ca me upon the accident scene. (RR5: 94). He expressed an opinion that the f ailure 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

12to come an hour’s distance from work, so they w ere 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 mile s 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 stop ped, 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 go ing “ten or 15 maybe.” (RR5: 27). He observed the

13truck 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 w as 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

14be 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, havi ng 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 betw een. 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).

15He 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 gre at 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

s aw 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 t ime 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 ti me Appellant pulled out. Further, although

16there 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 t he 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

comm itted 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 cred ibility, 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 app eals 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 defend ant’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 drivi ng her SUV on the access

17road 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;
Mon tgomery 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, Mont gomery was driving and talking on her cell phone and that appellant admitted using the cell phone had distracted her. Id. This Honorable Court has cite d 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 c an not 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 wou ld 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

18254

. 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 precede nt 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 intersect ion 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 res ults 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 Appella nt entered the intersection, he ought to have been aware that there 19was 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 per son 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/Ri ck 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 fo r Discretionary Review, according to the word count function of counsel for Appellant’s word

- processing software, contains 42 32 words, even in cluding caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of a uthorities, 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 27 th day of Ma y , 20 1 5 , a true and cor rect 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

21APPENDIX Opinion of the Texas Court of Appeals, Eleventh District, At Ea stland............ ...1

22Opinion filed March 26, 2015



### In The 

# Eleventh Court of Appeals

__________ No. 11
- 13
- 00085
- C R

__________ RUBEN MONTES GARCES , Appellant V. THE STATE OF TEXAS , Appellee
On Appeal from the 118 th 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 conviction s for two counts of criminally negligent homicide. Appellant caused a two

- vehicle collision that result ed 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 se rved concurrently. In his sole issue on appeal , Appellant challenges the sufficiency of the evidence to support his conviction s . We affirm.2 Background Facts Appellant , a truck driver from Chihuahua, Mexico , was visiting the United State s to test

- drive vehicles for an employer to purchase. O n July 3, 201 2 , 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 240 1 . 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 tr ucks, what you call here two water trucks. And next to them, there was a white pickup. There was enough d istance 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 ar ound 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 Appellant3 stipulated that the collision between Appellant’s tractor

- trailer and the pickup wa s the cause of death of McBride and Power. Alfons o 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 w hen [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 ; Quini ones 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 scen e. 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 throug h 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 a4 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 t o 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 stand ard 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 evi dence 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 t he speed of the victims’ pickup when Appellant committed to crossing the intersection or its distance from t he intersection at that time. Section 19.05(a) of the Texas Penal Code pr ovides that “[a] person commits an offense if he causes the death of an individual by criminal negligence.” T EX
. P ENAL C ODE A NN . § 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 o r the result will5 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 stan dpoint. Id. § 6.03(d). To make a legally sufficient showing of criminally negligent homicide, the S tat e 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 exer cised 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 al legedly negligent act occurred. Id. at 193. Criminal negligence does not require proof of the defendant ’ s subjective awarene ss of the risk of harm, but rather the defendant ’ s awareness of the attendant circumstan ces leading to such a risk. Id. The key to crimi nal negligence is not the defendant being aware of a substantial risk and disregarding it, but rather it is the failur e 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 u njustifiable,” 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 c onduct could result in the type of harm that did occur, and that this risk was of such a nature that6 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 wo rthy of a criminal punishment. Id. After rev iewing 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 pro ceed through the intersection. Appellant testified that he “ came to a full and complete stop” at the intersection. However, another witness testifi ed that he did not stop. Irrespective of this discrepancy, the critical decision made by Appe llant 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 th e intersection and that he saw the victims’ pickup approaching the intersection. Specifically, he testified that he sa w their pickup from “afar” at the intersection. Appellant obviously miscalculated the speed and7 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 substanti al 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 ro ad

. Appellant should have been aware of the seriousness of entering the intersection ahead of oncoming traffic that he observed. T he jury could have reasonably found that A ppellant ’ s failure to appreciate the substantial and unjustifiable risk, given the circumstances known to h im 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 s ufficient to support the jury’ s guilty verdict s of criminally negligent homicide. We overrule Appellant’s sole issue. This Court’s Ruling We affirm the judgment s of the trial court.

JOHN M. BAILEY JUSTICE March 26, 2015 Do not publish. See T EX
. R. A PP
. P. 47.2(b). Panel consists of: W right , C.J., Willson, J. , and Bailey, J.