I join the majority opinion. I write separately only to emphasize the fine, but marked, legal line between civil negligence and criminal negligence.

Civil or "simple" negligence "means 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." ⁽¹⁾ And "ordinary care" means "that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances." ⁽²⁾

Criminal negligence, however, requires a significantly greater degree of deviation from this standard of ordinary care before a person may be held criminally liable. It must be a "gross" or extreme deviation from that standard. And it is measured solely by the degree of negligence, not any element of actual awareness. ⁽³⁾ Conduct that constitutes criminal negligence involves a greater risk of harm to others, without any compensating social utility, than does simple negligence. A person may be found criminally negligent when he inadvertently creates a substantial and unjustifiable risk of which he ought to be (but is not) aware. ⁽⁴⁾ And a jury must evaluate the defendant's failure of perception and determine whether, under all the circumstances, it was serious enough to be condemned under the criminal law. ⁽⁵⁾

Of course, as the risk of harm increases, so does the likelihood that the person will actually be aware of the risk created by his or her conduct. Despite this increased likelihood of awareness, criminal negligence does not require proof of the accused's subjective awareness of the risk of harm. A person's prior "problems" with a car, truck, or trailer hitch may be considered by the jury in determining whether a defendant's conduct is a gross deviation from the standard of care that an ordinary person would exercise, but evidence of such prior "problems" are neither necessary or sufficient by themselves to establish criminal negligence. It is a defendant's awareness of the attendant circumstances, not his subjective awareness of the risk of harm, that matters in criminal negligence. Thus, if an ordinary person in appellant's position would check to ensure that a trailer was properly secured to his truck with safety chains; that the ball on the bumper to which the trailer hitch was attached was secure and properly attached; that the trailer hitch itself locked properly onto the ball; and that a load of dirt was properly loaded toward the front of the trailer rather than over the rear axle, then appellant's failure to check these items for the ordinary safe hauling of dirt may suffice to establish a gross deviation from the ordinary standard of care. ⁽⁶⁾ This is true even though appellant himself was subjectively unaware of the great risk of harm or death caused by his failure to perform such safety measures. Criminal liability is imposed because he should have been aware of the substantial risk of death that his failure to both note and repair these numerous deficiencies entailed. ⁽⁷⁾ Had there been only a single deviation from the ordinary standard of care, e.g., had appellant exercised ordinary care but for the failure to attach a safety chain between the trailer and truck, then his conduct in "failing to properly secure a trailer to his truck" might constitute mere simple civil negligence, not criminal negligence.

With these comments, I join the majority.

Filed: December 7, 2005

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1.Keetch v. Kroger Co., 845 S.W.2d 262, 271 (Tex. 1992) (Mauzy, J., dissenting) (quoting Texas Pattern Jury Charge 65.01).

2.Id.

3. For example, if a grocery store sells unbagged grapes, one of them falls to the floor, and a shopper then slips on that grape and falls to the floor, the grocery store might be held civilly negligent for failing to be aware of the risk that its fallen grapes could cause a shopper to slip and break a leg. It might be criminally negligent for that same grocery store to permit shoppers to enter into the meat-cutting department knowing that the floor is covered with blood and meat detritus and that the butchers are using unprotected automated meat saws, if a shopper slips and falls into a band saw and is killed by its teeth. In both instances the manager may be subjectively unaware of the risk of harm that fallen grapes and unprotected meat saws may create, but he is aware of the circumstances (e.g., the grapes on the floor and the slippery blood underneath an automated band saw), and he should have been aware of the moderate risk of harm in the first case and the substantial and unjustifiable risk of death or serious bodily injury in the second.

4.See Model Penal Code § 2.02 commentary at 240 (1985).

5.Id. at 241.

6.See id. at 243:

When people have knowledge that conviction and sentence, not to speak of punishment, may follow conduct that inadvertently creates improper risk, they are supplied with an additional motive to take care before acting, to use their faculties and draw on their experience in gauging the potentialities of contemplated conduct. To some extent, at least, this motive may promote awareness and thus be effective as a measure of control.

7. In this case, the prosecutor fully and accurately set out appellant's numerous deficient acts in his closing statement, and he discussed the appropriate standard of care.See Court's op. at pp. 9-10.