Case Number: 09-16-00395-CR

Judge: Steve McKeithen

Court: Court of Appeals Ninth District of Texas at Beaumont

Plaintiff's Attorney: Wayln G. Thompson
Angela Mann Kneeland

Defendant's Attorney: Dustin Ryan Galmor

Description: A grand jury indicted Lawson for manslaughter, a second-degree felony. The
indictment alleged that Lawson recklessly caused the death of Mitchell Glenn
Downs “by operating a motor vehicle on a public road while failing to maintain a
proper lookout and by failing to remain within the marked lane of travel of the said
public road, thereby causing the said motor vehicle to strike [Downs.]” On the first
day of trial, Lawson filed a motion to exclude evidence of his alcohol usage, in which
he argued that evidence of his alcohol consumption should be excluded as irrelevant
because the State did not plead alcohol consumption as one of the acts of
recklessness that he allegedly committed.
In his motion, Lawson stated that he anticipated that the State may attempt to
offer evidence, in the form of receipts and eyewitness testimony, showing that he
purchased and drank alcohol on the day the offense occurred. Lawson maintained
that the indictment generally met the requirements of article 21.15 of the Texas Code
of Criminal Procedure by alleging the specific conduct that the State believed was
reckless, but the State did not allege alcohol consumption as part of Lawson’s
alleged recklessness. According to Lawson, the State is required by statute to plead
reckless acts with specificity, and because the State failed to plead alcohol
consumption, the State cannot introduce evidence of his alcohol consumption.



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Lawson further argued that the evidence should be excluded as being unfairly
prejudicial.
Prior to trial, the trial court considered Lawson’s motion without hearing
witness testimony. The State explained that it intended to present testimony from
three witnesses who were drinking with Lawson before the accident. The State
represented that it also expected that Lawson’s statement, in which Lawson admitted
to drinking alcohol prior to the accident, would come into evidence, as well as text
messages that Lawson sent to one of the witnesses. Lawson’s counsel objected to
the admission of evidence of Lawson’s use of alcohol because the State is required
by statute to specify the nature of the recklessness, and the State failed to specifically
plead alcohol as a factor. According to Lawson’s counsel, evidence of Lawson’s
alcohol use was not relevant and could not be “linked up” because the State did not
plan to offer expert testimony concerning the impact or the effects of Lawson’s
alcohol use. Lawson’s counsel further argued that the evidence was unfairly
prejudicial.
The State maintained that it had alleged failure to keep a proper lookout and
failure to maintain a single lane, and that the jury could reasonably infer that
consuming alcohol would contribute to that reckless behavior. According to the
State, it was not going to present any evidence concerning Lawson’s level of



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intoxication; rather, it was presenting evidence concerning Lawson’s alcohol
consumption prior to the accident, including Lawson’s admission of drinking
alcohol and leaving the scene because he was scared, and that such evidence would
help the jury decide whether Lawson’s actions were reckless.
The trial court denied Lawson’s motion to exclude evidence, finding that
evidence of Lawson’s alcohol consumption was a relevant fact issue and that its
prejudicial effect did not outweigh its probative value, and the case proceeded to
trial. During trial, Michael Hicks and Dallas Austin testified that on the day the
accident occurred they drank margaritas with Lawson after work. According to
Austin, they all drank as many fifty cent margaritas as the restaurant would sell them,
which was four. Austin explained that the margaritas were “pretty weak” and he did
not think that he or Lawson was impaired after drinking them. Austin testified that
when Lawson picked him up for work the next morning, he noticed that the front
passenger side door of Lawson’s truck was jammed shut, and Lawson told Austin
that he “hit a deer or dog or something.” Austin testified that Lawson later admitted
to hitting the victim and that Lawson explained that he did not see anybody and that
he was either picking up his cell phone from the passenger seat or texting when the
accident occurred. Austin testified that Lawson told him that he felt and heard that



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his truck had hit something, but that he did not stop because he was scared because
he had been drinking.
Callie Dover testified that on December 5, 2012, she saw Lawson at a
restaurant, and that Lawson contacted her the next day and stated that he had told
the police that he had hit a deer and had been with Dover. According to Dover,
Lawson asked her to tell the police that he was with her at her apartment on the night
of December 5. Dover testified that she had only seen Lawson casually at the
restaurant and she figured “something kind of odd was up” for him to tell the police
that he had been with her. Dover explained that she showed the police the text
messages that Lawson had sent her, in which he told her that he had hit a deer and
responded “yeah[,]” when Dover asked if he had drunk too much.
Sergeant Eric Wilson testified that on December 6, 2012, he was called out to
a pedestrian fatality on Highway 69 North. Wilson explained that security cameras
from a local business located on the feeder road had captured the incident, and after
reviewing the video, the police established that a dark colored truck struck the
victim. After putting out a Crime Stoppers Report asking the community to assist in
the investigation, the police received information pointing to Lawson. Wilson
testified that Lawson initially reported that he struck a deer, but Lawson later
admitted to striking Downs. Wilson testified that Lawson gave a statement in which



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he admitted to drinking with friends prior to the incident and to reaching for his
phone to respond to a text message immediately prior to the crash. Wilson explained
that Lawson reported that when he turned his head to look for his phone, his truck
drifted to the right shoulder of the roadway, and Lawson stated that he heard a thump
and thought he had hit the bridge railing. Wilson testified that Lawson stated that he
did not stop or call the police because he thought he had hit the bridge railing and
because he had been drinking and was scared that he would get in trouble.
According to Wilson, Lawson caused the collision that resulted in Downs’s
death because Lawson failed to maintain a proper lookout and left his marked lane
of travel. Wilson testified that it was reckless and a gross deviation from safe driving
for Lawson to have consumed alcohol for several hours prior to driving and to have
looked away and checked his phone while driving, and that those actions led to
Lawson leaving his lane and failing to keep a proper lookout.
A jury found Lawson not guilty of manslaughter, but found Lawson guilty of
the lesser-included offense of negligent homicide. The jury assessed Lawson’s
punishment at two years in state jail and a $10,000 fine.
ANALYSIS
In one issue on appeal, Lawson complains that the trial court erred by
admitting evidence of his alcohol use prior to the alleged offense because the State



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failed to plead the use of alcohol in the indictment. According to Lawson, he was
harmed by the admission of the evidence because the State relied on the evidence of
his use of alcohol as the primary basis for his conviction. Lawson contends that the
trial court, in violation of article 21.15 of the Texas Code of Criminal Procedure,
allowed the State to prove criminal negligence by using evidence of his alcohol use
as the specific fact to support his conviction. See Tex. Code Crim. Proc. Ann. art.
21.15 (West 2009). He also contends that this violated his right to adequate notice
under the Texas Constitution. See Tex. Const. art. I, § 10.
The State argues that evidence of Lawson’s alcohol use is admissible despite
the State not having alleged alcohol use in the indictment. The State argues that it
properly alleged two specific acts of recklessness to establish the requisite mental
state and it is not required to allege every fact that could have contributed to
Lawson’s mental state. According to the State, article 21.15 does not require the
State to allege every factor that could potentially have contributed to a defendant’s
reckless or criminally negligent conduct. The State maintains that the trial court
properly admitted evidence of Lawson’s consumption of alcohol as being a relevant
factor the jury could consider.
We review a trial court’s decision to admit evidence, as well as its decision as
to whether the probative value of the evidence was substantially outweighed by the



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danger of unfair prejudice, under an abuse of discretion standard. Martinez v. State,
327 S.W.3d 727, 736 (Tex. Crim. App. 2010). We must give the trial court wide
latitude to exclude or admit evidence under Rule 403. Montgomery v. State, 810
S.W.2d 372, 390 (Tex. Crim. App. 1991) (op. on reh’g); see also Tex. R. Evid. 403.
A trial court abuses its discretion when its decision on the admissibility of evidence
falls outside the zone of reasonable disagreement. Johnson v. State, 490 S.W.3d 895,
908 (Tex. Crim. App. 2016).
Relevant evidence includes evidence having any tendency to make a fact more
or less probable than it would be without the evidence. Tex. R. Evid. 401(a).
Evidence that is not relevant is inadmissible. Tex. R. Evid. 402. Relevancy is decided
by asking whether a reasonable person with some experience in the world would
believe that the particular piece of evidence is helpful in determining the truth or
falsity of any fact that is of consequence in the action. Montgomery, 810 S.W.2d at
376; see Tex. R. Evid. 401(b). The evidence does not have to prove or disprove a
particular fact to be relevant; rather, “it is sufficient if the evidence provides a small
nudge toward proving or disproving some fact of consequence.” Stewart v. State,
129 S.W.3d 93, 96 (Tex. Crim. App. 2004). Relevant evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair prejudice.
Tex. R. Evid. 403.



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Rule 403 favors the admission of relevant evidence and presumes that relevant
evidence will be more probative than prejudicial. Shuffield v. State, 189 S.W.3d 782,
787 (Tex. Crim. App. 2006). Rule 403 balancing factors include, but are not limited
to, the following: (1) the probative value of the evidence; (2) the potential to impress
the jury in some irrational yet indelible way; (3) the time needed to develop the
evidence; and (4) the proponent’s need for the evidence. Hernandez v. State, 390
S.W.3d 310, 324 (Tex. Crim. App. 2012). Once a party objects and the trial court
rules on a Rule 403 objection, we presume the trial court engaged in the required
balancing test unless the record indicates otherwise. Williams v. State, 958 S.W.2d
186, 195-96 (Tex. Crim. App. 1997). The opponent of the evidence has the burden
to show that the negative attributes of the evidence substantially outweigh any
probative value. Montgomery, 810 S.W.2d at 377.
Article 21.15 provides:
Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the … indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence.

Tex. Code Crim. Proc. Ann. art. 21.15. The indictment charged Lawson with
causing Downs’s death by striking him with a motor vehicle and alleged that this



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was done in a reckless manner due to Lawson failing to maintain a proper lookout
and failing to remain within the marked lane of travel of a public road. The
indictment alleged with reasonable certainty the acts relied upon to constitute
recklessness, and thus provided Lawson with sufficient notice of the nature of his
alleged recklessness. See Goodrich v. State, 156 S.W.3d 141, 145 (Tex. App.—
Dallas 2005, pet. ref’d); Stewart v. State, 70 S.W.3d 309, 314 (Tex. App.—Waco
2002, pet. ref’d); see also Tex. Const. art. I, § 10.
A person acts recklessly with respect to the result of his conduct when he is
aware of, but consciously disregards, a substantial and unjustifiable risk that the
result will occur. Tex. Penal Code. Ann. § 6.03(c) (West 2011). “The risk must be
of such a nature and degree that its disregard constitutes a gross deviation from the
standard of care that an ordinary person would exercise under all the circumstances
as viewed from the actor’s standpoint.” Id. Generally, proof of a culpable mental
state relies on circumstantial evidence, and in determining recklessness, a trier of
fact’s conclusion can be drawn through inferences from all of the circumstances.
Lopez v. State, 630 S.W.2d 936, 942 (Tex. Crim. App. 1982). A culpable mental
state may be inferred from the defendant’s acts, words, and conduct. See Gant v.
State, 278 S.W.3d 836, 839 (Tex. App.—Houston [14th Dist.] 2009, no pet.).



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The gross deviation from the standard of care argued by the State in this case
was not Lawson’s alcohol consumption, but rather that Lawson failed to maintain a
proper lookout and failed to remain within the marked lane of travel of the public
road. In his statement, Lawson admitted that he consumed alcohol prior to the
accident, was searching for his cell phone when the accident occurred, and did not
stop because he had been drinking. Even though not alleged in the indictment,
evidence of Lawson’s alcohol consumption may be considered as a factor in
determining whether Lawson grossly deviated from the standard of care.
Montgomery v. State, 369 S.W.3d 188, 194-95 (Tex. Crim. App. 2012) (stating that
although cell phone use had not been alleged in the indictment for criminally
negligent homicide, the jury could consider the defendant’s cell phone use as a factor
in determining whether the defendant grossly deviated from the standard of care).
Thus, the jury could consider whether Lawson’s alcohol use interfered with his
ability to maintain a proper lookout and to remain within the marked lane of travel
of the public road. See id.
Because the evidence of Lawson’s alcohol use was a relevant factor the jury
could consider, we conclude that the trial court did not abuse its discretion by
admitting the evidence. See Martinez, 327 S.W.3d at 736; see also Tex. R. Evid.
401(a). We further conclude that Lawson has failed to demonstrate that the danger



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of unfair prejudice substantially outweighed the probative value of the evidence. See
Montgomery, 810 S.W.2d at 377; see also Tex. R. Evid. 403.

Outcome: We overrule Lawson’s sole issue and affirm the trial court’s judgment.

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