Opinion issued October 30, 2018




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-17-00506-CR
                           ———————————
                    JUSTIN JAMES FORSYTH, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                    On Appeal from the 56th District Court
                          Galveston County, Texas
                      Trial Court Case No. 16-CR-1930


                         MEMORANDUM OPINION

      A jury convicted appellant, Justin James Forsyth, of intoxication

manslaughter and assessed his punishment at 15 years’ confinement and a $10,000

fine. In two issues on appeal, appellant contends that (1) the evidence was legally
insufficient to support his conviction and (2) the cumulative effect of prosecutorial

misconduct deprived him of due process. We affirm.

                                  BACKGROUND

      On a Sunday afternoon, July 17, 2015, four-year-old A.D. [“the child”] was

playing with a toy truck in a ditch near his house on 10th Street in Bacliff, Texas.

There were several other neighborhood children playing outside and several adults

watching them play.

      A neighbor, Kelly Willey, was outside with his brother, Jacob Willey, and

Jerod Douthit, when he heard the rev of a motorcycle. Jacob testified that he saw

appellant driving a motorcycle, turning onto 10th street from Jackson Street, and

almost clipping the stop sign in the process. Kelley saw that appellant was “going

kind of recklessly” and driving on the wrong side of the street. Jacob noticed that

appellant “didn’t seem as if he knew what he was doing exactly” and was driving

in the middle of the street, while leaning hard to the left.

      At that time, the child pushed his toy truck into the road from the left side

and was struck by appellant. The child’s mother, Edna, testified that

      [Appellant] was on the wrong side of the road, and everyone was
      yelling at him. He kept driving. His focus was on the road but
      looking down like if it was like he was rolling a teddy bear. He could
      hear everybody screaming, but he kept going like he did not know
      what he was doing. His eyes was looking down at the road.




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Another witness, the child’s great-aunt Maria, testified that appellant never reacted,

braked, or tried to avoid the child.

         Kelley ran down toward the accident and helped Edna call 911. He then

approached appellant, smelling “faint alcohol.” Appellant tried to leave the scene,

saying, “I’ve got to go, I’ve got to go,” but Jacob told him, “No, man, you messed

up; you’ve got to stay here.” Kelley and Jacob made sure that appellant remained

at the scene.

         Deputy F. Boas, who was dispatched to the scene, testified that appellant’s

eyes were red and glassy, he smelled like alcohol, and his speech was slurred.

Boas administered two standard field sobriety tests to appellant, both of which

appellant failed. Based on this information, appellant was arrested.

         The child was transferred by EMS to a nearby hospital, but he died of head

injuries on the way. Appellant was also transported to the hospital with a broken

ankle. The paramedic, J. Grimm, testified that appellant seemed to be under the

influence of something. Appellant told Grimm that he would beat the charge

because he was not intoxicated. However, on the way to the hospital, appellant

admitted to Grim that he had been drinking, but stated that the accident was not his

fault.

         A doctor at the hospital believed that appellant was intoxicated “because I

could smell alcohol on his breath,” so he ordered a blood-alcohol content test. The


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toxicology result of this test showed a blood-alcohol level of 0.260. Blood taken

later by police pursuant to a search warrant showed appellant’s blood-alcohol level

to be approximately 0.23, or almost three times the legal limit of 0.08.

      The State’s accident reconstructionist, Deputy Creech, testified that 10 th

street was approximately 19 feet wide and that the area of impact was 8 feet from

the left side of the road. Creech stated that vehicles were supposed to be on the

right side of the road, especially on an unmarked roadway. Creech opined that

appellant’s intoxication caused the crash, stating:

      In this case, it’s my opinion that, had he been sober, he would have
      been on the right side of the roadway. He would have perceived the
      child—the children out there and would have slowed down and then
      been prepared to react if they had maybe come out of the roadway.
      And had he been on the right half of the roadway where he belonged,
      then even if a child had come out into the street in this instance they
      would not have collided.

      ....

      [H]ad [appellant] not been intoxicated, he could have perceived the
      danger, he could have slowed down, he could have avoided the
      situation.

      After hearing the evidence detailed above, a jury convicted appellant of

intoxication manslaughter, found a deadly weapon allegation to be true, and

assessed punishment at 15 years’ confinement.         Appellant brings this appeal,

asserting two issues.




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                      INTOXICATION MANSLAUGHTER

      In issue one, appellant contends that the evidence is legally insufficient to

establish the necessary elements of intoxication manslaughter.             Specifically,

appellant contends that the evidence is insufficient to show that his intoxication

was the cause of the child’s death.

Standard of Review and Applicable Law

      We review the sufficiency of the evidence to support a criminal conviction

by determining whether, after viewing the evidence in the light most favorable to

the verdict, the trier of fact was justified in rationally finding the essential elements

of the crime beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 902

(Tex. Crim. App. 2010). We measure the evidence “by the elements of the offense

as defined by the hypothetically correct jury charge for the case.” Malik v. State,

953 S.W.2d 234, 240 (Tex. Crim. App. 1997). As the exclusive judge of the facts,

the jury may believe or disbelieve all or any part of a witness’s testimony.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We presume that

the factfinder resolved any conflicting inferences in favor of the verdict, and we

defer to that resolution. See Brooks, 323 S.W.3d at 922. On appeal we may not re-

evaluate the weight and credibility of the record evidence and thereby substitute

our own judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742,

750 (Tex. Crim. App. 2007). For purposes of proving guilt beyond a reasonable


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doubt, direct and circumstantial evidence are equally probative. Jones v. State, 458

S.W.3d 625, 630 (Tex. App. —Houston [1st Dist.] 2015, pet. ref’d).

      A person commits the offense of intoxication manslaughter if the person: (1)

operates a motor vehicle in a public place; (2) is intoxicated; and (3) by reason of

that intoxication causes the death of another by accident or mistake. See TEX.

PENAL CODE § 49.08. Section 6.04 of the Texas Penal Code 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.” TEX. PENAL CODE § 6.04(a).

Analysis

      Appellant does not dispute that he was intoxicated,1 but argues that his

intoxication did not cause the child’s death. Appellant argues that, “[c]ontrary to

the State’s argument that [the child] died because an intoxicated condition caused

Appellant to drive on the wrong side of the street, the record shows that Appellant

drove to the center or slightly left of center because Appellant was taking evasive

action to protect several children who were playing in the street.”




1
      Indeed, appellant’s blood-alcohol content, when take by medical personnel two
      hours after the accident, was 0.26, and when taken pursuant to a search warrant
      after that appellant’s blood-alcohol content was 0.23.
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      In support, appellant points to his own testimony, in which he claimed that

he revved his engine, which was louder than his horn, to warn several children who

were playing on the right side of the street, and that he drove to the left of the

center line to avoid those children.      As he did so, he claimed that the child

unexpectedly pushed his toy car into the street from the left side of the street, and

ran into appellant’s motorcycle.

      Appellant also relies on the testimony of his expert witness, Richard

Palacios, who testified that appellant showed very quick reaction time. Palacios

testified that, “in less than a second, there’s interaction between the child and the

motorcycle and the motorcycle is laid over.”        Palacios theorized that it was

“possible” that the child struck the motorcycle, rather than the motorcycle striking

the child, and that a child running into the motorcycle would cause an alert driver

to quickly lay the bike over to the other side.

      Forsyth, however, admitted that, other than appellant’s own statement, there

was no evidence that there were children on the right side of the road who caused

appellant to swerve to the left side of the road.

      Appellant, however, contends that “[t]he only reasonable conclusion is that

[he] took evasive action to protect the [other] children playing on the street.” As

the factfinder, the jury was entitled to disbelieve appellant’s testimony that he

swerved to the left to avoid children playing on the right side of the street. See


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Chambers, 805 S.W.2d at 461 (stating jury may believe or disbelieve all or any

part of witness’s testimony). Instead, the jury was entitled to believe Creech, the

State’s accident reconstructionist, who testified that, in his opinion, if appellant had

been sober he would have been driving on the right side of the roadway, he would

have seen the child, he would have slowed down, he would have prepared to react,

and he would not have collided with the child. The jury also could have believed

the eyewitness, Kelley, who testified that appellant was driving recklessly, almost

clipped a stop sign when he entered the street, and was, from the time of turning

onto the street, driving on the left side of the road. There was also evidence that

appellant never braked, tried to slow down, or stopped until after contact with the

child. See Kiciemba v. State, 310 S.W.3d 460, 463 (Tex. Crim. App. 2010) (“[A]

driver’s failure to brake also provides some evidence that the accident was caused

by intoxication”).

      While the jury also heard evidence that another factor may have contributed

to the child’s injuries, i.e., the child’s entering the roadway from the left side of the

street, a rational jury could conclude that this concurrent cause was not sufficient

to produce the child’s death. See TEX. PENAL CODE § 6.04(a) (holding that person

is criminally responsible if death would not have occurred but for her conduct,

operating either alone or concurrently with another cause, unless the concurrent




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cause was sufficient to produce the result and the conduct of the actor clearly

insufficient).

       Based on the evidence presented, we conclude that a rational jury could have

found beyond a reasonable doubt that the child’s death would not have occurred

but for appellant’s driving while intoxicated, operating either alone or concurrently

with another cause, and that this concurrent cause was insufficient to produce the

child’s death. Thus, we conclude that the evidence was sufficient to support the

jury’s finding that appellant’s driving a motor vehicle in a public place while

intoxicated caused the child’s death. See Wooten v. State, 267 S.W.3d 289, 296

(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (holding that when intoxicated

driver alleged that other road conditions caused accident, “even if other factors

contributed in some way to the accident, these factors were not clearly sufficient to

cause the fatalities in the case”); Martinez v. State, 66 S.W.3d 467, 469–70 (Tex.

App.—Houston [1st Dist.] 2001, pet. ref’d) (holding sufficient evidence supported

conclusion that truck driver’s intoxication caused death of victims despite alleged

improper loading and safety violations of truck).

       We overrule appellant’s first issue.

                      PROSECUTORIAL MISCONDUCT

       In issue two, appellant contends that he was denied due process because of

prosecutorial misconduct.      Specifically, he argues that (1) “the prosecutor


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presented a series of statements to the jury[,] which had the effect of vouching for

the testimony of witnesses who might prove her case,” and (2) called two

witnesses primarily for the purpose of impeaching them. The State argues that

these issues are waived because appellant did not object at trial. We agree with the

State.

         Prosecutorial misconduct is an independent basis for objection that must be

specifically urged to preserve error. Hajjar v. State, 176 S.W.3d 554, 566 (Tex.

App. —Houston [1st Dist.] 2004, pet. ref’d); see also Temple v. State, 342 S.W.3d

572, 603 n.10 (Tex. App. —Houston [14th Dist.] 2010), aff’d, 390 S.W.3d 341

(Tex. Crim. App. 2013) (holding same); Perkins v. State, 902 S.W.2d 88, 96 (Tex.

App.-—El Paso 1995, pet. ref’d) (holding appellant’s failure to object on the basis

of prosecutorial misconduct waived that asserted error on appeal). To preserve an

alleged prosecutorial-misconduct error, a defendant must make a timely and

specific objection, request an instruction to disregard the matter improperly placed

before the jury, and move for a mistrial. Penry v. State, 903 S.W.2d 715, 764 (Tex.

Crim. App. 1995). Appellant did none of this, thus error is waived. See Clark v.

State, 365 S.W.3d 333, 340 (Tex. Crim. App. 2012) (holding that evidentiary

objections at trial did not present trial court with opportunity to rule on due process

claim raised on appeal, thus due process claim was waived.).




                                          10
      While acknowledging that “[a]ppellant did not object to the evidence at

trial,” appellant, relying on Rogers v. State, 725 S.W.2d 350 (Tex. App.—Houston

[1st Dist.] 1987, no pet.), contends that preservation was not required. Rogers

involved flagrant and repeated misconduct by the prosecutor, who repeatedly made

side-bar remarks and suggested inflammatory facts that lacked evidentiary support.

Id. at 358–61. The Court concluded that the prosecutor acted in bad faith and that

her behavior “could serve no purpose other than to inflame and prejudice the minds

of the jurors.” Id. at 360. Based on these facts, the defendant was allowed to raise

prosecutorial misconduct as a point of error on appeal, even though he failed to

preserve the point of error. Id. at 359–60. In so holding, this Court stated:

      Whe[n] there is serious and continuing prosecutorial misconduct that
      undermines the reliability of the fact[–]finding process or, even worse,
      transforms the trial into a farce and mockery of justice, as occurred
      here, resulting in deprivation of fundamental fairness and due process
      of law, the defendant is entitled to a new trial even though few
      objections have been perfected. Id.

      We cannot say that the prosecutor’s conduct in this case was the sort of

flagrant repeated misconduct at issue in Rogers or that the conduct deprived

appellant of fundamental fairness or due process of law. As such, appellant’s

failure to object to prosecutorial misconduct waives that issue. See Wilson v. State,

No. 01-16-00256-CR, 2017 WL 2590292, at *8 (Tex. App.—Houston [1st Dist.]

June 15, 2017, no pet.) (mem. op., not designated for publication) (holding that

trial objection was required to argue on appeal that prosecutors committed
                                          11
misconduct in repeatedly emphasizing HIV status of appellant, improperly

bolstering complainant, and bypassing rules of evidence to elicit improper

testimony).

      We overrule issue two.

                                CONCLUSION

      We affirm the trial court’s judgment.



                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Brown and Caughey.

Do not publish. TEX. R. APP. P. 47.2(b).




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