                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-09-00151-CR


CHRISTOPHER BLAKE ALAMI                                                APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


                                     ------------

        FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

                                     ------------

                                    OPINION

                                     ------------

                                  I. INTRODUCTION

      Appellant Christopher Blake Alami appeals his conviction for felony

murder. In five points, Alami argues that the evidence is legally and factually

insufficient to support his conviction and that the trial court abused its discretion

by overruling his rule 403 objections and his motion for a mistrial. We will affirm.
                   II. FACTUAL AND PROCEDURAL BACKGROUND

      On June 13, 2008, at around 7:45 p.m., Alami’s mother dropped Alami off

at a Buffalo Wild Wings (the ―restaurant‖) located in South Fort Worth. Alami met

Madhuri Kumar at the restaurant, where they both consumed alcohol before

leaving at around 10:55 p.m. in Kumar’s Lexus.          Alami was driving Kumar’s

Lexus northbound on Interstate 35 West with Kumar in the passenger seat when

the left front corner of the Lexus struck the right rear corner of a Hyundai being

driven by Sharmon Teel in the center lane of the roadway. Teel maintained

control of her Hyundai, but the Lexus passed by the right side of Teel’s vehicle,

overcorrected to the right side of the roadway, crossed onto the right shoulder,

overcorrected to the left in an attempt to move back onto the roadway, started

skidding and rotating counterclockwise across the roadway, and collided into a

barrier on the left side of the roadway. The passenger side of the Lexus made

contact with the barrier, crushing the center post of the vehicle into Kumar and

pushing Kumar towards the center of the vehicle.          Kumar sustained severe

internal injuries and died as a result of the collision. Alami suffered a jaw fracture

and a fracture in the back of his head.

      Kayden Bathory, an emergency medical technician, arrived at the scene

and helped Alami exit the wrecked Lexus. Bathory smelled alcohol coming from

Alami’s breath and asked him how much he had had to drink. Alami responded,

―Too much.‖




                                          2
      Officer Vincent Brown also arrived on the scene and spoke to Alami, who

was leaning against the center concrete dividing wall. Officer Brown noticed that

Alami had red, bloodshot eyes; slow, slurred speech; and a moderate smell of

alcohol on his breath. Alami’s condition gave Officer Brown the indication that

Alami ―had possibly been drinking and maybe had been intoxicated.‖

      Bathory helped transfer Alami to a different ambulance, where Nick

Lowery, a paramedic, examined Alami.        Lowery smelled an alcohol-like odor

coming from Alami and questioned him about how much he had had to drink.

Alami responded, ―Too much.‖

      Alami was transported to John Peter Smith Hospital. There, he refused

Officer Jonathan McKee’s request to provide a blood sample, so Officer McKee

initiated procedures for a mandatory blood draw, which Nurse Denise Nemia

performed. Test results showed that Alami had a blood-alcohol content of 0.19

grams of alcohol per 100 millimeters of blood.

      The State indicted Alami for felony murder, alleging felony DWI as the

underlying felony offense. Specifically, the indictment alleged in relevant part

that on June 13, 2008, Alami did

      then and there commit a felony, to-wit: driving while intoxicated,
      after having been previously convicted two times of the offense of
      driving while intoxicated and in the course of and in furtherance of
      the commission of said felony, he committed or attempted to commit
      an act clearly dangerous to human life, to-wit: by causing the motor
      vehicle he was driving and operating to collide with and strike
      another motor vehicle which resulted in the defendant’s losing
      control of the motor vehicle he was driving and operating which did
      cause it to collide with a concrete barrier and guardrail which caused


                                        3
       the death of Madhuri Kumar who was an occupant in the motor
       vehicle being driven and operated by the defendant.

A jury convicted Alami of felony murder and assessed his punishment at forty

years’ confinement.    The trial court sentenced him accordingly.      This appeal

followed.

                           III. EVIDENTIARY SUFFICIENCY

       In his first and second points, Alami argues that the evidence is legally and

factually insufficient to support his conviction.      He contends that several

witnesses—who were also present at the restaurant on June 13, 2008—testified

that he appeared to be sober prior to when he and Kumar left the restaurant and

that he did not commit an act clearly dangerous to human life that caused

Kumar’s death because he ―tried to avoid Ms. Teel’s slower moving vehicle and

by doing so overcorrected the Lexus, which caused it to slide into the safety

barrier.‖

       The court of criminal appeals recently held that there is ―no meaningful

distinction between the Jackson v. Virginia legal-sufficiency standard and the

Clewis factual-sufficiency standard‖ and that ―the Jackson v. Virginia standard is

the only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense that the State

is required to prove beyond a reasonable doubt. All other cases to the contrary,

including Clewis, are overruled.‖ See Brooks v. State, 323 S.W.3d 893, 902, 912




                                         4
(Tex. Crim. App. 2010). Accordingly, we will apply the same standard of review

to all of Appellant’s sufficiency complaints.

      A.      Standard of Review

      In our due process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the

prosecution in order to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007). This standard gives full play to the

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The

trier of fact is the sole judge of the weight and credibility of the evidence. See

Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270

S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009).

Thus, when performing a sufficiency review, we may not re-evaluate the weight

and credibility of the evidence and substitute our judgment for that of the

factfinder.   Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

Instead, we ―determine whether the necessary inferences are reasonable based

upon the combined and cumulative force of all the evidence when viewed in the

light most favorable to the verdict.‖ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.

Crim. App. 2007). We must presume that the factfinder resolved any conflicting


                                          5
inferences in favor of the prosecution and defer to that resolution. Jackson, 443

U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

      B.     DWI and Felony Murder

      A person commits the offense of DWI ―if the person is intoxicated while

operating a motor vehicle in a public place.‖ Tex. Penal Code Ann. § 49.04(a)

(Vernon 2003).       ―Intoxicated‖ is defined in part as having an alcohol

concentration of 0.08 or more. Id. § 49.01(2)(B) (Vernon 2003). Under chapter

49 of the penal code, proof of a culpable mental state is not required for a DWI

conviction. Brown v. State, 290 S.W.3d 247, 249 (Tex. App.—Fort Worth 2009,

pet. ref’d) (citing penal code section 49.11, which provides in part that ―proof of a

culpable mental state is not required for conviction of an offense under this

chapter‖).

      An offense under section 49.04 is a third-degree felony if the defendant

has previously been convicted two times of any offense relating to the operating

of a motor vehicle while intoxicated.        Tex. Penal Code Ann. § 49.09(b)(2)

(Vernon Supp. 2010). ―The Legislature has plainly dispensed with proof of a

culpable mental state for felony DWI.‖ Lomax v. State, 233 S.W.3d 302, 304 n.6

(Tex. Crim. App. 2007) (citing penal code section 49.11).

      A person commits felony murder if he ―commits or attempts to commit a

felony, other than manslaughter, and in the course of and in furtherance of the

commission or attempt, or in the immediate flight from the commission or

attempt, he commits or attempts to commit an act clearly dangerous to human


                                         6
life that causes the death of an individual.‖ Tex. Penal Code Ann. § 19.02(b)(3)

(Vernon 2003). A felony DWI offense may serve as the underlying felony in a

felony-murder prosecution:

      [D]eciding that Section 19.02(b)(3) dispenses with a culpable mental
      state is consistent with the historical purpose of the felony-murder
      rule, the very essence of which is to make a person guilty of an
      ―unintentional‖ murder when he causes another person’s death
      during the commission of some type of a felony. We hold that
      Section 19.02(b)(3) plainly dispenses with a culpable mental state.

Lomax, 233 S.W.3d at 305 (citations omitted), 309 (―The plain language of

Section 19.02(b)(3) also does not exclude felony DWI as an underlying felony for

a felony-murder prosecution, and we must understand the Legislature to have

meant what the plain language of Section 19.02(b)(3) expresses.‖); see

Paniagua v. State, No. 13-08-00228-CR, 2010 WL 672886, at *2–4 (Tex. App.—

Corpus Christi Feb. 25, 2010, no pet.) (mem. op., not designated for publication);

Talamantes v. State, No. 03-07-00668-CR, 2009 WL 416521, at *1 (Tex. App.—

Austin Feb. 19, 2009, pet. ref’d) (mem. op., not designated for publication).

      C.    Sufficient Evidence

      The record demonstrates that Alami met Kumar at the restaurant and that

several individuals, including Chalon Ybarra, Ann Johnston, Karen Hendricks,

and Stacy Fischer, observed Alami consume alcohol while there before leaving

with Kumar. Fischer testified that she thought Alami had consumed two beers

and two shots of cinnamon Schnapps in a ninety-minute period.




                                         7
       After leaving the restaurant, the left front corner of the Lexus that Alami

was driving northbound on Interstate 35 West struck the right rear corner of a

Hyundai that was being driven by Teel in the center lane of the roadway. Teel,

who was traveling at the speed limit of sixty miles per hour, felt a ―jolt‖ when her

vehicle was struck, and she and Matt Harris, who was driving a vehicle behind

Teel, observed the Lexus cross onto the right shoulder, move back to the left and

onto the roadway, start skidding across the roadway, and collide into a barrier on

the left side of the roadway. The collision with the barrier crushed the center post

of the vehicle into Kumar, who died from severe internal injuries. Dr. Nizam

Peerwani performed Kumar’s autopsy and identified the cause of Kumar’s death

as blunt force trauma.

       According to both Bathory and Lowery, after the incident, Alami said that

he had consumed ―[t]oo much‖ to drink. Officer Brown observed that Alami had

red, bloodshot eyes; slow, slurred speech; and a moderate smell of alcohol on

his breath. Mandatory blood test results showed that Alami had a blood-alcohol

content of .19 grams of alcohol per 100 millimeters of blood, which was over

twice the legal limit. Officer Brown opined that Alami’s intoxicated driving had

caused the accident. See Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim.

App. 2010) (―Being intoxicated at the scene of a traffic accident in which the actor

was a driver is some circumstantial evidence that the actor’s intoxication caused

the accident . . . .‖).




                                         8
      Deputy Laura Watts testified as an expert on fingerprint identification and

concluded that the right thumbprint on a set of fingerprints that she had obtained

from Alami before trial matched the right thumbprints found on two of Alami’s

prior judgments of conviction for DWI.

      Alami challenges the sufficiency of the evidence to show that he was

intoxicated, arguing that several witnesses testified that he ―appeared to be

sober‖ prior to leaving the restaurant with Kumar.1 But Max Courtney, an expert

who testified on behalf of the State, opined that a person’s appearance is not a

reliable factor in determining whether that person is intoxicated and that a person

who consumes a large amount of alcohol could appear not to be intoxicated to a

casual observer. He testified on direct examination,

      Q. The next thing I want to ask you about is the subjective
      evaluation of intoxication. How reliable is it to use, as your
      determining factor, how a person looks to determine if they’re
      intoxicated?

      A. Not accurate.

      Q. Not accurate. Have there actually been some studies that have
      looked at that?

      A. There have been.

      Q. And you’re familiar with the Widmark study?

      A. Yes.

      Q. And what did the Widmark study involve?


      1
       These witnesses included Ybarra, Johnston, Hendricks, and Fischer.


                                         9
      A. It involved - - this was, I believe, in Sweden where they had to - -
      in a DWI case they had to take the person before a trained physician
      and that physician would then evaluate the person and see if they
      could come to the conclusion that they were intoxicated. Basically
      the bottom line of that study was that a person with an alcohol
      concentration of .15, the physicians were only able to correctly
      diagnose the person as intoxicated in half of the cases.

      Q. So in 50 percent of the time physicians misdiagnosed someone
      at a .15, almost two times the per se level as being intoxicated?

      A. Correct.

          ....

      Q. And can you explain why is it that a person who’s consumed a
      large amount of alcohol, how can they, to a casual observer, appear
      to be normal?

      A. By what we call masking.

      Q. And what is that?

      A. Masking is an ability to - - it’s a learned behavior wherein you’re
      able to hide your symptoms of intoxication from the observer.

      Q. Okay. And the more common it is for a person to consume
      alcohol is their ability to mask, likewise, probably greater?

      A. Yes, sir.

Moreover, the mandatory blood test results showed that Alami had a blood-

alcohol content of .19 grams of alcohol per 100 millimeters of blood, which was

over twice the legal limit.

      Alami argues that he did not commit an act clearly dangerous to human life

because he tried to avoid Teel’s vehicle.      But Timothy Lovett, an accident

reconstructionist who performed a post-collision inspection of the Lexus and



                                        10
gave opinions regarding the incident, opined that the Lexus was in good working

order before the incident, that the driver of the Lexus was at fault in causing the

accident, that this is the type of automobile crash that he would expect to see

when an intoxicated driver is involved, and that a sober person could have

avoided the collision.   Significantly, using the ―yaw marks‖ left behind by the

skidding Lexus, Lovett calculated the speed of the vehicle as it crossed from the

right shoulder back onto the roadway and began to skid and rotate

counterclockwise (which was after it had contacted Teel’s vehicle) at between

eighty and eighty-seven miles per hour. In light of this and the above evidence, a

rational jury could have determined beyond a reasonable doubt that Alami

committed an act clearly dangerous to human life when he drove the Lexus at an

excessive rate of speed and caused the speeding Lexus to contact Teel’s

vehicle, resulting in Alami’s losing control of the Lexus and causing it to collide

into the barrier.

       To the extent that Alami argues that the evidence is insufficient to show

that he committed an act clearly dangerous to human life because there is

contrary evidence that he merely overcorrected the Lexus, the jury was free to

resolve this conflict in the evidence, if any, in favor of the State, which it did. See

Cain v. State, 958 S.W.2d 404, 409–10 (Tex. Crim. App. 1997).

       The concurrence disagrees that a felony DWI offense may serve as the

underlying felony in a felony-murder prosecution and urges that statutory

changes be made by the legislature. The majority follows the law as interpreted


                                          11
by the court of criminal appeals in Lomax and leaves the decision to amend the

law to the legislature.

      Viewing the evidence in the light most favorable to the prosecution, a

rational trier of fact could have found beyond a reasonable doubt that Alami

committed felony DWI and, in the course of and in furtherance of the commission

of felony DWI, committed an act clearly dangerous to human life when he caused

the speeding Lexus to contact Teel’s vehicle, which resulted in Alami’s losing

control of his vehicle and caused the vehicle to ultimately collide with a concrete

barrier, causing Kumar’s death. See Jackson, 443 U.S. at 319, 99 S. Ct. at

2789; Clayton, 235 S.W.3d at 778; see also Tex. Penal Code Ann. § 19.02(b)(3).

Accordingly, we hold that the evidence is sufficient to support Alami’s conviction

for felony murder. We overrule Alami’s first and second points.

                            IV. RULE 403 OBJECTIONS

      In his third point, Alami argues that the trial court abused its discretion by

overruling his rule 403 objection to the admission of State’s Exhibit 11, a post-

collision photograph showing part of the interior of Kumar’s Lexus, including a

deceased Kumar lying in the passenger seat.2 In his fourth point, Alami argues

that the trial court abused its discretion by admitting evidence of his prior

convictions (State’s Exhibits 39 and 40) over his rule 403 objection.3


      2
       We hold that Alami preserved this point for appellate review.
      3
       We hold that Alami preserved this point for appellate review.


                                        12
      Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence. Tex. R. Evid. 403. Once appellant makes

a rule 403 objection, the trial court must weigh the probative value of the

evidence to determine if it is substantially outweighed by its potential for unfair

prejudice. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). A

rule 403 balancing test includes the following factors: (1) the inherent probative

force of the proffered item of evidence along with (2) the proponent’s need for

that evidence against (3) any tendency of the evidence to suggest decision on an

improper basis, (4) any tendency of the evidence to confuse or distract the jury

from the main issues, (5) any tendency of the evidence to be given undue weight

by a jury that has not been equipped to evaluate the probative force of the

evidence, and (6) the likelihood that presentation of the evidence will consume

an inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). The

rules of evidence favor the admission of relevant evidence and carry a

presumption that relevant evidence is more probative than prejudicial. Jones v.

State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832

(1997).

      Rule 403 requires that a photograph have some probative value and that

its probative value not be substantially outweighed by its inflammatory nature.


                                        13
Tex. R. Evid. 403; Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim. App.

2009), cert. denied, 130 S. Ct. 3411 (2010). A court may consider many factors

in determining whether the probative value of photographs is substantially

outweighed by the danger of unfair prejudice, including (1) the number of exhibits

offered, (2) their gruesomeness, (3) their detail, (4) their size, (5) whether they

are in color or are in black and white, (6) whether they are close up, (7) whether

the body depicted is clothed or naked, (8) the availability of other means of proof,

and (9) other circumstances to the individual case. Williams, 301 S.W.3d at 690

(citing Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991), cert. denied,

505 U.S. 1224 (1992)).       Photographs are neither cumulative nor lacking in

significant probative value simply because they merely corroborate other kinds of

evidence. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999),

cert. denied, 528 U.S. 1082 (2000).

      We will not disturb a trial court’s evidentiary ruling absent an abuse of

discretion. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007).

As long as the trial court’s ruling is within the zone of reasonable disagreement

and is correct under any theory of law applicable to the case, it must be upheld.

Id.; see Williams, 301 S.W.3d at 690 (stating that the admissibility of photographs

over an objection is within the sound discretion of the trial judge).




                                         14
      A.    State’s Exhibit 11

      With regard to State’s Exhibit 11, Alami argues that the trial court did not

conduct a balancing test as required by rule 403. The following exchange in the

record demonstrates otherwise:

      [Prosecutor]: Your Honor, at this time I would like to publish
      certain exhibits, with this witness, on the screen. I’d request
      permission to use State’s Exhibit No. 11 for all purposes but not to
      publish 11 on the screen. I have a smaller one that I’ve shown
      Defense Attorney and I’ll show you as well, Judge.

      THE COURT: Is 11 being offered at this time?

      [Prosecutor]:   Yes, it is.

      THE COURT: All right. Do you have any additional objections to 11
      other than 403?

      [Defense counsel]: May I have a running objection to State’s 11?

      THE COURT: But other than the 403 objection, you have no
      additional objections?

      [Defense counsel]: No, Your Honor.

      THE COURT: At this time it’s balanced and overruled. State’s 11 is
      admitted for all purposes. And you may have a running objection to
      any use, display or testimony concerning 11. [Emphasis added.]

      Alami further argues that State’s Exhibit 11 did nothing more ―than to

inflame the jury in sympathy for the State.‖ We disagree. The exhibit is a black

and white photograph that depicts the front portion of the interior of Kumar’s

Lexus. Kumar is lying dead in the passenger seat, but she is clothed, and there

are no gruesome, external injuries visible.       The photograph corroborated




                                       15
(1) Martye Ferguson’s4 testimony regarding the extensive damage to the

passenger side of the vehicle, (2) Lovett’s testimony that Kumar died as a result

of the collision with the barrier, and (3) Dr. Peerwani’s testimony that Kumar did

not suffer any major external trauma. To the extent the photograph could be

described as disturbing because it depicts a lifeless Kumar, the photograph

portrays no more than the disturbing consequences of Alami’s felony-murder

offense. Weighing the rule 403 factors, the trial court could have reasonably

concluded that the probative value of the photograph was not substantially

outweighed by its inflammatory nature, if any. See Garcia v. State, 201 S.W.3d

695, 704 (Tex. Crim. App. 2006), cert. denied, 549 U.S. 1224 (2007) (―[W]hen

determining whether evidence is admissible under Rule 403, we do not consider

just whether the evidence is more prejudicial than probative, we consider

whether the probative value is substantially outweighed by the danger of unfair

prejudice.‖). Accordingly, we hold that the trial court did not abuse its discretion

by overruling Alami’s rule 403 objection to State’s Exhibit 11 and by admitting the

photograph. We overrule Alami’s third point.

      B.    State’s Exhibits 39 and 40

      With regard to State’s Exhibits 39 and 40, Alami argues that the trial court

did not conduct a rule 403 balancing test. The trial court expressly conducted the

balancing test as follows:


      4
       Ferguson was the first paramedic to respond to the incident.


                                        16
      [Prosecutor]: Your Honor, at this time I would offer for all purposes
      State’s Exhibit No. 39 and State’s Exhibit No. 40.

      THE COURT: Currently, there’s a relevance objection pending
      before the Court. You re-urge that objection?

      [Defense counsel]: I re-urge that objection, yes, Your Honor.

      THE COURT: That objection is overruled. You also have a 403
      objection. Do you re-urge that objection?

      [Defense counsel]: Yes, as to both instruments, State’s 39 and 40.

      THE COURT: Your objection is balanced against the entire record.
      It’s also overruled individually and specifically, 401 and 403, as to
      each objection. 39 and 40. And they’re both admitted. [Emphasis
      added.]

      Alami also argues that the evidence of his prior convictions ―did no more

than to inflame the jury in sympathy for the State.‖ We disagree. A person may

be charged with felony DWI if he has two previous convictions for DWI. Tex.

Penal Code Ann. § 49.09(b)(2).     The two prior DWI offenses are necessary

elements of the offense of felony DWI; they are jurisdictional, as opposed to

mere enhancement allegations. See Martin v. State, 200 S.W.3d 635, 640 (Tex.

Crim. App. 2006); State v. Wheeler, 790 S.W.2d 415, 416 (Tex. App.—Amarillo

1990, no pet.). Therefore, to obtain a conviction for felony DWI, the State must

prove the two prior DWI convictions at the guilt-innocence stage of trial. See

Barfield v. State, 63 S.W.3d 446, 448 (Tex. Crim. App. 2001); Mapes v. State,

187 S.W.3d 655, 658 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).

      Here, State’s Exhibit 39 is a judgment of final conviction dated April 21,

2006, in which a Collin County court found Alami guilty of DWI. State’s Exhibit


                                       17
40 is a judgment of conviction dated October 9, 2007, in which a Denton County

court found Alami guilty of a second DWI. Alami did not stipulate to the prior DWI

convictions. Therefore, to convict Alami of felony DWI, the State had to prove at

the guilt-innocence phase that Alami had two prior convictions for DWI—two

essential elements of the felony DWI offense. The probative value of State’s

Exhibits 39 and 40 was, consequently, very high.          Alami directs us to no

evidence in the record that the State used this evidence for a purpose other than

to prove the jurisdictional elements of felony DWI.5

      Weighing the rule 403 factors, the trial court could have reasonably

concluded that the probative value of State’s Exhibits 39 and 40 was not

substantially outweighed by the danger of unfair prejudice.       See Garcia, 201

S.W.3d at 704. Accordingly, we overrule Alami’s fourth point.

                                   V. MISTRIAL

      In his fifth point, Alami argues that the trial court abused its discretion by

overruling his motion for a mistrial because the State’s closing argument

attempted to shift the burden of proof.

      We review a trial court’s refusal to grant a mistrial for an abuse of

discretion. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). To be

      5
        Further, as the State points out, the trial court charged the jury that it
could only consider the evidence of Alami’s prior convictions ―on the issue of
whether the Defendant was committing a felony at the time of the alleged
offense‖ and not ―in any manner proving or tending to prove that [Alami] was
intoxicated while operating a motor vehicle in a public place on or about the 13th
day of June, 2008.‖


                                          18
permissible, the State’s jury argument must fall within one of the following four

general areas: (1) summation of the evidence; (2) reasonable deduction from the

evidence; (3) answer to argument of opposing counsel; or (4) plea for law

enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008), cert.

denied, 129 S. Ct. 2075 (2009).       To determine whether jury argument is

improper, we assess the argument as a whole and in context. Cruz v. State, 225

S.W.3d 546, 549 (Tex. Crim. App. 2007).

      The following exchanges occurred:

      [Prosecutor]: . . . Repeatability, corroboration. And he wants to
      spend a lot of time talking about Mr. Lovett. And, you know what, if
      Mr. Lovett did not help you understand the testimony, if he didn’t
      help you understand the testimony, then toss him out, because we
      don’t need him. And that’s the incredible thing about this case, the
      weight of evidence we have, we could have rested after the EMTs
      testified, after adding the testimony about his prior convictions,
      because by the time the EMTs took the stand, you had evidence
      from Sharmon Teel - - and this idea that the damage - - that
      somehow he was avoiding an accident, if you believe that, then the
      damage to Sharmon Teel’s vehicle appeared out of thin air, he had
      nothing to do with it.

             Mr. Lovett explained to you, very clearly. The version that he
      would like to have, the version that he wished was here is that
      Sharmon was somehow responsible. It is impossible. And he has
      no burden of proof. Don’t you know if there was an expert that he
      could have taken and brought into this courtroom to dispute the
      findings of Mr. Lovett, you would have heard it? You would have
      heard it.

      [Defense counsel]: Object to that. It’s an attempt to shift the burden
      of proof. It’s an improper jury argument.

      THE COURT: I’m sustaining the objection as a precaution.




                                       19
      [Defense counsel]: I’d ask the Court to instruct the jury to disregard
      the comment by the prosecutor.

      THE COURT: I will instruct the jury: The Defense has no burden of
      proof.

      [Defense counsel]: I’d ask the Court for a mistrial.

      THE COURT: That will be denied.

The State’s argument above followed defense counsel’s argument, which

included the following:

             Did that behavior, in essence, cause the death of Ms. Kumar?
      Well, if you believe that [Alami] struck the back of the Santa Fe - -
      and I’m going to get into Mr. Lovett’s calculation of the speed of the
      car in a minute because I think they’re horribly flawed and I will
      explain to you why. . . .

            ....

              In this, State’s Exhibit No. 42, Mr. Lovett hypothetically draws
      a point of collision, a point of collision. ―Do you know where the
      collision happened, Mr. Lovett?‖

            ―Well, I don’t know where it happened.‖

           ―Did you ask Detective Davis? Are there any objects on the
      ground that we could look to?‖

            ―No.‖ But somehow, arbitrarily, he just puts it up there and
      says, ―Well, I don’t use it for measure. That’s not what I use for
      measurements.‖ Well, it was pretty important depiction how he
      thought it happened and how the car turned.

      The State’s complained-of argument—which occurred immediately after

the prosecutor reminded the jury that Alami ―has no burden of proof‖—was

proper because it was made in response to defense counsel’s argument

challenging Lovett’s calculations and conclusions. Because the State’s argument


                                        20
was within one of the four                         permissible    areas    of   jury

argument, we hold that the                         trial court did not abuse its

discretion by denying Alami’s                      motion for a mistrial. See Blue

v. State, No. 14-09-00184-CR, 2010 WL 1655485, at *6–7 (Tex. App.—Houston

[14th Dist.] Apr. 27, 2010, no pet.) (mem. op., not designated for publication)

(overruling appellant’s argument that the trial court abused its discretion by

denying his motion for a mistrial).

                                  VI. CONCLUSION

      Having overruled Alami’s five points, we affirm the trial court’s judgment.




                                                   BILL MEIER
                                                   JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DAUPHINOT, J. filed a concurring opinion.

PUBLISH

DELIVERED: January 6, 2011




                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                        21
                              NO. 02-09-00151-CR


CHRISTOPHER BLAKE ALAMI                                            APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


                                   ------------

          FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                            CONCURRING OPINION

                                   ------------

      Appellant Christopher Blake Alami was charged with felony murder, with

felony driving while intoxicated (DWI) as the predicate felony.       Appellant

challenges the sufficiency of the evidence, and the majority correctly holds the

evidence sufficient under the Jackson standard.    But the majority mistakenly

states that I do not believe felony DWI can serve as the underlying felony in a

felony-murder prosecution.1    So long as the State proves that a defendant

committed an act clearly dangerous to human life that caused the death of an

individual during the commission of a felony, including a felony DWI, the State



      1
      Majority op. at 12.

                                        2
proves felony murder. However, the underlying felony alone cannot be the act

clearly dangerous to human life.

      This court, our sister courts, and the Texas Court of Criminal Appeals have

all addressed the issue of whether felony murder and intoxication manslaughter

are in pari materia. That is, we have all addressed the question of whether

proving death during DWI is, alone, sufficient to prove felony murder. We have

held that it is not. This court explained,

             Importantly, felony murder and intoxication manslaughter
      require different elements of proof. Felony murder requires the
      commission of an underlying felony, which intoxication manslaughter
      does not—a person can be convicted of intoxication manslaughter
      even if he was committing misdemeanor DWI at the time his actions
      caused another=s death. Felony murder also requires that the
      defendant have committed Aan act clearly dangerous to human life,@
      yet the intoxication manslaughter statute applies when the defendant
      causes a death by Aaccident or mistake.@2

      Felony murder requires an underlying felony as well as a second act

clearly dangerous to human life that results in the death of another person.3

Intoxication manslaughter requires DWI and death.4 Clearly, DWI cannot, alone,

be the act clearly dangerous to human life.       If it were, every intoxication

manslaughter would be a felony murder if the driver had been twice previously

      2
       Strickland v. State, 193 S.W.3d 662, 667–68 (Tex. App.—Fort Worth
2006, pet. ref=d) (citations omitted).
      3
       See Tex. Penal Code Ann. ' 19.02(b)(3) (Vernon 2003).
      4
       Id. ' 49.08 (Vernon Supp. 2010).

                                             3
convicted of DWI, and there would be no need to plead or to prove an additional

act clearly dangerous to human life.

      The majority here has affirmed a conviction for felony murder when DWI

serves as the predicate felony and the act clearly dangerous to human life is the

intoxicated driving.   As the majority points out, Timothy Lovett, the accident

reconstructionist who testified for the State, stated that the automobile crash that

killed Kumar was the type of automobile crash that he would expect to see when

an intoxicated driver was involved because a sober person could have avoided

the collision.5 Officer Brown testified that Appellant=s intoxicated driving caused

the wreck. Although the act clearly dangerous to human life may flow naturally

from the underlying felony, the legislature has not permitted the act to be the

underlying felony offense.

      Felony murder has two distinct requirements: the commission of an

underlying felony, which may or may not require a mental state, and the

commission of an act clearly dangerous to human life.6

      The State understandably wanted a higher range of punishment than

intoxication manslaughter provides for a person who was committing felony DWI




      5
       Majority op. at 9–10.
      6
       Tex. Penal Code Ann. ' 19.02(b)(3).

                                         4
when he caused the death of another person.7 Because there is now a single

range of punishment for intoxication manslaughter, whether the resulting death is

caused during the driver=s first, third, fourth, or fifth DWI,8 the State is forced into

the position of trying to separate the intoxicated driving from DWI.

      Respectfully, I would submit that the legislature should assess the situation

to determine whether it is appropriate for the penalty for intoxication

manslaughter to be higher when the person committing the offense has twice

previously been convicted of DWI, making the current DWI a felony DWI. The

legislature can easily rewrite the statute so that intoxication manslaughter for a

first or even second DWI can have a different range of punishment from

intoxication manslaughter committed by a person who has already been twice

convicted of DWI.9

      Neither the judicial branch nor the executive branch makes laws. Neither

the judicial branch nor the executive branch determines the appropriate range of




      7
        See id. '' 19.02(b), (c) (providing felony murder is generally a first-degree
felony), 49.08 (providing intoxication manslaughter is generally a second-degree
felony).
      8
       See id. ' 49.08.
      9
        See, e.g., id. ' 49.09(b-1), (b-2), (b-3) (elevating intoxication manslaughter
to a first-degree felony if the person killed was a peace officer, firefighter, or
emergency medical services personnel discharging an official duty).

                                           5
punishment. These decisions fall within the exclusive province of the legislature.

As the Texas Court of Criminal Appeals reminds us,

      [W]e interpret the Legislature=s statutes, not its intentions. . . . As
      the Supreme Court reminded us . . . , A[I]f Congress enacted into law
      something different from what it intended, then it should amend the
      statute to conform it to its intent. It is beyond our province to rescue
      Congress from its drafting errors, and to provide for what we might
      think . . . is the preferred result.@10

Because I agree that the evidence is sufficient to support Appellant=s conviction

but also believe that the legislature should consider modifying the range of

punishment available under the intoxication manslaughter statute when the

defendant has multiple DWI convictions, I respectfully concur.




                                             LEE ANN DAUPHINOT
                                             JUSTICE

PUBLISH

DELIVERED: January 6, 2011




      10
       Getts v. State, 155 S.W.3d 153, 158 (Tex. Crim. App. 2005) (quoting
Lamie v. U.S. Trustee, 540 U.S. 526, 542, 124 S. Ct. 1023, 1034 (2004)).

                                         6
