Here's a quick hypothetical. Pretend you're back in law school. What offenses, if any???

Drunk pedestrian steps onto a public roadway at 3:00 a.m. to flag down an oncoming car. Driver of vehicle (occupied by driver and two child passengers)has to take evasive action to avoid the pedestrian causing one vehicle rollover. All occupants seriously injured and one child dies.

Forget the Class C misdemeanor stuff like P.I., Pedestrian failure to yield the right of way, etc.. I'm wondering if this might be Criminal Negligent Homicide, Injury to a Child, or at least Class A deadly conduct. Any others come to mind? Your thoughts?

Was this a major highway? How far into the lane of traffic was the drunk standing? Did the driver over-react and have any fault in causing the accident? I think it may only be a civil case.

It is a major highway. Not sure about how far the pedestrian had ventured into the highway or whether the driver acted inappropriately in any respect. Presumably, it was dark and he didn't see the pedestrian until it was to late to safely avoid him.

Suppose the only 2 possible outcomes were the death of the pedestrian or the death of the passenger ...

What if we flip it around and pretend that the driver was intoxicated?

Would the driver be looking at intoxication manslaughter even though a sober driver would not have avoided the accident? Or would we still be hypothetically blaming the pedestrian?

This is a real question; I hope that I don't sound like an insensitive jerk.

I had a case with a pedestrian wearing dark clothing walking in the middle of a two lane freeway access road and was killed by an intoxicated truck driver. No billed by the grand jury. Driver's intoxication did not cause the death.

In Lee's case, the criminal burden of proof leads me to believe that a no bill might be the proper outcome since I do not believe a trial jury would convict.

P.C. Section 49.08 provides, inter alia, that "A person commits an offense if the person operates a motor vehicle in a public place...and is intoxicated and by reason of that intoxicationcauses the death of another by accident or mistake."

"Causation" is addressed at P.C. 6.04 which provides "A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient."

Typically, the question of whether the intoxication caused the death of another would be a jury question but in your hypothetical you stated that "a sober driver would not have avoided the accident" so that would seem to be dispositive in this instance. Of course this might not keep the intoxicated driver from at least "looking at" intoxication manslaughter which is, as far as I'm concerned, a good enough reason not to drive drunk.

For what it's worth, in my hypothetical, the pedestrian was not struck or injured.

In drivers ed. and DDC you are taught that if a small animal jumps in the road, you should hit it instead of attempting to take unsafe evasive actions. A few cats, rabbits and at least one armadillo have had the misfortune of my drivers training on that issue. I have never heard anyone being told what to do if a large animal or a person jumps out in front of you.

I think a reasonable person will attempt evasive actions if a person jumps out in front of his car. And I think a reasonable person jumping in front of a moving car can expect to be struck or that the driver will take evasive measures. So, in that respect you have an argument that the drunk pedestrian was reckless or negligent in his actions.

Sounds like a conscious disregard of a substantial and unjustifiable risk that the driver's evasive action could result in a collision with another vehicle or loss of control of his vehicle, amounting to a gross deviation from the standard of care an ordinary person would exercise.