Opinion
13-22-00327-CR
08-28-2023
OVIE LESLEY POWELL II, Appellant, v. THE STATE OF TEXAS, Appellee.
Do not publish. TEX. R. APP. P. 47.2 (b).
On appeal from the 21st District Court of Burleson County, Texas.
Before Chief Justice Contreras and Justices Benavides and Longoria
MEMORANDUM OPINION
NORA L. LONGORIA Justice
Appellant Ovie Lesley Powell II was convicted of criminally negligent homicide, a state jail felony. See TEX. PENAL CODE ANN. § 19.05. Finding no use or exhibition of a deadly weapon, the jury assessed punishment at one year in state jail and a fine of $10,000, both suspended for two years. By one issue, appellant challenges the legal sufficiency of the evidence to support the conviction. We affirm.
This appeal was transferred to this Court from the Tenth Court of Appeals in Waco by order of the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 73.001.
The State's indictment alleged that appellant:
on or about the 18th day of July, A.D. 2020, and before the presentment of this indictment . . . did then and there by criminal negligence, cause the death of an individual, Olivia Paige Sweeney, by operating a motor boat in reverse in the immediate vicinity of swimmers and failing to be aware of the deceased's proximity to the propeller.
A. State Witnesses
At trial, the State presented several witnesses to testify regarding the events that took place on July 18, 2020.
1. Monique Compton
Monique Compton testified that she was friends with appellant and Sweeney, having met them each through church. On July 18, 2020, she and her two children joined appellant and Sweeney to go boating for the day on Lake Somerville. They brought a bottle of tequila and a case of beer onto the boat. They engaged in recreational activities such as tubing, swimming, and relaxing on the boat. While appellant was the main operator of the boat, Compton testified that Sweeney also controlled the boat at times. Compton explained that appellant had to call the owner of the rented boat to get instructions on operating the boat, "asking about the buttons bars [sic] as far as to get it to move forward and backwards."
While out on the water, another friend, Xavier Workman, joined them on the boat. At some point, Compton's daughter Avery was swimming beside the boat, wearing a life vest. Sweeney jumped into the water to join Avery. According to Compton, appellant suggested a short time later that she join Sweeney, who appeared out of breath in the water. Compton put a life vest on and joined Avery and Sweeney. She explained that when she reached them, she cradled Sweeney in her arms to give Sweeney some relief from swimming. Compton said that Sweeney was not struggling but was out of breath. Compton said they were laughing and joking with one another as Compton helped Sweeney back toward the boat. At that time appellant was the only person on the boat. Compton explained that she "just so happened to look up" and noticed the "the boat flying toward us." At that point, she put her arm up to brace for impact and explained that she and Sweeney were hit by the boat. She could not recall if she let go of Sweeney or what happened next. When Compton resurfaced, she got to the boat and found her children safe on the boat.
Compton testified that she had lacerations and injuries from the boat striking her, and that Sweeney did not resurface. She could not recall who dialed the phone, but she recalled that she spoke to a 9-1-1 dispatcher to give them the location of the boat. While Compton admitted she was "really foggy" from hitting her head, she testified that appellant, who had previously had several beers, was "frantic." She explained that although it was out of character for him, appellant was smoking cigarettes and he was "pacing back and forth on the boat." Compton also recalled that appellant "stuck his finger down his throat and started throwing up."
When emergency response personnel arrived, the boat was directed to shore and the parties spoke with the police regarding what had happened. Compton testified that she was later given a ride home by appellant. She said that, on the drive home, appellant was driving "very wild," "speeding," and "swerving." Subsequently, she stated she had minimal contact with appellant. On cross-examination, Compton stated that appellant was emotionally distraught over the situation, and she did not believe his acts were intentional.
2. Isaiah Palmer
Compton's son Isaiah Palmer, who was also present on the boat that day, testified next. Testifying similarly to his mother, Isaiah stated that he, Avery, and their mother were boating with appellant, Sweeney, and Workman on July 18, 2020. Appellant was the primary driver of the boat. At the time of the incident, Isaiah was in the water near the back side of the boat with Workman and Avery. When he was in the water, Isaiah observed the boat start up, and he said it backed up and then came to "an abrupt stop." At that time Isaiah said he was "panicked" because his mother and Sweeney were behind the boat. He explained that he told his sister to get on the boat and when they got back up, he began to look in the water for his mother and Sweeney. Eventually, after about a minute, he said his mother returned to the boat, but Sweeney did not. Isaiah recalled that appellant jumped into the water briefly but got back onto the boat shortly after.
3. Xavier Workman
Workman testified that he joined the others on the boat after having seen that they were out on the water via social media. At some point, he went on the inner tube being pulled by the boat and appellant was operating the boat. When Workman was done on the tube, the boat stopped and sat "stationary" in the water. Avery jumped into the water, wearing a life vest, and Sweeney joined her, but was not wearing a life vest. Sometime thereafter, Compton jumped into the water to assist Sweeney, whom Compton thought appeared to be struggling a bit in the water. Sweeney and Compton were then having a conversation and laughing in the water, when Workman noticed it appeared that Avery was drifting. Workman stated that he then put his life vest on and jumped into the water to get to Avery, and Isaiah joined him. Avery was hanging onto the back of Workman's life vest and Isaiah held onto Workman's shorts so that he could pull them back to the boat. He was swimming under water, with the kids in tow. When he surfaced, he noticed the boat had moved backwards a bit. He then went back underwater to swim toward the boat and when surfaced again he stated the boat was "in motion coming toward" them. At that point he was able to grab the rope used for the tube that was hanging off the side of the boat, and they used the rope to pull themselves onto the boat. Workman said he could not see Compton or Sweeney when he was in the water. When Compton got on the boat, she was bleeding from her arm or hand and was concerned that she had let go of Sweeney. Appellant was "standing at the back of the boat, kind of scanning the water." At that point, appellant asked Workman for a cigarette and proceeded to smoke three cigarettes and threw up into the water. On cross-examination, he explained that he had told law enforcement he believed that backing the boat up would have been beneficial to helping Sweeney and Compton return to the boat.
4. Law Enforcement and Investigative Testimony a. Investigator Caleb Stephens
Investigator Caleb Stephens from the Burleson County Sheriff's Office (BCSO) testified that he was called to a possible drowning at Lake Somerville on July 18, 2020. Stephens's body camera footage was admitted into evidence and depicts his discussions with the parties present at the time of the incident. In the footage, Compton explained that she was assisting Sweeney back to the boat when she either struck the boat or it struck her, she dropped Sweeney, and she "didn't see her again." Stephens explained that, when responding to a potential drowning, it is more likelytypical that the Game Warden will recover the body, . He explained that but the investigation procedure is different if they believe someone had been struck by the a boat, because the investigation would then require the officers to look into "foul play." Compton and appellant informed Stephens that Sweeney likely had Covid at the time of her death, that she was "tired" that day, and had a "couple of beers" while on the boat.
b. Game Warden Kyle Yoder
Kyle Yoder, a Game Warden, testified that he was called out on July 18, 2020, in response to a drowning at Lake Somerville. He explained that his immediate response was to get to the lake and begin search and rescue efforts, detailing the sonar capabilities the boats have. Prior to getting into the water, he stated that he received a notification that Sweeney's body was found, so the call went from a "recovery effort to an investigative effort." Yoder explained that there are different processes in place for a typical drowning versus a collision or a boat accident. Yoder testified that, at the time of the call out, he had not been informed that Sweeney had been hit by the boat. According to Yoder, this prevented a typical investigation which would have included determining whether the impact was accidental and whether there was any intoxication involved.
Due to the weather conditions and time of the evening, they were not able to recover the body from the water and had to discontinue efforts for the night. The next day, while they were resuming their efforts, an emergency call came in that someone had seen the body floating in the water. Upon finding the body, Yoder testified that the condition of her body had indications that it had been hit by a propeller, which he stated changed things from a "simple drowning" to a potential criminal investigation. After the body was removed from the water and photographed, it was transported to the medical examiner for an autopsy. Yoder testified that he went to inspect the boat the next day. After receiving consent from the owner of the boat, Yoder searched the boat and found hair and "a green follicle [sic] that was similar to the [green] bikini that [Sweeney] was wearing" on the boat's propeller.
In discussing how the boat operated, Yoder explained that "[t]here has to be a conscious effort to put [the boat] in gear by pushing the button up and deciding one way or another to go forwards or backwards." Upon inspecting the boat, Yoder stated that there was "nothing wrong with the throttles." On cross-examination, Yoder testified that he did not perform any tests on the throttle or the gears to determine that they were in working condition.
c. Camielle Creamer
Camielle Creamer, Sergeant Investigator for the Caldwell Police Department, testified that she was called out to Lake Somerville the day after the drowning when Sweeney's body was recovered. She explained that she photographed the body after it was recovered. After the body was recovered, Creamer contacted the other adults who were on the boat that day and scheduled interviews with them. She interviewed appellant twice, once to initially gather facts, and a second time to discuss newly discovered information from the other interviews related to the injuries sustained by Sweeney. In the second interview, a recording of which was admitted and played for the jury, appellant explains that he could not recall if he put the boat into reverse and was quite distraught when the investigators informed him that Sweeney's injuries appeared to have been caused by the boat. Creamer testified that appellant's reaction to the information was "overly dramatic."
On cross-examination, Creamer acknowledged that in an accident like the boating incident that occurred in this case, it was possible that a mechanical issue on the boat could have been a contributing factor. She was not the one to investigate the boat, she stated that was done by Yoder.
d. Medical Examiner Dr. Keith Pinckard
Dr. Keith Pinckard, the Chief Medical Examiner for Travis County, testified that he performed the autopsy on Sweeney. Dr. Pinckard stated that Sweeney had "multiple severe chop-type injuries involving the scalp, neck, back, buttocks, and right arm" which were visible externally. Sweeney also had a depressed skull fracture, which is indicative of "being struck by a hard object." Sweeney also had a broken spinal column, her spinal cord was "cut in two," and she suffered "multiple fractures" including on her right arm, multiple ribs, right scapula, shoulder blade, right clavicle, collarbone, and pelvis. Her liver and right lung were also lacerated. Dr. Pinckard stated her cause of death was the "chop injuries."
B. Motion for Directed Verdict
After the State rested, appellant moved for a directed verdict, arguing there was insufficient evidence to prove criminal negligence. After hearing argument, the trial court denied the motion.
C. Defense Witnesses 1. Logan McKinley
Logan McKinley is the owner and operator of a boat repair workshop. McKinley indicated that he possessed documents demonstrating that the boat operated by appellant had undergone fairly routine maintenance. The maintenance documents were admitted as evidence. McKinley explained that there was a time when the boat was "making a little bit of noise," but with an oil change and routine maintenance, it was repaired.
2. Chris Moutray
Chris Moutray, a legal assistant at appellant's defense counsel's firm, testified that prior to his employment with the law firm, he worked as a police officer and detective. As part of his work for the law firm, he was tasked with investigating the boat involved in the incident. He spoke to McKinley and received permission to look at the boat in McKinley's shop in November 2020. As part of his investigation, Moutray photographed parts of the boat, including the throttle. He testified that his focus on the throttle was because he "found some issues with the throttle when [he] looked at the boat." While Moutray testified that he is not a mechanic, he explained that he perceived an issue with the throttle that he pointed out to the mechanic working on the boat. He testified that the mechanics at McKinley's shop seemed to be "concerned" about the throttle issue that Moutray noticed. Moutray explained that while this boat required a button to be pressed before the throttle could be moved backwards or forwards, at the time he inspected the boat, he was able to manipulate the throttle without pressing the button. On cross-examination, Moutray explained that he could not state that the boat was in the same condition as it had been on the night of the accident in July 2020.
3. Jason Shane Dunham
Jason Shane Dunham testified as an expert marine surveyor who "handle[s] complex marine insurance claims, drive failures, powerhead failures, boat accidents, recoveries. All aspects of the marine industry." Dunham testified that certain weather conditions, including wind, can cause "choppy water" which can cause people in the water to be pushed away from the boat. He explained that Sweeney being in choppy water without a life vest was "a mistake." Dunham stated that at that time, it would have been "proper" to throw a life vest or cushion to Sweeney in the water, as she was struggling. However, because Compton jumped into the water and she and Sweeney were drifting away, Dunham explained that he would consider it "standard practice" to move the boat toward them to assist them. In his opinion, he would not consider it "inherently reckless or negligent" to move the boat toward the women.
In his review of the maintenance records for the boat, he noted that the shop put the "wrong setup" on the boat, indicating that they used the wrong "outdrive." He explained that the wrong gear lube was being used to maintain the boat, which affects the performance of the boat's gears and props. The type of oil used, according to Dunham, "will break down and cause shifting problems." He also explained that, subsequent to the incident, a "SkegGuard" was installed on the boat, and that "[t]he only reason you put those on there is because you have had a previous impact, or something like that of the outdrive." The "SkegGuard" was not in the photos taken by Yoder. Based on his review of the photos taken by Yoder, he believed the boat had previously been in a collision, and it was his opinion that the "skeg" and "outdrive" were not in proper condition on the date of the accident. He also testified that, based on his review of Moutray's videos and pictures, the throttle of the boat was not in good working condition because the safety mechanism that requires the button to be depressed before the throttle can move was not functioning. Essentially, according to Dunham's testimony, this could allow the boat to start up "in gear" and begin moving instantly. Based on his review of the exhibits, he opined that the "worn out shifter" contributed to the accident and that appellant was not at fault, stating "[t]here was nothing he could do."
On cross-examination, Dunham admitted that he was not certain how much the boat was used between the accident and the time that Moutray inspected the boat more than three months later. He further explained that he would not back a boat up toward someone, but rather he would circle around and approach them from the other side.
D. Conviction and Sentencing
The jury found appellant guilty of criminally negligent homicide. The jury assessed punishment at one year in state jail, probated for two years, and a fine of $10,000. This appeal followed.
II. Sufficiency of the Evidence
In his sole issue on appeal, appellant argues that the evidence was legally insufficient to support a conviction for criminally negligent homicide.
A. Standard of Review
We review the sufficiency of the evidence by considering "all the evidence in the light most favorable to the verdict and determin[ing] whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Hammack v. State, 622 S.W.3d 910, 914 (Tex. Crim. App. 2021); see Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The jury is the sole judge of witnesses' credibility and the weight to be given to the evidence presented, and we defer to those conclusions. Hammack, 622 S.W.3d at 914 (citing Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012)).
We measure the sufficiency of the evidence by the elements of an offense as defined by a hypothetically correct jury charge. Id. "Such a charge [is] one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).
B. Applicable Law
A person commits the offense of criminally negligent homicide if he causes the death of an individual by criminal negligence. TEX. PENAL CODE ANN. § 19.05. The Legislature has defined the mental state for criminal negligence as follows:
A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise
under all the circumstances as viewed from the actor's standpoint. Id. § 6.03(d).
A legally sufficient showing of criminally negligent homicide requires the State to prove that: (1) the defendant's conduct caused the death of an individual; (2) the defendant ought to have been aware that the conduct created a substantial and unjustifiable risk of death; and (3) his failure to perceive the risk constituted a gross deviation from the standard of care an ordinary person would have exercised under similar circumstances. See Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017) (citing Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012)); TEX. PENAL CODE ANN. §§ 6.03(d), 19.05(a)). The circumstances must be viewed from the standpoint of the defendant at the time the allegedly negligent act occurred. Queeman, 520 S.W.3d at 623. "Criminal negligence does not require proof of [a defendant's] subjective awareness of the risk of harm, but rather [the defendant's] awareness of the attendant circumstances leading to such a risk." Montgomery, 369 S.W.3d at 193. "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.
Criminal negligence is not simply the criminalization of ordinary civil negligence. Id. The "carelessness required for criminal negligence is significantly higher than that for civil negligence," and the conduct "involves a greater risk of harm to others, without any compensating social utility" than does conduct that constitutes ordinary civil negligence. Id. The risk created by the conduct must be "substantial and unjustifiable," and the failure to perceive it must be a "gross deviation" from reasonable care as judged by general societal standards by ordinary people. Queeman, 520 S.W.3d at 623 (quoting Montgomery, 369 S.W.3d at 193). In finding a defendant criminally negligent, a jury is determining that the defendant's failure to perceive the substantial and unjustifiable risk is so great as to be worthy of criminal punishment. See id.; see also Shadle v. State, No. 14-22-00508-CR, 2023 WL 4873025, at *4 (Tex. App.-Houston [14th Dist.] Aug. 1, 2023, no pet. h.).
C. Analysis
The indictment alleged appellant caused Sweeney's death by "operating a motor boat in reverse in the immediate vicinity of swimmers and failing to be aware of the deceased's proximity to the propeller." The State prosecuted appellant on the theory that his conduct in causing the accident resulting in Sweeney's death was not simply a mistake but rather the result of gross negligence. Appellant, in his defense, argued that mechanical failure of the boat likely caused the accident, a possibility appellant argues was not investigated by law enforcement. Relying on Queeman, appellant asserts that there was nothing in this case to elevate a simple claim of negligence to a criminal negligence finding. See Queeman, 520 S.W.3d at 631.
In Queeman, the jury found the driver of a vehicle who rear ended another vehicle to be criminally negligent for the death of a passenger in the other vehicle. Id. at 620-21. On appeal, the driver argued that there was insufficient evidence to establish that his actions rose to the level of gross negligence necessary for a criminal negligence conviction. Id. at 621-22. The San Antonio court found that the evidence did not establish that the driver was engaged in "any criminally culpable risk-creating conduct . . . that created or contributed to a 'substantial and unjustifiable' risk of death." Queeman v. State, 486 S.W.3d 70, 77 (Tex. App.-San Antonio 2016) (quoting People v. Boutin, 555 N.E.2d 253, 255-56 (N.Y. 1990)), aff'd, 520 S.W.3d 616. Thus, the San Antonio court reversed the driver's conviction for criminally negligent homicide. 486 S.W.3d at 77. The State filed a petition for discretionary review with the Texas Court of Criminal Appeals. See Queeman, 520 S.W.3d at 616. In its review, the court of criminal appeals noted that the State's arguments related to the driver's negligence were "necessarily vague" and that "criminal negligence is an ad hoc, fact intensive determination that must be left to juries, as society's representatives, to decide whether conduct deserves criminal liability." Id. at 628. The court 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. The dispute here concerns the latter portion of the inquiry with respect to whether appellant's conduct grossly deviated from the ordinary standard of care due to his failure to perceive that these circumstances created a risk of a fatal accident.Id. at 630.
After comparing the facts in the Queeman case to two other decisions, the court of criminal appeals held that "[t]he evidence presented at trial, viewed in the light most favorable to the verdict, does not demonstrate that appellant's conduct-his failure to keep a proper lookout and maintain control of his vehicle's speed-rose to the level of criminal negligence," thus affirming the San Antonio court's judgment that there was legally insufficient evidence to establish criminally negligent homicide. Id. at 631 (first citing Tello v. Sate, 180 S.W.3d 150 (Tex. Crim. App. 2005); and then citing Boutin, 555 N.E.2d at 255-56).
Here, the situation is similar to that in Queeman in that the question is "whether appellant's conduct grossly deviated from the ordinary standard of care due to his failure to perceive that these circumstances created a risk of a fatal accident." Id. at 630. The State suggests that appellant's actions in "backing a boat in the direction of nearby swimmers" was inherently risky. Coupling that action with the undisputed fact that appellant had consumed alcohol while operating the boat, the State contends that appellant's conduct grossly deviated from the standard of care.
In contrast to the Queeman case, which is heavily relied on by appellant, here we have testimony that appellant had consumed alcohol as he was driving the boat and the record supports that the very nature of appellant's conduct was inherently dangerous, as he opted to reverse the boat toward the swimmers in the water. See Queeman, 486 S.W.3d at 77 (referring to "drug or alcohol intoxication" as a "type of serious, blameworthy conduct"). When cross-examined, appellant's own expert witness, Dunham, answered affirmatively when the State asked whether "the proper way to pick up anybody in the water, isn't that to go-when you're driving on the right hand side, that you should really circle around and pick them up. So that way you can keep an eye on them when they are in the water, right?" The expert even stated that "[he] would not back up" in that scenario. While the expert also opined that it was likely that the boat started in reverse due to mechanical failure, he agreed that he was not there to see what happened.
We must view the evidence in a light most favorable to the jury's verdict. See Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013) (citing Jackson, 443 U.S. at 318-19). The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimonies, and the reviewing court must not usurp this role by substituting its own judgment for that of the jury. Montgomery, 369 S.W.3d at 192. The jury heard testimony from two witnesses that the boat was moving fast and "flying through the water" toward Sweeney and Compton. While the jury was informed of potential issues with the boat, they were free to disbelieve this testimony and to believe that, in reversing the boat toward the swimmers, appellant failed to perceive a substantial and unjustifiable risk. See id. at 192 ("When the reviewing court is faced with a record supporting contradicting inferences, the court must presume that the jury resolved any such conflicts in favor of the verdict, even if not explicitly stated in the record.").
Accordingly, after reviewing the record, we conclude that the State has met its burden of proving all of the elements of criminally negligent homicide. Appellant, after and while drinking alcohol, operated the boat in a careless way by abruptly reversing the boat toward swimmers in the water, causing one of the swimmers to be severely "chopped" by the boats propeller and killed. The State has shown that appellant, by making the unsafe decision to reverse the boat, caused the death of Sweeney. The State also proved that appellant should have been aware of the substantial and unjustifiable risk created by his conduct. Given these circumstances, we find that a jury could have reasonably concluded that appellant ought to have been aware of the substantial and unjustifiable risk created by his actions. See id. at 194.
Appellant's sole issue is overruled.
III. Conclusion
The judgment of the trial court is affirmed.