Death Cause by Distracted Driving While on Cell Phone Leads to Conviction for Negligent Homicide

By Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair.


It was an emotional crime, to be sure. The father of the daughter convicted of the crime now no longer believes in the criminal justice system, and the convicted daughter still does not believe she committed a crime at all—even though the 25-year-old father of a child is dead because of the daughter’s behavior.


The daughter is 24-year-old Jeri Montgomery who was recently convicted in Harris County for the offense of criminally negligent homicide. Assistant District Attorney Brent Mayr prosecuted the case. The prosecutor convinced a jury that Montgomery committed the homicide against Chance Wilcox in March 2008 when she illegally changed lanes while trying to get on an interstate highway resulting in a fatal three car pileup. Mayr presented evidence, through Montgomery’s cell phone records, that the woman had just terminated a cell phone conversation when she realized she was about to miss the on-ramp to the interstate and abruptly changed lanes in front of Wilcox.


“She [Montgomery] made the decision to talk on her cell phone,” Mayr was quoted as saying in the Houston Chronicle. “That distracted her from knowing where she was, where other cars were around her, and, ultimately, she made the choice to make an extremely negligent decision and the jury found it was criminal negligent.”


U.S. Transportation Secretary Ray LaHood last month called “distracted driving” a “menace to society” which killed nearly 6,000 people last year and injured a half-million more. The two leading causes of “distracted driving” are talking on cell phones, as Montgomery was doing, and texting while driving. USA Today reported recently that some 38 states have either enacted legislation or are currently considering pending legislation that would ban these forms of distracted driving.

Because Texas has not enacted a specific law that bans the use of cell phones by adults while driving, Thomas Montgomery, Jeri Montgomery’s father, blasted the jury’s decision to convict his daughter of criminally negligent homicide.

“Justice was not served and I don’t believe in our criminal justice system anymore,” he was quoted by the Chronicle after the verdict was rendered. “There’s a precedent that’s been set here that is going to affect all of you. Where does it stop? My daughter has been punished for a law that doesn’t exist.”


Mr. Montgomery’s emphatic assertion that his daughter was punished for a “law that doesn’t exist” is, unfortunately, incorrect. Texas law defines criminally negligent homicide as anyone who “causes the death of an individual by criminal negligence.” 1/


And what constitutes “criminal negligence?” The Texas Legislature enacted this definition: “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.” 2/


Under these two legislative enactments, the prosecution had to prove that (1) Ms. Montgomery should have been aware that her action—distracted driving—posed a substantial and unjustifiable risk; and (2) her failure to perceive that risk constituted a gross deviation from the standard of care an ordinary person would have exercised under similar circumstances viewed from Ms. Montgomery’s standpoint. 3/


The staggering number of deaths and injuries caused by distracted driving clearly demonstrates that such behavior poses a substantial risk to others. But, does a person with normal, rational thought processes understand that talking on a cell phone while driving constitutes a gross deviation from the standard of care owed to other drivers?  So many people use cell phones while driving that this question triggers substantial debate.


Again, we must turn to the law for guidance. Texas law has long established that neither “contributory negligence” (even if “fault” could have been attributed to Wilcox for crashing into the rear of Ms. Montgomery’s vehicle) nor “accident” (Ms. Montgomery did not intend for her cell phone conversation to distract her from her driving responsibilities) are defenses to criminally negligent homicide. 4/


Nearly three decades ago the Texas Supreme Court observed that “what lifts ordinary negligence [for example, gesturing or talking while driving] into gross negligence [driving while distracted or intoxicated] is the mental attitude of the defendant. 5/

The National Highway Traffic Safety Administration states that a person driving while talking on a cell phone increases the chances of having an accident by 400%. 6/


Thus, from the prosecutor’s perspective, talking and texting on a cell phone while driving is not ordinary negligence; it’s gross negligence that poses a substantial and unjustifiable risk to not only other drivers but passengers in the vehicle being driven by the cell phone user. The question then arises: does the general public, or the individual driver, understand this risk?  The cell phone companies surely have not assumed any responsibility to educate the public about the risks associated with driving while using a cell phone.


Under Texas law, criminal negligence cannot exist without “a failure to perceive the risk.” 7/ In other words, did Ms. Montgomery fail to perceive that her cell phone conversation so distracted her that she did not realize she was making the illegal lane change that killed Mr. Wilcox?. This kind of “failure to perceive” is determined by what the Supreme Court said is the “mental state” of a person charged with criminally negligent homicide.


Against this legal backdrop, it must be pointed out that Texas courts have uniformly recognized that “proof of mental state generally relies upon circumstantial evidence … Ordinarily, it must be inferred from the acts, words, and conduct of the accused and the surrounding circumstances … The issue of whether recklessness or criminal negligence is shown—that is, whether one is aware of the risk or simply fails to perceive it—is a conclusion to be drawn through inference from all the circumstances by the trier of fact.” 8/


So what kind of gross negligent driving conduct constitutes a mental “failure to perceive the risk” of that conduct? A Texas court of appeals has held that driving a vehicle at an excessive speed in a residential neighborhood at a time when children are on their way to school would properly constitute a failure to perceive the risk. 9/


It is this kind of failure to perceive a risk that distinguishes criminal negligence from ordinary reckless conduct. 10/


In the Jeri Montgomery case, Assistant DA Mayr was able to convince the jury that Ms. Montgomery’s failed to perceive the risk of using a cell phone, that her conduct distracted her from her safe driving responsibility, and that this failure amounted to criminal negligence which resulted in the death of Chance Wilcox. Contrary to what Mr. Montgomery implied in his comments to the Chronicle, Ms. Montgomery was not convicted of “distracted driving” (talking on cell phone while driving), but rather was convicted because her cell phone use distracted her from the legal duty to drive safely and another human being was killed because of that criminal negligence.


Understanding the difficult legal, as well as moral, issues associated with this particular case, State District Court Judge Herb Ritchie was persuaded to impose a relatively lenient sentence on her. The judge ordered the young woman to spend 30 days in jail, pay a $10,000 fine, and a serve a 10-year probation with the following conditions: write a 1000-word essay “suitable for publication in high school newspapers,” perform 400 hours of community service, undergo random urinalysis tests, and not drive a vehicle until approved to do so by the court.


Chance Wilcox’s mother told the Chronicle she believed justice had been served by the sentence and hoped it would deter others from talking on cell phones while driving.


But was the prosecution warranted under the facts of the case?  Was it consistent with other car accident cases resulting in a death?


Recent policy changes in the Harris County District Attorney’s Office has put the conviction of Jeri Montgomery in serious question. Last month a Harris County district court judge threw out a felony murder charge against Danny Ship who killed a prominent physician during a high speed police chase. The district attorney’s office then permitted to Ship to plead guilty to a reduced charge of evading arrest.


The judge’s decision prompted District Attorney Pat Lykos’ office to undertake a “review” of at least 100 cases involving vehicular-related homicides. This review not only resulted in the dismissal of the felony murder charge being dismissed against Ship but a criminally negligent homicide charge being dismissed against wrecker driver Sergio Gonzales. The Gonzales case was even more bizarre than the Ship case. Gonzales had pled guilty and was awaiting sentencing on the charge against him. He had pled guilty to criminally negligent homicide after crashing his wrecker at a speed of 90 MPH into a vehicle carrying an elderly couple that had failed to yield. The couple was killed in the wreck.


While the District Attorney’s office has refused to publicly explain why it chose to undertake this “review” or provide guidelines for its review, the fact that the district attorney dismissed two homicide charges in vehicle accident cases where both drivers were at the very minimum “negligent” certainly casts serious questions on the propriety of Jeri Montgomery’s prosecution. If killing someone during a high-speed police chase or killing someone while driving 90 MPH does not constitute negligence sufficient to make it criminally negligent homicide, then distracted driving (or even an illegal lane change) is certainly not a basis upon which to obtain a criminally negligent homicide conviction.


Jeri Montgomery’s defense attorney will probably appeal her conviction, as he should.


It is hard to understand why the district attorney’s office pursued its criminally negligent homicide case against Montgomery, while the office was also formulating a “review” of all vehicular homicide-related cases, a review that resulted in reducing similar charges in other cases.  It will be interesting to see the reasons for this review and the District Attorney’s final policy on distracted driving and the unfortunate deaths that result from this dangerous new phenomenon.




1/ Texas Penal Code, Art. 19.05
2/ Texas Penal Code, Art. 6.03(d)
3/ Stadt v. State, 120 S.W.3d 428, 433 (Tex.App.-Houston [14th Dist.] 2003, no pet.).
4/ Sykes v. State, 399 S.W.2d 349 (Tex.Crim.App. 1970); Stout v. State, 460 S.W.2d 911 (Tex.Crim.App. 1970).
5/ Bank Royalty Company v. Walls, 616 S.W.2d 911 (Tex. 1981)
7/ Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.App. 1975)(“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.”)
8/ Stadt v. State, supra, at 438.
9/ Thompson v. State, 676 S.W.2d 173, 176-77 (Tex.App.-Houston [14th Dist.] 1984, no pet.)
10/ Nash v. State, 664 S.W.2d 343, 345 (Tex.Crim.App. 1984)

By Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair.