Valyn Rose Faulk v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00028-CR
__________________

VALYN ROSE FAULK, Appellant

V.

THE STATE OF TEXAS, Appellee
__________________________________________________________________

On Appeal from the 128th District Court
Orange County, Texas
Trial Cause No. A200085-R
__________________________________________________________________

MEMORANDUM OPINION

The issue in this appeal is whether the evidence supports Valyn

Rose Faulk’s conviction for manslaughter under an indictment alleging

that she recklessly caused the death of Derrick Cane Jr. by “operating a

motor vehicle and failing to control the speed of the said motor vehicle

and by failing to keep an adequate lookout for other traffic on the

1
roadway and by failing to apply the brakes in a timely manner.” 1 Under

Texas law, a person acts recklessly when the person “is aware of but

consciously disregards a substantial and unjustifiable risk that the

circumstances exist or the result will occur.” 2 On appeal, Faulk argues

that the evidence is insufficient to support her conviction because the

evidence doesn’t establish that she was driving her car recklessly when

she struck Cane, who had stepped behind a garbage truck that had

stopped on the traveled portion of Farm to Market Road 3247 (FM 3247

or MLK Drive) as he was performing his job collecting garbage cans left

beside the road. The collision occurred around four and one-half seconds

after the garbage truck stopped.

At trial, the State’s theory of the case was that Faulk acted

recklessly by failing to keep a proper lookout for a period of 15 seconds as

she approached the truck, by failing to apply her brakes before hitting

the truck, and by driving her car at a speed of 53 miles per hour in a

residential area, a road that runs by a church and school. The posted

speed limit in the area where the collision occurred is 50 miles per hour.

1See Tex. Penal Code Ann. § 19.04(a).
2Id. § 6.03(c).

2
In closing argument, Faulk’s attorney argued that the State failed to

prove that Faulk had acted recklessly because the evidence didn’t show

Faulk had been driving at an excessive rate of speed, and he attributed

the fact that she didn’t see the garbage truck to a problem with glare from

the sun and poor markings on the back of the truck, yellow hazard lights

that were the same color as the glare from the sun.

On appeal, a video-recoding from inside the cab of the truck shows

the garbage truck had stopped for just under five seconds when Faulk’s

car rear-ended the truck. But the evidence admitted in the trial doesn’t

show where the garbage truck turned onto FM 3247 or whether the

garbage truck had been in the southbound lane of FM 3247 for a full

fifteen seconds before the collision occurred. The evidence also doesn’t

show how fast the garbage truck was traveling on FM 3247 before it

began to slow down in preparing for the stop, whether the driver of the

truck signaled to traffic behind the truck that the truck would be slowing

to stop, or whether the hazard warning signals on the back of the truck

came on automatically when the truck slowed below a given speed. The

jury heard no evidence that Faulk knew that garbage trucks or trucks on

FM 3247 customarily stopped in the area where the collision occurred

3
while men on the truck performed work in the traveled portion of the

road or that signs in the area warned drivers to be prepared to stop

because drivers should expect that individuals could be working from

trucks that were stopped in the traveled portion of the road.

On this record, we conclude the evidence is insufficient to establish

that Faulk was aware of but consciously disregarded a substantial and

unjustifiable risk that someone would be working in the road or that a

truck would be stopped so that an employee on the truck could perform

work in the traveled portion of the road. Accordingly, we reverse the trial

court’s judgment and render a judgment of acquittal.

Background

Viewed in the light most favorable to the verdict, the evidence in

Faulk’s trial shows that on November 26, 2018, Faulk rear-ended a

Waste Management garbage truck while both vehicles were in the

southbound lane on MLK Drive, a two-lane roadway with a turning lane

in the middle and an improved shoulder. 3 As mentioned, a videotape from

inside the garbage truck shows the truck had been stopped for four and

3Jackson v. Virginia, 443 U.S. 307, 319 (1979); Queeman v. State,

520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
4
one-half seconds before Faulk struck it with her car. The speed limit in

the area where the collision occurred is 50 miles per hour. Additionally,

the speed limit changes from 55 to 50 about 200 yards north of the

location where Faulk rear-ended the truck.

Derrick Cane Jr., a Waste Management employee working on the

back of the garbage truck, was fatally injured in the collision. Fifteen

months after the collision occurred, the State indicted Faulk, charging

her with manslaughter. 4 The indictment alleges that Faulk recklessly

caused Cane’s death based on the way she operated her car, specifically

by failing to control her speed, failing to keep an adequate lookout for

other traffic on the roadway, and failing to timely apply her brakes before

the collision occurred. 5

The parties tried the case to a jury in December 2021. The State’s

theory in the trial was that the garbage truck was on FM 3247 in front of

Faulk for fifteen seconds and that during that period Faulk was applying

her makeup rather than keeping a proper lookout for traffic in front of

4Tex. Penal Code Ann. § 19.04(a).
5The indictment also alleged that Faulk caused Cane’s death by

operating her vehicle while intoxicated or under the influence of a
controlled substance or drug. The State dropped those claims before the
trial occurred.
5
her. According to the State, it was reckless for Faulk not to have watched

the road for that fifteen seconds because during those fifteen seconds she

could have seen the garbage truck, slowed down, and stopped her car.

Adrienne Fontenot, who was also employed by Waste Management,

was driving the garbage truck when the collision occurred. At trial,

Fontenot testified that she felt the effect of a collision but didn’t see

Faulk’s car when it approached her truck. The State also called Sam

Watters Jr., who testified he was driving “three cars back” from Faulk

and saw the collision occur. Watters neither testified to the speed at

which he was driving his car, nor did he provide the jury with an estimate

of the speed of Faulk’s car. According to Watters, he could see there was

a garbage truck, he saw “[e]veryone was slowing down,” but he never saw

Faulk’s car slow down. Watters explained that after witnessing what he

described as “a very violent collision[,]” he “proceeded to slow down, exit

[his] vehicle, and [he] call[ed] 911.”

Following the collision, several officers from the Orange Police

Department responded to the scene. Detective Isaac Henry III, the officer

in charge of investigating the wreck, testified that he spoke with Faulk

while she was still at the scene. Detective Henry explained that he

6
observed Faulk’s demeanor and in the report that he prepared of his

investigation, Detective Henry noted that he didn’t notice that Faulk

exhibited any signs of intoxication. Detective Henry explained that he

examined Faulk’s car, and he testified that in her car he saw an open bag

with makeup in it and there were also open bottles of makeup loose in

her car. Henry also said that he noticed the presence of dark marks on

the airbag of Faulk’s car, which Henry said he thought were smudges of

makeup. Detective Henry noted that the sun visor on the driver’s side of

Faulk’s car “was pulled down,” and the slide to the visor, which allows

the mirror in the visor to show, was open. Detective Henry testified that

he believed that a dark substance on the car’s driver’s side airbag was

mascara. Yet Detective Henry conceded he wasn’t certain the substance

on the airbag was mascara because it was never tested.

Detective Henry testified that with Faulk’s permission, he

examined Faulk’s cell phone and determined that when the collision

occurred, she wasn’t texting or using her phone. The detective added that

Faulk left the scene and went to the hospital, where she was treated for

a concussion. When Detective Henry went to the hospital to speak to

Faulk, he first spoke to her mother, who told him that Faulk had suffered

7
two prior concussions when she was in high school. Detective Henry then

spoke to Faulk in a room in which the lights had been dimmed. Faulk

told the detective she had a headache and nausea. According to Detective

Henry, when he asked her about the wreck, she told him that “she just

remembered getting her keys and leaving the house.” She also told him

she was headed to work that day, and she said she worked at a restaurant

in Orange, which she named.

On cross-examination, Detective Henry agreed that the fact he saw

bottles of makeup strewn about in the car could be consistent with having

an open bag of makeup in the car when the car was involved in a collision.

He also agreed that a person who is wearing lipstick or mascara may

transfer the makeup they are wearing to the airbag when the airbag is

deployed.

The State called Dean Nance to testify about the data he obtained

from the control unit in Faulk’s car (the black box). Nance testified that

he is trained in the science of reconstructing accidents. After explaining

how he obtained the right to access the black box in Faulk’s car, Nance

testified that the data he extracted from Faulk’s car shows that she was

traveling at an average speed of 53 miles per hour in the five seconds

8
before rear-ending the truck. Nance also explained that the data he

extracted from the black box shows that Faulk never applied her brakes

before hitting the truck. On cross-examination, Nance agreed he was

never asked by the State to reconstruct the accident. Nance also agreed

that given the posted speed limit in the area of the wreck, Faulk wasn’t

driving at a high rate of speed.

To establish that the garbage truck was visible for fifteen seconds

to a driver that was in the southbound lane of FM 3247, the State relied

on the testimony of Detective Stephen Ward, an employee of the Orange

Police Department. Detective Ward based his testimony on an

experiment that he performed the day after the collision. In the

experiment, which was videotaped by a camera in the detective’s car,

Detective Ward assumed the garbage truck was stopped in the

southbound lane of FM 3247 in the same location where Faulk struck the

truck. Ward then approached the truck in the southbound lane, and

based on the videotape, which was admitted into evidence, Detective

Ward testified the garbage truck is visible as it is being approached in

the southbound land at a distance of two-hundred yards.

9
Officer Michael Roush, a City of Orange patrolman, was the first

police officer to arrive after he was notified by police dispatcher of the

wreck. According to Officer Roush, he knew from the damage to the

vehicle and from the injuries that he saw that he would need more

officers to come to the scene to assist him with investigating the wreck.

He checked on Faulk, who was sitting in her car, and she gave him her

name but told him she couldn’t locate her driver’s license. Officer Roush

obtained Cane’s name from the emergency responders who were treating

Cane at the scene.

Officer Roush testified that he then began photographing the

evidence at the scene. The photos he took were admitted into evidence as

Exhibits 6-23. One of the photos shows that Cane was wearing a

fluorescent green vest. A photo of the driver’s seat of Faulk’s car, Exhibit

20, shows what Officer Roush described as an open bottle of mascara on

the driver’s seat of Faulk’s car. A picture of the sun visor in Faulk’s car

shows that the cover to the mirror, which works as a slide built into the

visor, is open. The photo shows that some areas of the sun visor are

darker than others. Officer Roush described these darker areas as

“smudges of makeup found near the mirror of [Faulk’s] . . . vehicle.”

10
Officer Roush also testified that when he arrived on the scene, the

truck’s “yellow flashing lights on the back end [were] operating[.]” Officer

Roush added that to his knowledge, the truck’s yellow flashing lights

continued to flash while the police were investigating the crash at the

scene. On cross-examination, Officer Roush agreed that as to the

smudges and makeup in the photos, he didn’t have any idea how long the

substances on those areas had been present, how the smudges got there,

or what the material deposited on the sun visor and airbag were.

Faulk rested after her attorney moved for a directed verdict. When

Faulk moved for a directed verdict, her attorney argued the State failed

to present sufficient evidence to allow a rational jury to conclude that

Faulk had acted recklessly in causing the wreck that resulted in Cane’s

death. The trial court denied Faulk’s motion. In closing argument, the

prosecutor argued that although nothing is certain, Faulk was “probably

putting on her makeup[,]” but that it didn’t really matter exactly what

she was doing because Faulk “consciously disregarded” her duty to keep

an adequate lookout “by taking her eyes off the road[.]” According to the

prosecutor, her conduct was reckless because she was driving “55 miles

per hour down a street with homes, a church, a school” when for “[f]ifteen

11
seconds before she killed [Cane] she could see that truck.” The prosecutor

summed it up by arguing it was a gross deviation from the standard of

care for Faulk to have failed to keep her eyes on the road for “such a long

period of time.”

The jury found Faulk guilty of manslaughter. Following the

punishment phase of the trial, the jury assessed a five-year sentence with

no fine, and the jury recommended that Faulk’s sentence be suspended.

The trial court signed a judgment consistent with the jury’s verdict,

suspended Faulk’s sentence, and placed Faulk on community supervision

for ten years. After the trial court signed the judgment, Faulk filed a

timely notice of appeal.

Standard of Review

In one issue, Faulk argues the trial court erred in denying her

motion for a directed verdict because the evidence is insufficient to show

that she acted recklessly—the mens rea attached to proving

manslaughter. 6 On appeal, we treat a point of error challenging the trial

6 Id. § 6.03(c); id. § 19.04(a).

12
court’s denial of a motion for directed verdict as a challenge to the

sufficiency of the evidence. 7

We review the sufficiency of the evidence to support a conviction

under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319

(1979). 8 Under that standard, we view the evidence in the light most

favorable to the verdict and determine, based on that evidence and any

reasonable inferences therefrom, whether any rational factfinder could

have found the essential elements of the offense beyond a reasonable

doubt. 9 “The jury is the sole judge of credibility and weight to be attached

to the testimony of witnesses.” 10 In this role, the jury may choose to

believe all, some, or none of the testimony presented by the parties.11

Further, the jury is permitted to draw multiple reasonable inferences

from facts as long as each is supported by the evidence presented at

trial. 12 When the record supports conflicting inferences, we presume that

7See Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App. 2003);

Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996).
8See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).
9Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing

Jackson, 443 U.S. at 318-19).
10Id.
11Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
12Temple, 390 S.W.3d at 360.

13
the jury resolved those conflicts in favor of the verdict and therefore defer

to that determination. 13

In reviewing the sufficiency of the evidence, we consider all the

evidence in the record, regardless of whether it was properly admitted.14

Direct and circumstantial evidence are equally probative of an actor’s

guilt, and “‘circumstantial evidence alone can be sufficient to establish

guilt.’” 15 In a circumstantial evidence case, each fact need not point

directly and independently to the guilt of the defendant so long as the

combined and cumulative force of all the incriminating circumstances

warrants the conclusion that the defendant is guilty. 16 “After giving

proper deference to the factfinder’s role, we will uphold the verdict unless

a rational factfinder must have had reasonable doubt as to any essential

element.” 17

Every criminal conviction must be supported by legally sufficient

evidence as to each element of the offense that the State must prove

13Id.
14Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
15Temple, 390 S.W.3d at 359 (quoting Hooper v. State, 214 S.W.3d

9, 13 (Tex. Crim. App. 2007)).
16Id. (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.

App. 1993)); Hooper, 214 S.W.3d at 13.
17Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009).

14
beyond reasonable doubt. 18 To decide if this standard has been met, we

review the evidence in the light most favorable to the verdict and decide

whether a rational trier of fact could have found the essential elements

of the crime under the required standard of beyond reasonable doubt.19

Evidence in a trial may be circumstantial or direct, and we allow juries

to draw multiple reasonable inferences from the evidence with which

they are presented in a trial. 20 “Each fact need not point directly and

independently to a defendant’s guilt, as long as the cumulative force of

all the incriminating circumstances is sufficient to support the

conviction.” 21

“When considering a claim of evidentiary insufficiency, a reviewing

court does not sit as the thirteenth juror and may not substitute its

judgment for that of the factfinder by reevaluating the weight and

credibility of the evidence.” 22 “The jury is the sole judge of credibility and

weight to be attached to the testimony of witnesses.” 23 “If the record

18See Jackson, 443 U.S. at 315-16; Brooks, 323 S.W.3d at 917.
19Id.
20Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).
21Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016).
22Garcia v. State, 667 S.W.3d 756, 762 (Tex. Crim. App. 2023).
23Temple, 390 S.W.3d at 360.

15
supports conflicting inferences, the reviewing court must presume that

[the jury] resolved the conflicts in favor of the prosecution and defer to

the jury’s factual determinations. In other words, when there are two

reasonable interpretations of the evidence, [the jury’s] choice between

them cannot be clearly erroneous.” 24

A legally sufficient showing of manslaughter requires proof that (1)

the defendant’s conduct caused the death of an individual; (2) the

defendant created a substantial and unjustifiable risk of death from their

conduct; (3) the risk was of such a magnitude that disregarding it

constituted a gross deviation from the standard of care an ordinary

person would have exercised under like circumstances; and (4) the

defendant was consciously aware of the risk of death from their conduct,

but consciously disregarded the risk. 25 The circumstances must be viewed

from the standpoint of the actor when the allegedly reckless act occurred,

without viewing the matter in hindsight. 26

“[M]ere lack of foresight, stupidity, irresponsibility,

thoughtlessness, ordinary carelessness, however serious the

24Garcia, 667 S.W.3d at 762 (cleaned up).
25Williams v. State, 235 S.W.3d 742, 755-56 (Tex. Crim. App. 2007).
26Id. at 753.

16
consequences may happen to be, do not suffice to constitute either

culpable negligence or criminal recklessness.” 27 Criminal liability arises

when “some serious blameworthiness” attaches to the conduct that

caused a “substantial and unjustifiable” risk of death. 28 Unlike criminally

reckless conduct, “[c]ivil or ‘simple’ negligence means the failure to use

ordinary care, that is, failing to do that which a person of ordinary

prudence would have done under the same or similar circumstances or

doing that which a person of ordinary prudence would not have done

under the same or similar circumstances.” 29 “With criminal negligence,

the defendant ought to have been aware of a substantial and unjustifiable

risk that [their] conduct could result in the type of harm that did occur,

and that this risk was of such a nature that the failure to perceive it was

a gross deviation from the reasonable standard of care exercised by

ordinary people.” 30 “The key to criminal negligence is not the actor’s being

aware of a substantial risk and disregarding it, but rather it is the failure

of the actor to perceive the risk at all.” 31

27Id. at 751. (cleaned up).
28Tello v. State, 180 S.W.3d 150, 157-58 (Tex. Crim. App. 2005).
29Queeman, 520 S.W.3d at 623.
30Williams, 235 S.W.3d at 750-51.
31Montgomery v. State, 369 S.W.3d 188, 193 (Tex. Crim. App. 2012).

17
On the other hand, “the heart of reckless conduct is conscious

disregard of the risk created by the actor’s conduct.” 32 Criminal

“[r]ecklessness requires the defendant to actually foresee the risk

involved and to consciously decide to ignore it.” 33 “Criminal recklessness

must not be confused with (or blended into) criminal negligence, a lesser

culpable mental state.” 34 “Criminal negligence depends upon a morally

blameworthy failure to appreciate a substantial and unjustifiable risk

while recklessness depends upon a more serious moral

blameworthiness—the actual disregard of a known substantial and

unjustifiable risk.” 35

Generally, whether a defendant’s conduct constitutes criminal

negligence or recklessness must be inferred from the surrounding

circumstances. 36 We recognize that jurors may draw reasonable

inferences from evidence admitted in a trial, yet jurors may not draw

conclusions from inferences that are based on speculation or when the

32Williams, 235 S.W.3d at 752.
33Id. (emphasis added).
34Id. at 750.
35Id. at 751 (emphasis added).
36Romano v. State, 610 S.W.3d 30, 35 (Tex. Crim. App. 2020).

18
inference the jury makes is unsupported by the evidence. 37 The Court of

Criminal Appeals distinguished between a jury’s making a reasonable

inference and speculating, explaining:

Speculation is mere theorizing or guessing about the possible
meaning of facts and evidence presented. While a conclusion
reached by speculation may not be completely unreasonable,
and it might even prove to be true, it is not sufficiently based
on facts or evidence to support a finding beyond a reasonable
doubt. 38

Analysis

The parties to the appeal disagree whether the evidence when

viewed in the light most favorable to the jury’s verdict and from Faulk’s

standpoint—the standpoint of a driver on a road with a posted speed limit

of 50 miles per hour—proves beyond reasonable doubt that Faulk was

aware of but chose to consciously disregard a substantial and

unjustifiable risk that a garbage truck would stop on the traveled portion

of the road. On this record, we conclude the State failed to present

sufficient evidence to allow the jury to infer that Faulk was aware of but

consciously disregarded a substantial and unjustifiable risk under the

circumstances when viewed from her standpoint.

37Metcalf v. State, 597 S.W.3d 847, 859 (Tex. Crim. App. 2020).
38Id. (cleaned up).

19
We reach that conclusion for these four reasons. First, the jury

didn’t hear any testimony about how garbage trucks usually pick up

trash cans left alongside FM 3247. For that reason, there isn’t any

evidence in the record that shows that drivers on FM 3247 who are

familiar with the road and the usual driving conditions on that roadway

would have been aware of the way garbage trucks normally use the

traveled portion of FM 3247 to pick up trash. There is no testimony in

the record about whether garbage trucks using this road typically pull

over on the shoulder before stopping to pick up trash. There is also no

evidence in the record that shows that Faulk was aware trucks would be

stopping in the road. And there is no evidence that there were signs

warning drivers that they should be prepared to stop because trucks

would be stopping because men on the truck would be working in the

traveled portion of the road.

Second, there isn’t any testimony in the record that shows the

warning that a driver approaching the garbage truck from the rear would

normally receive that the garbage truck was preparing to stop so that

men on the truck could perform work while standing in the road. To be

clear, the jury could infer from the evidence that the lights on the back of

20
the truck were working after the collision and that the flashing lights on

the back of the truck were flashing for 4 and one-half seconds after the

truck stopped. Yet there isn’t any evidence that Faulk saw them after

they began flashing. And the fact lights began flashing after the truck

stopped doesn’t show what warning, if any, a car approaching from the

rear of the truck would have had as the truck was slowing down to stop.

When the truck’s driver testified, she didn’t testify how the lights

on the back of her truck work. She also didn’t explain whether she

engaged the lights before or after she stopped the truck. For that reason,

its speculative as to whether an approaching driver would have had

flashing lights as a warning that they were approaching a slow-moving

truck for a period of 8 to 9 seconds before the truck stopped.

Third, the prosecutor never questioned the garbage truck’s driver

about when she first started driving the truck in the traveled portion of

FM 3247 in the fifteen-second window in which the prosecutor theorized

that the truck was in Faulk’s line of sight. The video from inside the cab

shows the truck moving for about four to five seconds before it stops, and

the video also shows the truck stopped in the southbound lane of FM 3247

for about 4 and one-half seconds before the collision occurs. There isn’t

21
any testimony in the trial that shows how fast the truck was traveling

when it was moving, but it’s clear that the truck is moving for less than

five seconds, and it is not moving and stopped for 15 seconds before the

collision occurred. Thus, while the truck would have been visible from

two-hundred yards away, it’s speculative as to whether, during that full

15 seconds, the truck was in the southbound lane and when the

defendant would have realized it was in her lane had she been keeping a

proper lookout for it as she approached it from behind.

Fourth, based on this record, we conclude that Queeman v. State

provides the guiding principles that we must follow to resolve whether

the evidence before us is sufficient to rationally support the jury’s

inference that Faulk’s conduct was reckless. To begin, we note that

Queeman involved a rear-end collision case in which the Court of

Criminal Appeals found the evidence insufficient to support the jury’s

finding convicting the defendant of criminally negligent homicide, a mens

rea that requires less knowledge (ought to be aware) than the mens rea

necessary to prove recklessness, an offense that requires the State to

prove the defendant’s actual awareness of the circumstances of their

22
conduct and a conscious disregard of a substantial and unjustifiable

risk. 39

At trial, the State trooper who investigated the collision in

Queeman determined that the SUV the defendant rear-ended was

stopped or nearly stopped when the collision occurred, the SUV’s brake

lights were illuminated, and the defendant failed to brake until “just

before or at the time that he struck the SUV.” 40 The trooper didn’t cite

the defendant for speeding and conceded that he ”had no way of knowing

specifically [the defendant’s] actual pre-accident speed.” Even though the

trooper conceded he didn’t know the defendant’s speed, he testified that

he thought the defendant was driving significantly faster than the posted

speed limit of 40 miles per hour. 41

In reviewing the sufficiency of the evidence on speeding, the Court

of Criminal Appeals determined the evidence allowed the jury to infer

that the defendant had been speeding, but wasn’t sufficient to prove

criminal negligence because the evidence failed to show that the

39See Queeman, 520 S.W.3d at 619; compare Tex. Penal Code Ann.

§ 6.03(c), with id. § 6.03(d).
40Id. at 620.
41Id. at 621 & 621 n.3.

23
defendant “engaged in any more extreme, aggressive, or foolish driving

acts than are ordinarily engaged in by drivers and accepted as reasonable

risks in exchange for the social utility provided.” 42 Since the evidence

didn’t establish a basis on which the jury could infer the defendant was

driving at an excessive speed, the Queeman Court held that a rational

juror “could not conclude that [the defendant] was excessively speeding

because that would require speculation beyond what is shown by the

evidence or what could be rationally inferred from the evidence in the

record.” 43

Turning next to the evidence addressing the defendant’s

inattentiveness in failing to apply her brakes, the Queeman Court agreed

the evidence established the defendant had been inattentive but still

observed:

Driving is a common activity that has risks about which
a reasonable person would be cognizant. Failure to appreciate
those risks and the circumstances that create them can
support ordinary negligence. Criminal negligence, however,
requires a greater showing—that the risk is ‘substantial and
unjustifiable’ and that the failure to perceive the
circumstances creating the risk is a ‘gross deviation’ from the
usual standard of care.” 44

42Id. at 631.
43Id. at 625.
44Id. at 630.

24
On the evidence in Queeman—a case that involved an “ought to be aware”

standard which we note is lower than the “aware of but consciously

disregards” standard at issue here—the Queeman Court concluded that

the proof of speed and failure to see the vehicle that was rear-ended failed

to show the defendant was guilty of criminal negligence. 45

Turning to Faulk’s case, the recklessness standard requires that

the evidence be viewed “from the actor’s standpoint.” 46 According to

Faulk, the evidence when viewed from her standpoint is insufficient to

show that she acted recklessly in failing to control her speed, in failing to

timely apply her brakes, or in failing to keep a proper lookout for other

traffic on FM 3247.

As to Faulk’s speed, the case is like Queeman in that the State’s

evidence doesn’t establish that Faulk was driving at an excessive rate of

speed. The evidence when viewed in the light most favorable to the jury’s

verdict establishes that Faulk was driving her car at 53 miles per hour

in a 50-miles per hour zone. Sam Watters, in a car three car lengths

45Id. at 631; compare Tex. Penal Code Ann. § 6.03(c) (culpable
mental state for recklessness), with id. § 6.03(d) (culpable mental state
for criminal negligence).
46Tex. Penal Code Ann. § 6.03(c).

25
behind Faulk, testified other cars were slowing for the garbage truck. But

Watters didn’t testify that Faulk was driving at an excessive speed. He

also didn’t testify about what side of the road the cars were on that he

saw slowing for the garbage truck. Clearly cars slowing for the truck

weren’t between Faulk’s car and the truck, or she would have hit them

before hitting the truck. Watters also didn’t distinguish between whether

he noticed the cars slowing before or after the collision occurred. Finally,

Watters never testified about how fast he was going before he saw Faulk

hit the truck.

We acknowledge that the record includes testimony that churches

and schools are located alongside FM 3247. Yet there isn’t any testimony

that the collision occurred in a school zone or that Faulk was cited for

speeding. In his opening statement, the prosecutor conceded that Faulk

“wasn’t speeding particularly fast.” There is also no testimony in the trial

that Faulk was weaving in and out of traffic or in a hurry to get to work.

The data from the black box revealed that Faulk’s speed was a few miles

above the speed limit when the collision occurred. None of this evidence

shows that Faulk was aware of but consciously disregarded a substantial

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and unjustifiable risk that a garbage truck would stop in the traveled

portion of FM 3247.

As to Faulk’s failure to apply her brakes, the case is also like

Queeman in that the evidence is clearly sufficient to support the jury’s

finding that Faulk failed to timely apply her brakes. The data from the

black box revealed that Faulk never hit her brakes. That said, the fact

Faulk didn’t hit her brakes before colliding with the truck doesn’t show

that she was consciously aware of but disregarded a substantial and

unjustifiable risk that a garbage truck would stop on the traveled portion

of FM 3247.

Turning to Faulk’s failure to keep a proper lookout, the evidence

shows that Faulk failed to keep a proper lookout—she struck a large

truck without applying her brakes or taking evasive action to avoid a

collision. But the question is whether the State met its burden to prove

that Faulk was aware of but consciously disregarded a substantial and

unjustifiable risk of the garbage truck stopping on the traveled portion of

the road. Boiled down, the State’s theory was that the truck was in front

of her for fifteen seconds and she could have seen it and slowed down had

she kept her eyes on the road. But as we have discussed, the State didn’t

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establish that the garbage truck was in the southbound lane for a full

fifteen seconds before the collision, and it didn’t establish that Faulk saw

the warning provided by the lights on the back of the truck before the

collision occurred.

As to Detective Ward’s experiment that shows him approaching a

garbage truck in the southbound lane, which was designed to

demonstrate that the truck is visible to southbound traffic at a distance

of two-hundred yards from where the collision occurred, we note that the

experiment was conducted under conditions that were different from

those confronted by Faulk. The garbage truck involved in the experiment

was always stationary and not moving like the garbage truck Faulk

approached on the day the collision occurred. And Detective Ward was

aware as he approached the garbage truck that it was stopped on FM

3247, an awareness that had he collided with the truck is an awareness

that would be probative to a jury’s finding of recklessness had the officer

with that knowledge collided with the truck.

We turn last to the State’s theory that Faulk was inattentive to her

driving tasks because she was putting on her makeup as she was

approaching the truck. If the jury believed Faulk was putting on her

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makeup and that task distracted her attention from the road, that

evidence shows that Faulk misjudged how long she allowed her attention

to be diverted from her task of driving her car. The evidence doesn’t show

that Faulk was aware of but consciously disregarded a substantial and

unjustifiable risk when she diverted her attention from the road while

applying makeup even if she misjudged how long it might take her when

there is no evidence that shows Faulk had any reason to know or expect

that there was a substantial risk a truck with a worker might stop on the

road to allow a worker on the truck to perform work in the traveled

portion of a 50-miles-per-hour road. Stated another way, the fact that a

person misjudges how long a task might take when the task represents a

temporary diversion of the driver’s attention from the ordinary task of

driving is a risk about which reasonable persons are cognizant, and proof

that a person failed to appreciate that risk is a circumstance that will

support a claim for ordinary negligence. But proving a claim of criminal

negligence requires a greater showing that by the defendant’s acts, the

defendant assumed a substantial and unjustifiable risk. And proving a

claim of recklessness (which is what the State undertook to prove here)

requires even more still—proof of the defendant’s awareness of a

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substantial and unjustifiable risk and proof of the defendant’s conscious

disregard. 47

When viewing the circumstances from Faulk’s standpoint, as we

must, we conclude the evidence doesn’t support a rational inference that

Faulk was aware of but consciously disregarded a substantial and

unjustifiable risk that she would rear-end a garbage truck on FM 3247,

a 50-miles-per-hour road. Moreover, the evidence the State presented did

prove beyond a reasonable doubt that Faulk diverted her attention from

the road for a full 15 seconds, which is what the State claimed is the

period that constitutes recklessness. Consequently—even though the

evidence establishes Faulk’s negligence in failing to control her speed,

failing to keep a proper lookout, and failing to brake and that her

negligence contributed to the collision—that evidence is insufficient to

support the inference that she was reckless. We sustain Faulk’s sole

issue.

47Compare Queeman, 520 S.W.3d at 630, with Tex. Penal Code Ann.

§ 6.03(c).
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Conclusion

For the reasons explained above, we reverse the judgment

convicting Faulk of manslaughter and render a judgment of acquittal.

REVERSED AND RENDERED.

HOLLIS HORTON
Justice

Submitted on August 1, 2023
Opinion Delivered March 6, 2024
Do Not Publish

Before Horton, Johnson and Wright, JJ.

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