Comment

The offense of failure to stop and render aid is based on Tex. Transp. Code § 550.021.

Culpable Mental State. The plain language of the statute does not include a culpable mental state. This was also the case with its predecessor, Tex. Civ. Stat. art. 6701d, § 38(a) (repealed by Acts 1995, 74th Leg., R.S., ch. 165, § 24(a) (S.B. 971), eff. Sept. 1, 1995), which said in relevant part:

In Goss v. State, the court of criminal appeals held that Tex. Penal Code § 6.02(b) and (c) required that the offense have a culpable mental state and concluded that “the accused must know an accident has occurred before the duty to stop and render aid arises.” Goss v. State, 582 S.W.2d 782, 785 (Tex. Crim. App. 1979). “A construction of Article 6701d, Secs. 39 and 40, supra, that imposes strict liability upon the driver who had no knowledge that an accident had occurred would be unreasonable, and we find such a construction untenable.” Goss, 582 S.W.2d at 785.

The court elaborated on this holding in Huffman v. State. At the time, Tex. Transp. Code § 550.021(a) was a mere recodification of Tex. Civ. Stat. art. 6701d, § 38(a):

• (a) The operator of a vehicle involved in an accident resulting in injury to or death of a person shall:
  • (1) immediately stop the vehicle at the scene of the accident or as close to the scene as possible;
  • (2) immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident; and
  • (3) remain at the scene of the accident until the operator complies with the requirements of Section 550.023.

In determining whether (a)(1)–(3) could be charged in the disjunctive, the court held that the focus or gravamen of the offense was the “circumstances surrounding the conduct,” i.e., the accident. Huffman v. State, 267 S.W.3d 902, 907–08 (Tex. Crim. App. 2008). It reiterated Goss’s conclusion that the culpable mental state must attach to the circumstance, clarifying that “appellant’s failure to stop, return, or remain becomes criminal only because of his knowledge of circumstances surrounding the conduct: an accident and a victim suffering an injury.” Huffman, 267 S.W.3d at 908 (emphasis added).

The current language of the statute was in direct response to Huffman. By expanding the circumstances surrounding the conduct to include accidents that are reasonably likely to result in injury or death, the legislature sought to encourage operators to determine if anyone was injured and to avoid requiring that the state prove the operator knew death or injury had resulted. House Comm. on Transp., Bill Analysis, Tex. H.B. 3668, 83d Leg., R.S. (2013). Multiple courts of appeals held these changes meant that the implicit requirement of knowledge of involvement in an accident no longer included knowledge that someone was hurt. Curry v. State, 569 S.W.3d 163, 168 (Tex. App.—Houston [1st Dist.] 2018), rev’d and remanded, No. PD-0577-18, 2019 WL 5587330 (Tex. Crim. App. Oct. 30, 2019); Mayer v. State, 494 S.W.3d 844, 850–51 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). The courts of appeals held that all that is required is that an operator know he was involved in some kind of accident. Curry, 569 S.W.3d at 168; Mayer, 494 S.W.3d at 850.

The court of criminal appeals granted review in Curry and split the difference. The state still has the option of alleging that the operator knew someone was injured or killed. Post-amendment, the state can avoid having to prove that, but only if it proves that the operator knew he was involved in an accident and knew that it was reasonably likely that someone was injured or killed. Curry, 2019 WL 5587330, at *5. The court’s application of mistake of fact to that element means that it is part of the circumstances surrounding the conduct to which the culpable mental state attaches. Curry, 2019 WL 5587330, at *7. See Rodriguez v. State, 538 S.W.3d 623, 630 (Tex. Crim. App. 2018) (mistake of fact inapplicable unless it negates a culpable mental state).

If the legislature’s intended response to Huffman was to create a duty to return and render aid when a reasonable person would believe injury was likely, it failed. As before, an operator’s sincere ignorance of the injury despite awareness of being in an “accident” should exonerate him. The same is now true of the operator’s ignorance of the reasonable likelihood of injury.

Unanimity. As noted above, Huffman v. State reaffirmed the gravamen of the offense as it considered whether unanimity was required on the three (at the time) duties listed under subsection (a). The court acknowledged prior holdings that separate victims authorize separate offenses for double jeopardy purposes. Huffman, 267 S.W.3d at 908. Next, the court examined these duties to decide if they gave rise to separate offenses. It concluded that an allegation that all three were violated was “effectively an allegation in the alternative” because stopping, returning, and remaining “are serial requirements that all relate, step-by-step, to what an actor must do with respect to the scene of an accident.” Huffman, 267 S.W.3d at 909. Unanimity is thus not required when multiple serial requirements are alleged. There is no reason to believe that what is now (a)(3), determining a person’s involvement and need for aid, would not be considered part of that series.

Also unsettled is whether the expansion of the circumstances surrounding the conduct to include knowing involvement “in an accident that . . . is reasonably likely to result in injury to or death of a person” creates a unanimity problem. It should not. The court in Curry recited the triggers for stopping and rendering aid disjunctively: “Now a driver must stop and render aid not only if the driver knows that he was involved in an accident and another person was injured or killed, but also if he knows that he was involved in an accident that was reasonably likely to result in injury to or the death of a person.” Curry, 2019 WL 5587330, at *5 (citations omitted). It did the same for the corollary situations in which the duty does not arise. Curry, 2019 WL 5587330, at *5. This makes sense, as the legislature intended the operator to stop and render aid under either circumstance. Excusing a failure due to the jury’s disagreement over whether the operator knew of the injury or merely knew it was reasonably likely to result would defeat that intent.

What should also be reasonably clear from extension of Huffman is that unanimity is not required with the conjunctive requirements of section 550.023 of the Texas Transportation Code, which forms part of the duty to remain under section 550.021(a)(4). The same should be true for the multiple duties or requirements of and within section 550.023(1) and (3). For example, section 550.023(3) requires provision of transportation for medical treatment, but only if treatment is apparently necessary or the injured person requests the transportation. Given the tenor of the statute, there is no reason to require unanimity as to how the duty to transport or arrange for transport arose.

Finally, although rarely (if ever) charged, unanimity should also not be required between any of the duties in section 550.021(a) and the duty in subsection (b) to comply with the requirements of subsection (a) “without obstructing traffic more than is necessary.” Tex. Transp. Code § 550.021(b). This is because the operative part of the statute is subsection (c), which says, “A person commits an offense if the person does not stop or does not comply with the requirements of this section.” Avoiding unnecessary obstruction is just another one of the requirements with which an operator must comply; it should not give rise to a separate charge.

Injury and Offense Level. The offense level is dictated by the level of injury sustained. Tex. Transp. Code § 550.021(c). The jury should be asked during the guilt phase to determine the level of injury: death, serious bodily injury (presumably not including death), or “injury to which [the other two] do[] not apply.” See Tex. Transp. Code § 550.021(c)(1), (c)(2). Note that the statute does not use the term bodily injury. Given the expansive definition of bodily injury and the presumed intent of the statute, the Committee recommends defining injury the same way. See Tex. Penal Code § 1.07(a)(8).

Basing offense levels on the injury sustained creates another problem. When the legislature created the duty to stop and render aid even if it turns out no person was injured (or even involved), it did not amend the statute to provide an offense level for that situation. When an accident results only in damage to a vehicle, it could be that the offense is more properly charged under Tex. Transp. Code § 550.022 (damage to attended or driven vehicle) or § 550.024 (unattended vehicle) because they are the more specific offenses. See Azeez v. State, 248 S.W.3d 182, 192 (Tex. Crim. App. 2008) (“[A] defendant has a due process right to be prosecuted under a ‘special’ statute that is in pari materia with a broader statute when these statutes irreconcilably conflict.”). Regardless, neither statute covers noninjury to pedestrians. In those cases, the statute’s failure to specify an offense level means the general provisions apply: the offense is a generic misdemeanor, Tex. Transp. Code § 542.301(b), punishable by fine of not less than $1 or more than $200. Tex. Transp. Code § 542.401.