Steve Morrison probably never knew what hit him that April afternoon in 2008. After the 52-year-old swimming-pool company owner eased off the brakes of his green Saturn and headed south down Hillcroft across Westpark, a Nissan Frontier driven by a 28-year-old Salvadoran immigrant named Rosa Villegas-Vatres slammed into him, caving in his driver's side door — and his rib cage — and killing him instantly.
That Villegas-Vatres blew through the red light on Westpark is not in question. Several witnesses said she did and she also admitted as much. In the immediate aftermath of the crash, Villegas-Vatres remained in her vehicle where a witness named Jonny Fuentes found her crying and saying she was in pain. She was also said to have been heard to express terror at the prospect of deportation, with good reason, as Villegas-Vatres has made some frightening enemies in her short life, people who just might retaliate against her or her family if she were returned to El Salvador.
She was transported to Memorial Hermann Southwest Hospital, and her blood was drawn. The presence of alcohol or drugs was not detected. Somewhere along the line, it was discovered that she had no driver's license or insurance.
She would eventually spend about a month in detention while her bond was arranged and her immigration status was resolved. ICE discovered that Villegas-Vatres was the holder of a so-called T-visa, meaning that she had been a victim of human traffickers and had testified against them. ICE released her, but even ICE couldn't save her should she be convicted of a felony, stripped of her T-visa and deported.
Villegas-Vatres claimed at the scene that her brakes failed, but Fuentes said in the official crash report that he heard brakes "squicking" just before the collision. Villegas-Vatres also claimed to be traveling only 20 to 25 miles per hour at impact, right around half the posted speed for that section of Westpark.
Sharon Smith, Steve Morrison's sister, doubts that claim. "I have the autopsy report, and I believe that the kinds of internal injuries Steve had couldn't have been caused if she was only going 25 miles an hour." (Of two lawyers who spoke with the Houston Press for this article, one opined that Smith was right and the other said that she was wrong.) Nevertheless, there was no way to prove that Villegas-Vatres had been traveling any faster than she said she had, at least not until HPD conducted a more thorough crash investigation.
Still, Officer R.D. Davidson of the Houston Police Department had all he needed from the accident scene and witness statements, not to mention Villegas-Vatres's own statement about running the light, to charge her with negligent homicide, a felony. And since negligent homicide is a felony, Davidson didn't bother writing Villegas-Vatres a ticket for running the red light or any other offenses she may have committed.
Morrison's surviving family — two children and his brother Frank Morrison and sister Sharon Smith — wanted Villegas-Vatres to be punished for what they saw as a crime. There followed a long, brutal roller-coaster ride through the judicial system. The first setback came when not long after the accident, a judge dropped the case for lack of evidence. But then Harris County Assistant District Attorney Brent Mayr refiled the case and referred it to a grand jury, which indicted Villegas-Vatres on a charge of criminally negligent homicide, a state jail felony with a penalty of six months to two years imprisonment without the possibility of parole, or, if her car could be proven to have been a deadly weapon, two to ten years, also with no parole.
In April of 2009, she was rearrested and her bond was set at $30,000. Villegas-Vatres hired an attorney and in the meantime, Immigration and Customs Enforcement put a hold on her to establish her immigration status.
But Villegas-Vatres never was stripped of her T-visa or deported. Last October, a year and a half after the wreck, the felony charge against her was dismissed before going to trial. It's a new day in the Harris County Criminal Justice Center, and new District Attorney Patricia Lykos has ordered that dozens of negligent homicide cases filed under her predecessor be reviewed. Thus far, Villegas-Vatres has not received so much as a ticket in this case.
Few areas of criminal law are more subjective than car crashes, especially when intoxicants are not a factor. Just deciding which charges to file, or indeed if any need to be filed at all, is a very difficult decision, prosecutors say. Six weeks into her new position as Chief of the Harris County District Attorney's Vehicular Crimes Section, Catherine Evans is learning just how hard these cases can be. "While I've worked on these cases before and am familiar with them, I've certainly never worked with them as intensively as I am now," she says. "And they are very, very difficult cases both on a personal and emotional level, because you are dealing with heartbroken people, and on a legal level, because of their complexity."
Evans rattles off some of the complicating factors. "What were the ambient conditions? What was the weather like? The lighting, the equipment on the different vehicles if you had different vehicles involved. You're also looking at the behavior and the actions of the victim, the other driver in the case, because it's often a situation of two people making a series of bad choices or acts, so you need to have an understanding of what caused it or how those events contributed to the crash."
Unlike many other areas of criminal law, Evans says, car crashes do not lend themselves to "bright-line rules." "Because you can always come up with an exception to that rule," she says. "I don't think you can say, 'You must have this number of acts of negligence,' or 'This number of miles over the speed limit is the bright-line rule.' This sort of case just doesn't lend itself to that. That's why the judgment decision of the people making those charging decisions is so important — because you are protecting both the rights of the victims and their families, but you are also doing justice by the potential suspects in the case as well."
According to former Harris County assistant district attorney Murray Newman, the problem with criminally negligent homicide cases is that the word "negligent" implies an "accident."
"Accidents happen every hour of every day, and the bad intent behind them varies," he points out. "We've all seen people flying down the highway and thought to ourselves that they would get themselves (or somebody else) killed. There's a big difference between that type of driving and the person who incorrectly estimates the timing of a stop light. The question becomes, 'Where do you draw the line?' on what is worthy of a traffic citation versus a felony charge."
A few years back, when Chuck Rosenthal was the district attorney, he helped create a specialized Vehicular Assault Team of DAs to help investigate lethal car crashes, whether or not those cases involved alcohol. Assistant DA Warren Diepraam then headed the DA's Vehicular Crimes Division, and his team of VAT prosecutors would make the scenes of fatal crashes and advise and aid police in their investigations. It's a policy she would like to change, but Evans says that they would often decide which charges to file then and there on the scene.
On his blog, Newman stated that the VAT teams were very useful in the drafting of warrants and helping to decide what charges to file, but that soon enough, the VAT team's decisions started to attract controversy. Few in the public would sympathize with drunk or otherwise intoxicated drivers, but when the sober started getting hit with felony charges, it was another matter. That controversy reached a flashpoint in the case of Pasadena schoolbus driver Jerry Cook, who ran over nine-year-old Ruth Young in a crosswalk one afternoon.
Diepraam initially charged Cook with murder, but after failing to win an indictment on that charge, the case was refiled as manslaughter and went to trial. Cook, who potentially faced 20 years in prison, hired top-shelf Houston defense attorneys Stanley Schneider and Robb Fickman, and won an acquittal in spite of an admitted impulse among some in the jury to reflexively want to punish someone for taking the life of such a sympathetic victim, no matter how accidentally that death came about.
After the trial, Diepraam told the Houston Chronicle that he prosecuted the case to "honor" the little girl. Local defense attorney and inveterate blogger Mark Bennett called the prosecution "an expensive, destructive publicity stunt."
"Honor the child?!?" wrote Bennett. "There is something primeval about the idea of 'honoring" the dead child by putting the driver in a box. He did all he could do. Nevertheless he killed a child. He will have to pay emotionally for that forever. The parents of the child had, to their great credit, forgiven him. I suppose that taking away his freedom, destroying his family, would be the 21st-century equivalent of propitiating the gods with a human sacrifice, but it's unworthy of us as human beings."
Bennett wrote that Diepraam's only tool [was] a hammer, [so] every problem look[ed] like a nail. "[A]nd if you're a rampant prosecutor with ambition every accident looks like a crime. Prosecuting the driver didn't honor the child; it dishonored her by using her name to serve the prosecutor's own ends."
Newman was a protégé of Diepraam's and regards him as a close friend, but tells the Press that "on that particular case he came on a little too tough." Newman does not see Diepraam's motivation as cynically as Bennett did; Newman thinks that Diepraam is simply extremely "victim-oriented."
"That being said, I personally wouldn't have gone after Mr. Cook as aggressively as he did when I was a prosecutor. It's tough when you are dealing with a dead child, and I think that weighed heavily on Warren. I think the backlash against him after that case unfairly diminished a lot of good work he did after that."
Diepraam departed the Harris County DA's office after Lykos's election and now runs the Montgomery County Vehicular Crimes unit. Some in the local law-enforcement community, including Newman, say that while Diepraam might have been a hard-liner, at least you knew where he stood.
Newman believes that the same cannot be said so far for the DA's office under Lykos. He is especially confounded by two more recent cases, both of which came about before Catherine Evans became Vehicular Crimes chief. In the case of Jeri Montgomery, the 24-year-old woman was convicted (by Brent Mayr, the prosecutor in the Villegas-Vatres case) of criminally negligent homicide after causing a wreck in part because she was talking on her cell phone while driving. She was sentenced to 30 days in jail as part of her ten years' probation, and Lykos herself chimed in, telling the Houston Chronicle that Montgomery's behavior had been both "selfish" and "narcissistic."
And then there's the October 2006 case of wrecker driver Sergio Gonzalez. A bit of a ne'er-do-well with two DWIs and a 2002 felony drug conviction on his rap sheet, Gonzalez had a trace amount of cocaine metabolite in his system on an October morning in 2006 when his speeding tow truck T-boned a car carrying an elderly couple home from church.
The couple — Leon and Maurine Roberson — were killed, and Diepraam charged Gonzalez first with manslaughter. In September of last year, Gonzalez pleaded down to criminally negligent homicide. He was sentenced to six months in jail, but because he had already served that much time, he was released immediately. And then a month later, his case was suddenly resurrected by the DA's office and dismissed, the conviction expunged.
The DA's office released a statement explaining the dismissal. Senior prosecutors, the statement read, had voiced concerns about Gonzalez's plea after it had been entered. According to the statement, while Gonzalez had been speeding, there was also evidence indicating that the Robersons had run a stop sign and were thus in part at fault. And thus, no matter his past convictions or his speeding (he was alleged to have been traveling 60 miles an hour in a 45 mph zone) or the traces of cocaine metabolite in his system, Gonzalez's driving did not demonstrate behavior "so egregious that it is a gross deviation from the standard of care an ordinary person would use."
The cocaine metabolite in his system was too minuscule to affect his driving, Gonzalez's attorney Todd Overstreet pointed out, or his client would have been charged with intoxication manslaughter. And 60 mph in a 45 zone was not seen as a gross deviation above an ordinary standard of care. What's more, the Robersons failed to yield. Thus, the statement continued, Gonzalez's actions "did not rise to the level of a criminal offense."
Despite the statement, Newman was flabbergasted with that decision. As he wrote on his blog, "While Miss Montgomery's talking on the cell phone got her a conviction and some nasty names from the D.A.'s Office, apparently the fact Mr. Gonzalez killed not one, but two people (who were leaving church) while speeding in a tow truck, and had cocaine metabolite in his system was somehow less egregious."
The statement from the DA's office went on to note that a review was ongoing of cases filed by Diepraam to determine how many others likewise "did not rise to the level of criminal offenses."
It was that very phrase that redoubled Frank Morrison's efforts to find justice for his dead brother.
From the outset, Brent Mayr told the Morrison family that theirs was a difficult case. The problem, Mayr explained in an e-mail to the Morrison family, was the physics. He wrote that while HPD's evidence-gathering had been exemplary, the accident reconstructionist simply could not explain how Morrison's Saturn and Villegas-Vatres's Frontier ended up where they did. "[The] numbers kept coming back as inconsistent or impossible," Mayr wrote. One of the calculations posited that it was Morrison who had been traveling at high speed, which was inconsistent with witness statements. And the reconstructionist found no skid marks or other such indicators to help him come up with an estimate of Villegas-Vatres's speed. There was also the matter of Villegas-Vatres's allegedly faulty brakes. Due to the extensive front-end damage to the Frontier, it could never be proven if her brakes had truly failed.
Typically in these kinds of cases, prosecutors like to have multiple bad actions — running a red light while speeding and talking on a cell phone or applying makeup, say.
"We're looking for acts of negligence of any kind and then we're looking to see if there are more than one, what is the severity of any of those or the combination," says Evans. "It may be that each individual act might be ordinary negligence, but when you put them all together they meet that standard of a gross deviation from an ordinary standard of care."
Here, about all that Mayr had was that Villegas-Vatres had run a red light and killed a man, but nevertheless, Mayr was able to persuade a grand jury to indict. (Morrison believed, and still believes, that the fact that Villegas-Vatres was unlicensed should have been taken into account. Odd as it may seem, unless the driver could be proven to be unable to pass the driving test, as opposed to never having bothered to take it, driving without a license is not a per se moving violation, and thus moot in attempting to establish criminal negligence.)
Once she was behind bars, Mayr asked the Morrison family for their input on how they would like to see him pursue the case. He had warned them that proving criminally negligent homicide would be difficult and told them that Villegas-Vatres's attorney had requested to plea down to a misdemeanor deadly conduct rap. Mayr warned the Morrisons again that theirs would be a very hard case to try. Not only would the Morrisons have to relive the events that led to Steve's death, but, Mayr said, the chance of a guilty verdict was not very high.
The Morrisons were undaunted. After discussing the matter in a family meeting, the Morrisons voted and it was unanimous. Frank Morrison told Mayr they wanted Villegas-Vatres to be prosecuted to the hilt, even if that meant she would be deported back to a potentially dangerous situation in El Salvador. "That way at least if she was found not guilty, she would have gone through the judicial system and had a fair trial," he says. "We would rather have seen that than to have her plead down to a misdemeanor and pay a fine or something. And we all felt that she was trying hard to get that plea bargain, because that T-visa would have been revoked if she had been convicted of a felony. They would have deported her. And my niece and nephew and both my sisters and I decided we would go for it all."
Like so many victims' families, the Morrisons wanted to see the perpetrator's demeanor. "We were gonna be able to see how this woman reacted," he says. "Did she hang her head? Was she sorry? Was she remorseful, or was this just another day for her?"
"We hear that a lot, especially in these types of cases where nobody got up in the morning and said, 'I think I'm gonna go kill somebody today,'" says Evans. "The families really want to know that there's remorse, that somebody understands the impact of what they've done."
Evans says that unfortunately, the criminal justice system by its very nature is ill equipped to allow for such gestures. Evans supposes that most defense attorneys would tell their clients not to contact the victims' families or to send a letter expressing remorse because that could be perceived as an expression of culpability.
But in this case that issue was moot, as Villegas-Vatres's day in court would never come. Last October, an extremely apologetic Mayr called Morrison to tell them that his superiors had reviewed the file and ordered the case dismissed. "He said, 'I'm so sorry to tell you this, but I am having to call many, many families and tell them the same thing. The current administration has said to get rid of these cases. It's illegal, start wipin' 'em out. The evidence isn't there.'"
(Civil negligence is a much easier standard to prove in court, but after estimating that Villegas-Vatres was likely not a wealthy woman, the family decided to forgo that option.)
"People make mistakes — that's why they call them accidents," says Frank Morrison. "I can live with accidents. Mistakes happen. But what really eats at me is that this woman is from El Salvador, she is here on a visa, she is not licensed to drive in the state of Texas, and for them to say that it doesn't rise to the level of criminal negligent homicide for her to drive a motor vehicle and kill somebody...She had no business driving a car."
While he took no part in this case, defense attorney Mark Bennett has another view. "A woman with no alcohol or drugs in her system ran a red light and killed a man. She says that her brakes failed, and there is no evidence to the contrary. She may or may not have been going faster than 20 mph (that's a solid whack; it's not hard to envision a 20 mph side impact killing a driver.) Charges against her are dropped. Put that way, with the wholly-irrelevant ("an immigrant," "no insurance"), the probably irrelevant ("no license")...filtered out, the DA's actions sounds downright reasonable."
Steve Morrison's death was a tragedy, Bennett continues, but not all tragedies are or should be crimes, nor do all accidents, even those that cause death, constitute criminal negligence. "Prosecuting someone for an accident doesn't make the victim whole; in fact, it doesn't help the victim at all."
Now that Catherine "Clutch" Evans (or so reads the nameplate on her desk) is the new chief of the District Attorney's Vehicular Crimes Section, she says that it is her intent to see that roller-coaster rides like that the Morrison family endured, with charges filed and dropped and refiled and dropped again, will be a thing of the past.
"The one concrete thing I would say we are going to do differently [from the Rosenthal administration] is that we want to have a full investigation so we don't have to shift courses so dramatically," she says. "It's incredibly difficult for the families involved, and it's really not fair to anybody unless there's some really clear and compelling need to do otherwise."
Evans says that the information that is readily available in the immediate aftermath of a fatal accident, before the accident reconstructionists make their calculations, generally isn't the complete picture. "You go out on a scene and you see the wreckage, you see what appears to be horrible damage, and even as a layperson I can say, 'Wow, that was obviously a high-speed collision.' And you get a witness account that says they were going really fast. That's valid information, but until you get an accident reconstructionist to come forward and give you a number, and then maybe you find out it wasn't how it appeared. Maybe speed wasn't an issue."
Given that, the Lykos administration has decided that it would be wiser in many cases not to file any charges until the investigations are complete. Evans says that while under some "exceptional circumstances" drivers in negligent homicide cases would be charged on the scene, in most cases, the DA's office intends henceforth to wait for the investigation to be complete.
Evans says she wants to put together a committee of prosecutors with technical knowledge of crashes — "the people from the VAT teams who have made the [accident] call-outs" — along with senior prosecutors, "people who have seen these types of cases and other types of cases and understand the trial issues involved in them."
In most cases, no arrest would be made until this committee had examined each incident from every legal and forensic angle. "There is so much gray area involved with [potential negligent homicide cases], frankly I don't think that there is anything wrong with going back to what [we] used to do, which is to get a bunch of people together and say, 'What do you think?'"
After all, she says, "You can have perfectly sane, perfectly rational people see these types of cases from very different perspectives, so I think a decision informed by folks of different perspectives is a smart idea."
Under this new system, it could very well have happened that Villegas-Vatres would never have been charged with anything other than traffic tickets. "The review group made a determination that it wasn't appropriate to move forward with a charge of criminally negligent homicide," says Evans. "Given that, then no, we wouldn't have charged her out at the scene. That doesn't necessarily mean that a mistake was made in this case on the front end, because you make a decision with the best information that you have available."
In January of 2008, 75-year-old La Porte man Nate Garrison was killed when he was hit by a car driven by Sima Bhakta, who ran a red light. Annette Vogel, Garrison's daughter, believes that Bhakta may also have been distracted by her cell phone, which showed that a call had come in one minute before the wreck. Bhakta was initially charged with criminally negligent homicide, but the case was dropped in the same review that disposed of the Morrison case.
Channel 2 did a report on the case, which aired at the same time Frank Morrison was trying to get some answers from the Harris County DA's office. In the report, Garrison's daughter complained of brusque treatment from Assistant DA Joni Vollman. "When I questioned her," Vogel told Channel 2's Robert Arnold, "she was very abrupt with me, said, 'This case does not rise to the level of a crime. We're dismissing it and I'm not going to argue the facts with you.'"
Meanwhile, towards the end of October or the beginning of November, after Mayr had told him that his bosses had ordered the Morrison case dropped, Morrison still had questions. Mayr had directed those inquiries up the chain of command.
"So I called up there and I wanted to go right to the top," Morrison remembers. He asked to speak to District Attorney Patricia Lykos. He was directed instead to Vollman, so he left her his name and number. He says he let a week or ten days go by with no word from Vollman. He remembers trying again on November 10. No luck. He tried again about a week later, and still had no luck.
Then his sister sent him a link to the December 2 Channel 2 report, and both the startling similarity of the facts of Garrison's death and Vollman's demeanor enraged him. He interpreted Vollman's words — "this case does not rise to the level of a crime" as meaning "We don't care that your dad is dead.'" And then, he says, she had the gall not to return his phone calls. Morrison fired off a letter to the Houston Chronicle, asking Vollman why she had not returned any of his three phone calls regarding his dead brother. The Chronicle didn't print the letter, nor did it respond in any other way.
Morrison's next move finally bore fruit. One afternoon, he simultaneously faxed the letter he wrote to the Chronicle to Vollman and both of her higher-ups in the DA's office — Jim Leitner and Lykos. "Lo and behold, the next morning I got a very apologetic call from Joni Vollman," he says. "She said she'd been out a lot. I said for five or six weeks?"
Vollman laid out the state's lack of a case again. She told Morrison that had Villegas-Vatres been weaving in and out of traffic or been drunk or drugged, that would have been one thing. But she hadn't, so now their best course was to try to see to it that Villegas-Vatres was ticketed for running the red light, driving without a license and driving without insurance.
Vollman told Morrison that the two of them could work together to find R.D. Davidson, the HPD officer who had worked the accident. But even that cold comfort has not been forthcoming: Morrison and Smith have each tried to track him down, and they both said that every number they have called has drawn responses like "I don't know who that is" and "We don't have anybody here by that name."
Morrison advised Vollman of his inability to find the cop and she told him to leave her his number. "I did, and that was about two weeks ago and I haven't heard back from her either."
Smith says that one cop spoke frankly to her. He said that it was very unlikely that anybody would be pulled off of patrol to track down a woman and cite her for one moving violation and two nonmoving violations committed almost two years ago. And now time is running out: If they don't track her down by the two-year anniversary of the crash — April 30, 2010 — she will be free and clear thanks to the statute of limitations.