Justin James Forsyth v. State ( 2018 )

Opinion issued October 30, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00506-CR
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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.”
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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.).
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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
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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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