“Whether the Court of Appeals properly protected appellant’s right to an instruction on a lesser included offense by failing to consider his testimony regarding an intervening circumstance that caused the accident resulting in death?”
Simms was convicted of aggravated assault. He was driving roughly 60 mph in a 35 mph, two-lane tunnel when he collided head-on with a van. The driver later died. Simms was charged with recklessly causing serious bodily injury by failing to control speed, maintain a single lane of traffic, and keep a proper lookout. Simms admitted to speeding and acknowledged that the video from the tunnel showed his vehicle crossed into the oncoming lane. However, he said he did not remember the collision and assumed he passed out before his car changed lanes and the accelerator was depressed. The trial court denied his request for a lesser-included instruction on deadly conduct.
On appeal, Simms argued that his testimony that he lost consciousness before the collision, if believed, was affirmative evidence that he was guilty only of placing the victim in imminent danger of serious bodily injury. Losing consciousness, he argued, would have prevented a culpable mental state as to the injury that occurred afterward. The State challenged the evidence that Simms passed out, calling it speculation based on his claimed lack of memory. But it also argued there is no evidence that appellant’s speeding did not cause the victim’s death. If, as Simms argued, he recklessly placed the victim in danger of imminent serious bodily injury, he cannot be guilty only of deadly conduct when that serious bodily injury occurs. The court of appeals agreed with the State.
In his petition, Simms alleges that his loss of consciousness was “an intervening factor” that entitled him to an instruction on deadly conduct.