Woman not charged in accident that killed guitarist
Driver, who had no insurance or driver's license, was not criminally negligent, prosecutors say

By Jeremy Schwartz

AMERICAN-STATESMAN STAFF

Updated: 10:07 p.m. Saturday, June 11, 2011
Published: 8:20 p.m. Saturday, June 11, 2011

Travis County prosecutors have declined to criminally charge a 45-year-old woman who sped up as she tried to park her pickup, striking and killing 62-year-old Felipe Duran, who was strumming Christian songs on his guitar outside a market in February.

Instead, Juana Arrellano-Aviles, who was driving without a driver's license or insurance, received three traffic citations.

Austin attorney Steven Pastrana, who is representing Duran's family, said he is looking into the possibility of a civil lawsuit against the driver.

The family "was upset that this lady has been allowed to just walk on this," Pastrana said.

But prosecutors said the accident didn't rise to the level of a criminal offense.

"Under the definition of criminally negligent homicide, there was not evidence to support a conviction," said Buddy Meyer, trial bureau director for the Travis County district attorney's office.

The district attorney's office likewise declined to prosecute the driver on misdemeanor criminal charges, Meyer said.

Duran was a fixture in front of the Rundberg Lane market, where he built up a legion of admirers and friends with his guitar playing and discussions about religion. After his death, community donations and the Mexican consulate in Austin helped his family transfer his body to his native Mexico, Pastrana said.

Arellano-Aviles told police she was going to the store to send some money home to her family in Mexico and brought her 10-year-old son with her. The vehicle she normally drove was blocked in, so she took a pickup to La Mexicana market on Rundberg Lane, according to the Austin Police Department report on the crash, recently obtained by the American-Statesman.

She told police that she felt the truck move forward as she attempted to park. "At this time Juana realized she is getting close to the end of the space and where the man had his box of things," the report says. "She stepped hard and the truck moved fast and she hit the man. Juana realized she had pressed the accelerator pedal."

Initially, she told police that she might have been driving with both feet, but then said she drove with one.

In the report, Austin police Det. Pedro Garza concluded, "I could only speculate that Juana may have misjudged where the brake pedal was and panicked when the truck accelerated." She also told police that she had never obtained a driver's license and had been driving unlicensed for the past seven years.

The Austin Police Department does not inquire about immigration status as a matter of policy. Arellano-Aviles received Class C misdemeanor citations for reckless damage, failure to maintain financial responsibility and not having a driver's license, police said. According to Austin Municipal Court documents, Arellano-Aviles has received and paid seven traffic citations since 2003, including five tickets for not having a license and one for "failure to maintain assured clear distance," in which she paid a fine corresponding to a violation involving a collision. The most recent citation was issued in October.

Defense attorneys say criminal prosecutions are rare in vehicular killings that don't involve alcohol, drugs, texting or drag racing.

Prosecutors "would have to show a high degree of recklessness or conscious indifference," said San Antonio defense attorney Robert Kahn, who handles many vehicular homicide cases. "If it's just a question of someone being a real, real poor driver or making a bad decision, it's usually left for a civil case."

Under Texas law, a person is criminally negligent when he or she "ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur" and that not perceiving that risk "constitutes a gross deviation from the standard of care that an ordinary person would exercise."

Meyer said the statute means errors behind the wheel, even those resulting in death, aren't necessarily crimes.

"She clearly intended to step on the brake and not the accelerator," Meyer said. "Unfortunately she made a mistake."

Traffic fatalities involving pedestrians make up about a quarter of fatalities on Austin roads, according to police. Of the 192 traffic fatalities in Austin since 2008, 46 involved pedestrians. And about half of all traffic fatalities involve alcohol or speed violations, police say.

But police say identifying the number of deaths similar to Duran's is more difficult. Because he was killed in a parking lot, and thus on private property, Duran was counted as an accidental death, and not a traffic fatality.

jschwartz@statesman.com; 912-2942

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