March 2022 Bike Case of the Month:  Curry v. State

Bill rides and races regularly.  He currently races with McKinney Velo racing in the 50+ category, in which he has placed in the top five the last 5 years.  Before bike racing, he was ranked as one of the top age group triathletes in Texas and the U.S.  He has competed in three World Age Group Triathlon Championships as well as two IM World Championships in Kona.  He sponsors local bike and triathlon clubs as well as races. With this blog, Bill is working to demystify the legal world of bicycle accidents to help cyclists understand their legal options.

Relevance To Cyclists:  A thorough investigation of a bike accident requires death/serious injury with potential criminal charges.

Issue Facing Cyclists – Lackadaisical Accident Investigation:  My clients are often surprised as to results and lack of investigation that was performed by the patrol officer.  They wonder why the officer failed to do a drug test (even if the other driver didn’t appear intoxicated), or failed to search out video footage, or failed to interview witnesses, etc.  This is common, and usually the officer will fail to state all the facts in his report. (However, their opinions are thankfully correct most of the time.)  

The reason for the “lick and a promise” investigation is the lack of police resources and the fact that the cyclist wasn’t killed or put in a coma.  If this happens, then the officers doing the investigation would be far more qualified and would spend a lot more time doing the investigation.  Trained “accident investigators” would be used, the reason being that if criminal charges are bought, the investigation must prove the State’s case under a higher duty of proof, that being “beyond a reasonable doubt.”  These investigators will generally leave no stone unturned in doing an investigation while the average patrol officer won’t even be aware of the stones that need to be looked under.  

Police officers are not discriminating against cyclists; the same thing happens with car accidents.  

Curry shows the type of case in which solid thorough investigations will be done, that is catastrophic injuries that might involve criminal charges. 


A cyclist was killed in a hit and run accident in March 2015. The victim was riding alone on a small road in La Porte, Texas.  His bike had a rear reflector and pedal reflectors. The collision occurred around 8:10 pm.  A police officer was dispatched to the scene about 12 minutes later.  The victim passed away 2-3 months later after what must have been a horrible death.  

The defendant was driving a pick-up owned by his employer.  He had been to dinner with his girlfriend and was on the way back to his house.  (His girlfriend was following behind in another car.)

The accident was investigated extensively by various officers, including 2 patrol officers, a constable, 4 “crash team” investigators and a detective. There was an actual reconstruction performed at night with the same type of pick-up and bike/reflectors which clearly showed that the defendant most definitely would have seen the bike, as well as measurements of gouge marks, correlation measurements of car and bike damage, etc.  

The only charge brought against the defendant was a felony charge of failing to stop and render aid.  The defendant’s theory was “I Didn’t Know I Hit Anyone; I Thought It Was a Beer Bottle.”  The jury found the defendant guilty.  His punishment was to be 6 years in prison.  

Legal Issue

The only issue on appeal was the trial court’s failure to include a jury instruction of “mistake of fact.”  The basis for the defendant’s mistake of fact argument was his contention that he did not know he hit anyone and instead thought someone threw a beer bottle at his car.  To that end, the defendant hired an expert who corroborated his beer bottle theory.  

The defense attorney requested a mistake of fact instruction and the prosecutor opposed it.  The trial court agreed with the prosecutor even though there was at least some evidence (albeit weak) to support the defendant’s argument.  There was, however, substantial evidence to the contrary based upon forensic testing and accident reconstruction that showed that the defendant absolutely would have seen the victim’s rear reflectors and that given the weight and size of the cyclist, he would have known the impact was certainly bigger than a beer bottle.  

The appellate court agreed with the defense and “remanded” (set the case back) to the trial court for a new trial.

In my opinion, the State’s evidence was overwhelming, and the jury would have come up with the same verdict even if the instruction had been included. The prosecutor should not have argued to keep the instruction out.

Will the case be retried?  Probably not because the defendant, having seen what would likely happen if there is a second trial, will now accept a plea bargain.

Other Points:

  1. Why wasn’t the defendant tried for something more serious?  Because there aren’t any laws on the books in Texas to support anything more serious.  If there were then certainly the prosecutor would have brought such charges.  Prosecutors don’t pull any punches.  
  1. Was there a civil case?  I’m certain there was at least a claim under the defendant’s liability insurance policy, and certainly, the limits (which I assume were low) would have been paid. The victim’s attorneys would also certainly have looked for compensation from the defendant’s employer, who owned the truck the defendant was driving.  Clearly, the defendant’s employer itself would not have been liable under the doctrine of respondeat superior because the defendant was not in the “course and scope” of his employment seeing that he was driving home after having dinner at a restaurant.  This leaves the question of coverage under the employer’s company auto policy.  I would think that there would be none, but there is a possibility.  I’m sure that the attorneys for the deceased thoroughly reviewed the policy.  


 1 – Curry v. State, 2021 Tex. App. LEXIS 9261:

2 –  Most Patrol Officers are not “accident investigators” even though they investigate accidents; the only accident investigation training they get is at the police academy and it’s very limited.  Trained accident investigators, on the other hand, take specialized courses, usually through Texas A&M. 

3 –  What if the defendant had stopped and rendered aid?  Probably not much.  The first investigating officer arrived at the scene about 15 minutes later and the victim’s injuries were substantial.  

4 –  Texas jurors are given a “Jury Charge” by the judge which contains written questions and instructions.  Attorneys do a lot of hemming and hawing about just what should be in the jury charge because the specific questions and instruction form the basis for what an attorney can “argue” to the jury and ask them to focus on.

5 –  In Texas, a “mistake of fact” is a “defense to prosecution if the actor, through a mistake, formed a reasonable belief about a matter of fact that negates the kind of culpability required for commission of the offense.”  

6 –  Arcane Point:  In both his opening and closing, the defendant’s attorney mentioned “mistake of fact” which means that the issue was “tried by consent.”  The prosecutor should have prevented any such mention of a mistake through the use of a “motion in limine.”  

7 –  Hindsight is 20-20:  It seems clear now that the prosecutor should not have objected to the charge, but unforeseen issues always come up quickly and unexpectedly during trial, and quick judgment calls must be made.  I’m certain that other attorneys in the same situation would have done the same thing.  

8 –  Respondeat Superior means the employer is liable for the negligent acts of its employee even if the employer did nothing wrong.  What must be shown is that the employee was negligent and in the “course and scope of employment.”