## Facts

- Christopher M. Harber was a commercial driver operating a mobile-home hauler eastbound on Interstate 10.
- On July 27, 2012, Harber’s hauler moved onto the right shoulder and struck tow-truck driver Travis Danner, who was on the shoulder; Danner died at the scene.
- In June 2016, the State indicted Harber for manslaughter, alleging he recklessly caused Danner’s death by operating a commercial vehicle without a valid driver’s or commercial driver’s license, driving at an unreasonable speed, failing to brake reasonably, failing to maintain a single lane, and driving on an improved shoulder.
- Before trial, the State amended the indictment to strike the allegation that Harber was driving at an unreasonable and imprudent speed under the circumstances.
- At trial, the State introduced evidence that Harber’s commercial driver’s license had been suspended, but it did not show the suspension was for unsafe driving or that Harber lacked the skill to operate the hauler safely.
- The evidence reflected heavy traffic at the time of the collision, but the State did not present testimony that Harber had been driving erratically or otherwise unsafely before the incident.
- The record contained little concrete evidence about Harber’s speed before the collision or that he was traveling faster than surrounding traffic.
- There was evidence Harber failed to maintain a single lane and drove onto the shoulder, causing the collision; Harber testified he looked down for a second just before the vehicle moved onto the shoulder.
- The jury was instructed on manslaughter and the lesser-included offense of criminally negligent homicide.
- The jury acquitted Harber of manslaughter but convicted him of criminally negligent homicide and found he used or exhibited a deadly weapon; after Harber pleaded true to repeat-offender enhancements, the jury assessed 15 years’ imprisonment.
- Harber appealed, challenging the statute of limitations and the legal sufficiency of the evidence supporting criminally negligent homicide.

## Issues

1. Whether Harber could raise a statute-of-limitations defense for the first time on appeal, or whether the defense was forfeited by failing to assert it in the trial court.
2. Whether the evidence was legally sufficient to prove criminally negligent homicide, including that Harber’s failure to perceive a substantial and unjustifiable risk constituted a gross deviation from ordinary care and caused Danner’s death.

## Decision

- The court held Harber forfeited any statute-of-limitations defense by failing to raise and obtain a ruling on it in the trial court.
- The court held the evidence was legally insufficient to support Harber’s conviction for criminally negligent homicide.
- The court reversed the trial court’s judgment and rendered a judgment of acquittal.

## Legal Principles

- A criminal statute-of-limitations defense is forfeitable and generally must be raised in the trial court to be preserved for appellate review.
- Criminal negligence requires proof that the defendant ought to have been aware of a substantial and unjustifiable risk, and that the failure to perceive the risk was a gross deviation from the standard of care an ordinary person would exercise under the circumstances.
- Evidence of a tragic outcome and proof of ordinary driving errors or momentary inattention, without more, does not establish criminal negligence beyond a reasonable doubt.
- Proof that a driver lacked a valid or unsuspended license, without evidence connecting that status to unsafe driving or to the conduct causing the collision, is insufficient to establish the mental-state and risk elements of criminally negligent homicide.
- When an appellate court finds the evidence legally insufficient under Jackson v. Virginia, the proper remedy is reversal and rendition of a judgment of acquittal.

## Conclusion

Harber’s limitations argument failed because he did not present it in the trial court, but his conviction could not stand because the State’s proof showed, at most, ordinary negligence—such as brief inattention leading the hauler onto the shoulder—without evidence that Harber’s conduct created a substantial and unjustifiable risk amounting to a gross deviation from ordinary care; the court therefore reversed and rendered an acquittal.


Harber v. State, 594 S.W.3d 438 (2019)