Justin James Forsyth v. State

ACCEPTED
01-17-00506-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/22/2018 4:56 PM
CHRISTOPHER PRINE
CLERK

COURT OF APPEALS
FIRST SUPREME JUDICIAL DISTRICT
Houston, Texas FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
JUSTIN JAMES FORSYTH, § 3/22/2018 4:56:14 PM
APPELLANT § CHRISTOPHER A. PRINE
§ Clerk
VS. § NUMBER 01-17-00506-CR
§
§
THE STATE OF TEXAS, §
APPELLEE

APPELLANT’S BRIEF SPECIFYING ERROR OF WHICH
APPELLANT COMPLAINS ON APPEAL

APPEALED FROM THE 56TH JUDICIAL DISTRICT COURT
OF GALVESTON COUNTY, TEXAS
IN CAUSE NUMBER 16CR1930

ORAL ARGUMENTS ARE REQUESTED

Winifred Weber
2525 Bay Area Blvd.
Suite 310
Houston, Texas 77058
SBN 01672500
Telephone: (281)488-9040
Facsimile: (281)488-9009

ATTORNEY FOR APPELLANT
 IDENTITY OF PARTIES AND COUNSEL

For Justin James Forsyth, APPELLANT:
Trial counsel:
Paul H. Lavalle
Attorney at Law
SBOT NO. 11998625
2501 Palmer Highway, Suite 112
Texas City, Texas 77590
Telephone: (409) 945-3414
Appellate counsel:
Winifred Weber
2525 Bay Area Blvd., Suite 310
Houston, Texas 77058
SBN 01672500
Telephone: (281)488-9040
Facsimile: (281)488-9009

For the State of Texas, APPELLEE:
Jack Roady
Criminal District Attorney
Galveston County Justice Center
600 59th Street, Suite 3305
Galveston, Texas 77511
(409) 766-2355 phone
(409) 766-2290 fax
Trial Assistants:
Mrs. Kayla Allen
SBOT NO. 24043530
Mrs. Kacey Launius
SBOT NO. 24081188
Appellate Assistant:
Rebecca Klaren

ii
 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................. ii
CITATIONS TO THE RECORD .................................................................. iv
TABLE OF AUTHORITIES ......................................................................... iv
STATEMENT OF THE CASE ..................................................................... vi
STATEMENT REGARDING ORAL ARGUMENT .................................. vii
ISSUE ONE .................................................................................................. vii
ISSUE TWO ................................................................................................. vii
POINT OF ERROR ONE ............................................................................... 2
RELEVANT FACTS ................................................................................... 2
SUMMARY OF THE ARGUMENT .......................................................... 3
ARGUMENT AND AUTHORITIES ......................................................... 4
POINT OF ERROR TWO ............................................................................ 13
RELEVANT FACTS ................................................................................. 13
SUMMARY OF THE ARGUMENT ........................................................ 15
ARGUMENT AND AUTHORITIES ....................................................... 15
PRAYER ....................................................................................................... 33
CERTIFICATE OF COMPLIANCE ............................................................ 34
CERTIFICATE OF SERVICE ..................................................................... 34

iii
 CITATIONS TO THE RECORD

The following abbreviation will be used to cite the record:

TR. refers to the clerk’s transcript.

V. refers to the volume of the court reporter’s statement of facts where the
evidence referred to may be found.

p. refers to the page or pages where the cited material may be found.

l. refers to the line or lines where the cited material may be found.

TABLE OF AUTHORITIES

Cases
Bautista v. State, 363 S.W.3d 259, 263 (Tex. App.-San Antonio 2012, no
pet.) ............................................................................................................ 17

Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)13

Daniel v. State, 577 S.W.2d 231, 234 TexCrimApp, reh denied June 7, 1978
............................................................................................................. 5, 7, 8

Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014) ...................... 4

Hall v. State, 86 S.W.3d 235, 240 (Tex.App.-Austin, Jul 26, 2002) .............. 4

House v. State, 947 S.W.2d 251 (Tex. Crim. App. 1997) (en banc) ............ 26

Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) ........................ 19

Jackson v. Virginia, 443 U.S. at 317–20, 99 S.Ct. 2781, 2788–89, 61
L.Ed.2d 560 (1979) ................................................................................... 13

Murray v. State, 457 S.W.3d 446, 448 (Tex.Crim.App.), cert. denied, 136
S.Ct. 198 (2015) .......................................................................................... 5

Parham v. Wilbon, 746 S.W.2d 347 (Tex.App.--Fort Worth 1988, no writ) 28

Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995) ..................... 16

iv
Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986) ................. 10

Rogers v. State, 725 S.W.2d 350, 360 (Tex. App. –Houston [1st Dist.] 1987,
no pet.) ................................................................................................. 17, 33

Westbrook v. State, 28 S.W.3d 772, 778 (Tex.Crim.App.2007) .................... 4
Statutes
TEX. PENAL CODE ANN. §49.08(a) (West 2003)...................................... 5

TEX. PENAL CODE ANN. §6.04 (a) (West 2011)....................................... 9

TEX. R. EVID. 607 ...................................................................................... 30

TEX. R. EVID. 609(a) (1) ............................................................................ 32

Tex.R. Evid. 614 ........................................................................................... 28

Texas Constitution, Article 1, Section 19 ..................................................... 16

Texas Disciplinary Rules of Professional Conduct 3.08 (a) (2016) ............. 27

United States Constitution Amendment XIV ............................................... 16

United States Constitution, Amendment V .................................................. 16

v
 STATEMENT OF THE CASE

On June 12, 2017, Appellant was arraigned for the offense of Intoxication

Manslaughter, to which he entered a plea of “not guilty”. V. 6, p. 1, ll 13-

17; p. 4, ll 17-25; p. 5, ll 2-25: p. 6, ll 1-12. A jury of twelve and one

alternate was empaneled the same day. V. 6, p 116, ll 12-21; p. 117, ll 2-9.

On June 15, 2017, after hearing evidence and argument from both the State

and Defense, the jury convicted Appellant as charged and further made an

affirmative finding as to a deadly weapon. V. 9, p. 1, ll 13-17; p. 250, ll 19-

24V. 9.

The jury heard punishment evidence and arguments from both Appellant

and the State on June 16, 2017. V. 10, p. 1, 13-17. In a unanimous verdict,

Appellant was assessed fifteen, (15), years confinement in the Texas

Department of Criminal Justice, Institutional Division and a ten-thousand

dollar, ($10,000.00), fine. V. 10, p. 62, ll 21-25; p. 63, ll 1-4.

The trial court signed a Certification of Appellant’s Right of Appeal,

certifying that this is not a plea bargain case, and that Appellant has the right

to an appeal. TR, 343; Tex. Rule App. Proc. 25.2(a)(2). On June 16, 2017,

Appellant filed a timely notice of appeal, thus perfecting this appeal. TR,

346; Tex. Rule App. Proc. 26.2(a). As a result, this case is properly before

this Court.

vi
 STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Texas Rules of Appellate Procedure 39.1 and 39.2, Appellant

does not request oral argument before this Court of Appeals. Although this is

a meritorious appeal of a criminal case, Appellant believes that the facts and

legal arguments are adequately presented in this Brief and in the record.

Appellant also believes that the decisional process of the Court of Appeals

will not be significantly aided by oral argument. As a result, Appellant does

not request oral argument and asks that the issues presented in this Brief be

considered by this Court of Appeals by submission only.

ISSUE ONE

POINT OF ERROR ONE: THE EVIDENCE WAS INSUFFICIENT

TO ESTABLISH THE NECESSARY ELEMENT OF APPELLANT’S

INTOXICATION AS THE CAUSE OF DEATH.

………………page 2

ISSUE TWO

POINT OF ERROR TWO: THE CUMULATIVE EFFECT OF

PROSECUTORIAL MISCONDUCT DEPRIVED APPELLANT OF

DUE PROCESS OF LAW AND DUE COURSE OF LAW.

……………..page 13

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 COURT OF APPEALS
FIRST SUPREME JUDICIAL DISTRICT

Houston, Texas

JUSTIN JAMES FORSYTH, §
APPELLANT §
§
VS. § NUMBER 01-17-00506-CR
§
§
THE STATE OF TEXAS, §
APPELLEE

APPELLANT’S BRIEF SPECIFYING ERROR OF WHICH
APPELLANT COMPLAINS ON APPEAL
IN CAUSE NUMBER 16CR1930

APPEALED FROM THE 56th JUDICIAL DISTRICT COURT
OF GALVESTON COUNTY, TEXAS

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, JUSTIN JAMES FORSYTH, hereinafter referred to as

the Appellant, and respectfully submits this his brief specifying error of

which Appellant complains on appeal. Pursuant to the Texas Rules of

Appellate Procedure, the Appellant would show through his attorney the

following point of error of which he wishes to complain.
 POINT OF ERROR ONE

POINT OF ERROR ONE IS THAT THE EVIDENCE WAS

INSUFFICIENT TO ESTABLISH THE NECESSARY ELEMENT OF

INTOXICATION AS THE CAUSE OF DEATH.

RELEVANT FACTS

10th Street runs through a densely populated neighborhood in the

Galveston Bay community of Bacliff, Texas. V. 7, p. 82, ll 19-22. A pot-

holed, two-way street; its fringes crumble into the grass. V. 7, p. 94, ll 13-

23; p. 95, ll 2-4. From edge to edge the street is roughly 19 feet wide. V. 9,

p. 190, l 25; p. 191, ll 1-3. Flanked by ditches, there are no sidewalks and no

lane markings. V. 7, p. 95, ll 5-8. Motorists travel into the opposing lane to

side-step cars parked along the margin. V. 7, p. 95, ll 20-24.

On the Sunday evening of July 17, 2015, three 10th Street families were

in their front yards enjoying the end of the day. V. 7, p. 15, l 25; p. 16, ll 1-

3, 11-14. As they often did, six children, siblings and cousins, played in the

street in front of their homes. V. 7, p. 18, ll 6-9. The children, aged 4 to 10

years, rode around on bicycles and scooters. V. 7, 18, ll 6-9.

A few doors down, at the corner of 10th and Jackson Road, three young

men sat under the trees of their front yard. V. 7, p. 72, ll 11-19; p. 73, ll 2-3;

p. 75, ll 17-25; p. 76, ll 9-17. Around 7 pm, Appellant crossed from Jackson

2
to 10th on his motorcycle. V. 7, p. 76, ll 1-2. The motorcycle engine revved

and heads turned. V. 7, p. 76, ll 18-25; p. 77, ll 1-5.

At the sound of the engine children scattered off the street, but the

youngest, little Omar, didn’t seem to notice the motorcycle travelling down

the middle of 10th street about thirty miles an hour. V. 7, p. 153, ll 3-6; V. 9,

p. 190, ll 12-24. Adriel Omar Hernandez, Omar, 4 years old, had picked up

a black toy Tonka truck from his yard. V. 7, p. 15, ll 16-20; p. 19, ll 19-21;

p. 20, ll 7-9. As the motorcycle passed his house, Omar rolled the Tonka

truck onto the street and into the left side of the motorcycle. V. 7, p. 154, ll

2-10; V. 8, p. 215, ll 2-6. Momentum lifted Omar off the street and carried

him with the motorcycle a few feet. V. 8, p. 214, ll 11-15; p. 215, ll 2-10.

Appellant began to lay the motorcycle down and Omar’s body dropped

away. V. 8, p. 214, ll 13-15. The motorcycle continued off the right side of

the road and came to a stop in the ditch. V. 7, p. 90, ll 6-8. Omar did not

survive the night. V. 7, p. 62, ll 23-25; p. 63, ll 1-2.

SUMMARY OF THE ARGUMENT

The record as a whole does not support the necessary element that

intoxication caused Appellant and Adriel Omar Hernandez, Omar, to collide,

resulting in Omar’s death. Contrary to the State’s argument that Omar died

because an intoxicated condition caused Appellant to drive on the wrong

3
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.

ARGUMENT AND AUTHORITIES

Evidence is legally insufficient if, reviewing the evidence in a light most

favorable to the verdict, a rational trier of fact could not have found the

essential elements of the offense beyond a reasonable doubt. Lucio v. State,

351 S.W.3d 878, 894 (Tex. Crim. App. 2011) (citing Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781–89, 61 L.Ed2d 560 (1979)). It rests on

the jury alone to judge the credibility and weight of witness testimony.

Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). The

reviewing court will presume that the fact finder resolved any conflicting

testimony in favor of the verdict. Id. The reviewing court may consider

direct or circumstantial evidence and may draw reasonable inferences from

that evidence. Westbrook v. State, 28 S.W.3d 772, 778

(Tex.Crim.App.2007). However, the proof must generate more than a strong

suspicion or even a probability. Hall v. State, 86 S.W.3d 235, 240

(Tex.App.-Austin, Jul 26, 2002). The question for the reviewing court is

whether inferences necessary to support an essential element are reasonable

based on the cumulative force of the evidence when viewed in the light most

4
favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448

(Tex.Crim.App.), cert. denied, 136 S.Ct. 198 (2015).

The State has the burden to prove each element of an offense. Texas

Code Crim. Proc. Ann. art. 38.03 (West Supp. 2011); Alvarado v. State, 912

S.W.2d 199, 206-07 (Tex. Crim. App. 1995). The offense of intoxication

manslaughter requires that a person (1) operates a motor vehicle in a public

place, (2) while intoxicated, and (3) by reason of that intoxication, causes the

death of another person by accident or mistake. TEX. PENAL CODE ANN.

§49.08(a) (West 2003). It is not enough to prove an intoxicated defendant

caused a death while operating a motor vehicle in a public place, the statute

requires the State to prove that it was the defendant’s condition of

intoxication that actually caused the death. Daniel v. State, 577 S.W.2d 231,

234 TexCrimApp, reh denied June 7, 1978.

At Appellant’s trial, witnesses testified that Appellant was driving in the

middle, or slightly on the wrong side of the unmarked street, (the left side of

10th Street), toward Avenue A. V. 7, p. 95, ll 5-8; p. 62, ll 6-15; V. 8, 203, ll

8-16. The State asserted that (1) the reason Appellant was driving on the

wrong side of the street was because Appellant was intoxicated and that (2)

Omar would not have died had Appellant been driving on the proper side.

5
The evidence shows however, that Appellant was purposefully driving in a

manner to avoid children who were playing in the street.

According to testimony at Appellant’s trial, Appellant travelled down 10th

Street at roughly 30 miles per hour. V. 9, p. 190, ll 19-24. Appellant, seeing

the group of older children playing in the street, revved his motorcycle

engine to warn them he was approaching. V. 9, p. 203, ll 7-13. Appellant

chose the engine sound over the horn, because the horn only produced a

dinky “meep, meep” sound and he believed the engine was a more effective

warning. V. 9, p. 202, ll 11-25; p. 203, ll 1-13. In fact, Appellant was right.

As Appellant made his way down the middle, or slightly on the left, (east),

side of 10th street, four children on the street heeded the warning sound, and

moved off to the right, (west), side, into Omar’s yard. V. 7, p. 86, ll 8-11; p.

105, ll 20-23; p. 112, ll 6-14; p. 152, ll 7-15; p. 164, ll 8-15; p. 168, ll 8-15;

V. 9, p. 202, ll 5-17; p. 203, ll 21-25; p. 214, l 1.

Maria Vasquez, Omar’s great aunt, testified that, as Appellant passed

through, little Omar, who was only 41 inches tall, (a little less than 3.5 feet),

and weighed only 42 pounds, bent over his black Tonka truck and rolled it

up out of the ditch from the left, (east), side of the road out to the middle,

travelling west and into Appellant’s motorcycle. V. 7, p. 153, 2-3; p. 156, ll

4-12; p. 162 ll 9-22; V. 12, p. 128. Vazquez testified that she never expected

6
Omar to go into the street; that Omar ran out into the street very fast and it

happened so fast. V. 7, p. 154, ll 2-6; p. 162, ll 9-22.

Vasquez, the only eye witness, testified that Appellant was driving down

the middle of the street and Vasquez could not determine whether Appellant

were driving more to one side than the other. V. 7, p. 162, ll 6-15. The

State’s accident reconstructionist testified that it appeared the impact

happened about 8 feet from the left, (east), side of the road. V. 8, p. 204, ll

15-17; p. 205, ll 11-13. By that testimony, the impact would have occurred

about 18 inches to the left, (east), of the center of 10th Street.

Daniel v. State presents a set of facts in which the Court of Criminal

Appeals found sufficient evidence that the appellant’s condition of

intoxication caused a death. Id. In Daniel, the intoxicated appellant came

upon a two-car wreck partially blocking a lighted road. Id at 233. (The

night was dark and the car blocking the roadway had no lights. However, a

law enforcement officer standing in the road held a flashlight, and the area

was illuminated by a blinking yellow light and a street light. Id.) Even

though it was 9pm., there was evidence the appellant’s headlights were off

as he drove upon the two wrecked cars. Id. Driving 30 miles per hour, the

appellant noticed one of the wrecked cars and tentatively braked, resulting in

over 80 feet of medium grade skid marks. Id at 234. Disastrously, the

7
appellant failed to notice a very large, grown man standing in the middle of

the road. The appellant struck and killed the man who was 5’11’’ tall and

weighed 460 pounds. Id at 234. Even upon striking and killing the man, the

appellant did not realize he hit a person. Id.

The reviewing court in Daniel found that evidence was sufficient to

support the necessary element that the appellant’s intoxication caused the

man’s death in that (1) medium as opposed to heavy grade skid marks

suggested the appellant did not appreciate the dire situation as would a non-

intoxicated person under the same circumstances; (2) the appellant was

driving without lights at 9pm; and, (3) that even though the appellant was

driving only 30 miles per hour, he never saw the very large man standing in

front of him. Id.

Like Daniel, in the instant case, Appellant never saw the person he struck

before impact. V. 9, p. 204, ll 9-11. Unlike the decedent in Daniel, little

Omar was not standing on the unmarked street at all until the critical

moment Appellant attempted to drive through. Appellant was focused on

four older, and one can logically infer larger, children aged 5-10 years,

riding bikes on the right, (west), side of 10th Street. V. 7, p. 18, ll 6-9; V. 8,

p. 203, ll 8-16. As Appellant drove south down 10th street, Omar and

Omar’s seven year old cousin played in a yard off the left, (east), side of

8
10th, across the street from Omar’s house. V. 7, p. 152, ll 22-23; p. 153, ll 2-

3; p. 164, ll 8-15, 24-25; p. 165, ll 1-2, 23-25; p. 166, l 1.

The State’s assertion that Appellant drove on the wrong side of the street

because he was intoxicated, cannot be reasonably inferred from the facts.

First, at the time Appellant headed down the street, Omar was not on the

street at all and therefore there was no reason for Appellant to look left.

Appellant’s attention was logically drawn to the right, (west), side of 10th

street upon which the older children were playing. According to the State’s

witnesses, Appellant drove down the middle, and perhaps 18 inches into the

left, (east), side of the street. The only reasonable conclusion is that

Appellant took evasive action to protect the children playing in the street.

Omar was 41 inches tall, (a little less than 3.5 feet). V. 12, p. 128. That

means he was near the height of an average motorcycle seat, had he been

standing tall. But, Omar was not standing tall. Omar was bent over his

Tonka truck rolling onto 10th Street and into Appellant. Unlike Daniel, the

facts in the instant case do not support intoxication as causation.

The Texas Penal Code holds someone criminally responsible only where

the result would not have occurred but for his conduct. TEX. PENAL

CODE ANN. §6.04 (a) (West 2011). The statute requires that when

concurrent causes exist, either (1) the accused’s conduct must be sufficient

9
by itself to have caused the harm, or (2) the accused’s conduct coupled with

another cause must be sufficient to have caused the harm. Robbins v. State,

717 S.W.2d 348, 351 (Tex. Crim. App. 1986).

In regard to the case at hand, Appellant’s conduct was not sufficient to

have caused Omar’s death. If there had been enough evidence to support a

finding that it was a condition of intoxication that caused Appellant to drive

on the wrong side of the road, the record does not support the notion that

those few inches would have spared Omar’s life. Omar ran into the front of

the forward travelling motorcycle.

Ricardo Javier Palacios, Palacios Accident Reconstruction, Owner,

testified that he was retired from 21 years of service with DPS, and former

team leader of the district reconstruction team out of Corpus Christi. V. 9, p.

167, ll 10-11, 18-23. Palacios testified he had successfully completed all 6

of the reconstruction training courses offered by DPS; investigated a few

thousand accidents as a DPS officer; had been involved in 500 accident

reconstruction cases in private practice; and, had testified many times. V. 9,

p. 167, ll 23-25; p. 168, ll 1-2; p. 169, ll 24-25; P. 170, ll 1-9. In Appellant’s

case, Palacios examined all of the evidence gathered by the State’s witnesses

and accident reconstructionist, including “the investigation prepared by the

Sheriff’s Office, videos of statements taken by the Sheriff’s Office, scale

10
diagram, data points from the scale diagram, photographs taken at the scene,

at the hospital both by patrol and by crime scene investigators”. V. 9, p.

170, ll 13-20.

Under cross-examination at Appellant’s trial, Palacios testified that if

Appellant had been the few inches to the right, in the south bound side of

travel, Omar, continuing his trajectory, could have run into the rear of the

motorcycle, rather than the front.

Q. Thank you. So would you also agree with me

that even hypothetically, even if the defendant was

traveling in the middle of this lane, that he would

have driven right past that child and that collision

would not have occurred?

A. I don't know what the child is doing, ma'am. If

the child is still coming towards the middle of the

road, the child could have hit the rear part of the

motorcycle. V. 9, p. 187, ll 8-16.

Palacios’s testimony was consistent with all of the evidence. In fact,

Omar was travelling very fast from east to west across the narrow Street

according to the eye witness, his Aunt Maria Vasquez. Omar was racing his

11
Tonka truck across the road toward his house, where his mother waited, and

never saw the danger into which he plunged.

At trial, the State suggested that Appellant would have turned the

motorcycle and avoided Omar if intoxication had not slowed Appellant’s

reaction time. However, Appellant did not know that Omar was in the street

because Omar was so small and ran out so quickly from the left. Palacios

testified that based on the evidence, Appellant’s reaction time was

substantially better than normal reaction time. According to Palacios, the

time it takes a normal person to perceive danger and then react, “perception

reaction time”, ranges between 1.5 seconds and a little over 2.0 seconds. V.

9, p. 177, ll 22-25; p. 178, ll 1-6. Palacios calculated Appellant’s

“perception reaction time” from Omar’s impact with the motorcycle to

Appellant’s laying down the motorcycle to be less than 1.0 second. V. 9, p.

177, ll 19-24. Palacios’ evaluation of the reconstruction revealed that

Appellant had demonstrated a much quicker than average reaction time,

characterizing it as “pretty darn good” and “excellent”. V. 9, p. 177, ll 22-

25; p. 177, ll 1-6.

The instant case concerns the death of a 4 year old child, and as such, it is

heartbreaking. Human instinct presses to hold someone accountable for the

loss. Where a person stands accused, there is a strong tendency to drape the

12
blame around his shoulders. For this reason, great care must be taken to

examine the evidence in a cold and rational light. Looking at the evidence

as a whole, it is obvious the State failed to sufficiently prove that if

Appellant were in a condition of intoxication when he hit Omar, it was such

condition that caused Omar’s death.

Evidence of the essential element that Appellant’s intoxication was the

cause of Omar’s death is insufficient. This case should be reversed and

Appellant acquitted. Under the Jackson standard, “a rational jury would

necessarily entertain a reasonable doubt as to the Appellant’s guilt, the due

process guarantee requires that we reverse and order a judgment of acquittal.

Jackson v. Virginia, 443 U.S. at 317–20, 99 S.Ct. 2781, 2788–89, 61

L.Ed.2d 560 (1979); Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141,

57 L.Ed.2d 1 (1978).

POINT OF ERROR TWO

POINT OF ERROR TWO IS THAT THE CUMULATIVE EFFECT

OF PROSECUTORIAL MISCONDUCT DEPRIVED APPELLANT

OF DUE PROCESS OF LAW AND DUE COURSE OF LAW.

RELEVANT FACTS

The State’s trial counsel, Kayla Allen, established that both she and

Kacey Launius, Allen’s co-counsel, in the capacity of the District Attorney’s

13
Vehicular Crimes Unit, attended and watched officers work the accident

scene during the active investigation. V. 8, p. 197, ll 3-23; p. 199, 2-14; V.

9, p. 9, ll 11-19. Allen continued to participate in the investigation by

securing a search warrant for Appellant’s blood and then transporting that

blood from Clear Lake Regional Hospital. V. 9, p. 20, ll 12-25; p. 21, ll 1-

22.

Near the end of its case in chief, the State sponsored two reluctant

witnesses, Amber Buckles Jennings, Appellant’s fiancé, and Justin Linkey,

Jennings’ son. V. 9, p. 28, ll 12-15; p. 155. Linkey elected not to testify,

invoking a 5th Amendment right against self-incrimination. V. 9, p. 27, 18-

21. The Trial Court granted Linkey immunity upon the State’s motion, and

compelled Linkey to testify. V. 9, p. 153, ll 21-25; p. 153, ll 1-16.

The State asked both Jennings and Linkey only two categories of

questions: 1. Whether they saw Appellant drinking on the day in question,

and; 2. To recount their substantial felony convictions. V. 9, p. 32, ll 4-5; p.

42, ll 5-24; p. 43, ll 12-25; p. 44, ll 1-10; p. 161 ll 18-24; p. 162, ll 16-25; p.

163, ll 9-14, 18-25. While Jennings and Linkey were on the stand, the State

told each of them, in front of the jury, that she was “legally obligated” to

ask them about criminal convictions if they were felonies or crimes of moral

turpitude. V. 9, p. 41, l 25; p. 42, ll 1-4; p. 161, ll 9-14.

14
 SUMMARY OF THE ARGUMENT

The record as a whole shows that Appellant was denied his due process

of law and due course of law right to a fair and impartial trial in that the

prosecutor presented a series of statements for the jury which had the effect

of vouching for the testimony of witnesses who might prove her case; and,

the prosecutor improperly detracted from Appellant’s credibility by

sponsoring two witnesses, close companions of Appellant, for the chief

purpose of impeachment, resulting in a constructive impeachment of

Appellant. These prosecutorial acts unfairly prejudiced Appellant to such a

degree as to undermine a fair process for Appellant.

ARGUMENT AND AUTHORITIES

In the guilt/innocence phase of Appellant’s trial, there was a running

string of testimony placing both the State’s trial counsel as fact witnesses to

the accident scene, the accident reconstruction, evidence gathering, securing

a search warrant for evidence of Appellant’s blood/alcohol content and chain

of custody for Appellant’s blood/alcohol evidence. The State’s position as

evidentiary witnesses amounted to improper vouching. Additionally, the

State called two of Appellant’s close companions to testify to the element of

intoxication as an apparent pretext for impeaching them with lengthy

criminal history. (The State had already introduced evidence of Appellant’s

15
intoxication from officers, medical personnel, lay witnesses and blood

testing.) The State’s true intent for calling Appellant’s companions was

made clear when the State misstated the law in the presence of the jury,

telling each of Appellant’s companions that the law required her to impeach

them with their felony and moral turpitude convictions. This improper

handling of the witnesses produced little evidence of the issue of

intoxication, but had the great effect of impugning Appellant’s character by

association. Each of the acts of misconduct strung together created a

pervasive prejudicial effect in favor of the State and to the detriment of

Appellant in violation of his right to due process of law under the U.S.

Constitution Amendments V and XIV and his right to due course of law

under the Texas Constitution, Article 1, Section 19. United States

Constitution, Amendment V; United States Constitution Amendment XIV;

Texas Constitution, Article 1, Section 19.

Appellant did not object to the evidence at trial. Generally, error must be

preserved by a timely, specific objection followed by a request for

instruction to disregard and a motion for mistrial in order to be reviewed on

appeal. Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995). Even

so, there exist cases where a serious and continuing prosecutorial

misconduct undermines the reliability of the fact finding process, resulting in

16
deprivation of fundamental fairness and due process of law. Rogers v. State,

725 S.W.2d 350, 360 (Tex. App. –Houston [1st Dist.] 1987, no pet.). The

facts of each case must be examined individually to determine whether the

probable effect of prosecutorial misconduct on the minds of the jurors

requires reversal. Bautista v. State, 363 S.W.3d 259, 263 (Tex. App.-San

Antonio 2012, no pet.).

Improper Vouching

Allen established through two of her witnesses that she or both she and

her co-counsel were fact witnesses to the active investigation of the case on

trial. Neither Allen nor Launius swore an oath or testified subject to cross-

examination. Evidence of Allen’s and Launius’ roles as special prosecutors

assigned to the earliest phase and continuing phases of the investigation,

corroborated witness testimony as to critical issues in the case: (1) How the

collision occurred; (2) Where the collision occurred; (3) Why the collision

occurred; and, (4) Whether Appellant were intoxicated.

First, Allen established that the prosecutors were on the accident scene in

their role as special prosecutors of the Vehicular Crimes Unit. Jeremy

Creech, Galveston County Sheriff’s Office, accident reconstructionist,

testified as follows.

17
 Q. As part of the fatality, especially a fatality like this, is the

DA's office called?

A. Yes.

Q. In any type of vehicle fatality in our county, what DA is

always called?

A. You.

Q. Do you know why that is?

A. You're the head of the vehicle crimes unit.

Q. On this scene, did I come to the scene?

A. Yes, you did.

Q. And did Kacey also come to the scene?

A. Yes, she did. V. 8, p. 197, ll 3-14.

On its face the information came out without warning, offering no

opportunity for Appellant to object. Neither Allen’s or Launius’ name

appeared in the State’s Witness list on file before trial. T.R. 161-164. It

appears that Appellant learned both trial prosecutors were witnesses at the

same moment the jury learned that fact. Allen asked whether the District

Attorney’s Office was always called to the scene in such cases. Following

an affirmative answer Allen asked, ‘who?’, and Creech answered, “you”. V.

8, p. 197, ll 3-14. There was no reason to forsee that the District Attorney’s

18
Office was at the scene, or that the Office was represented by Allen and

Launius. (See Issa v. State where error preserved even though no objection

because there was no opportunity to object at trial. Issa v. State, 826 S.W.2d

159, 161 (Tex. Crim. App. 1992).)

Even if Appellant had been able to properly preserve error, it would have

done no good. The Court of Criminal Appeals has recognized that cases

exist where objection and instruction to disregard could not have removed

the harm. Brown v. State, 692 S. W.2d 497, 501 (Tex. Crim. App. 1985) (en

banc). Error will not be cured where it appears that the question alone is

clearly calculated to inflame the minds of the jury and is of such a character

as to suggest the impossibility of withdrawing the impression produced on

their minds. Id.

At Appellant’s trial, the State elevated her influence with the jury in the

way she characterized the case, “especially a fatality like this” and then set

herself out as the “authorized” person in the District Attorney’s office to

respond to the active investigation of the accident scene. No objection or

instruction to disregard could have removed the special status the State

portrayed of herself and her co-counsel.

David Balchunas, Galveston County Sheriff’s Office, Lieutenant,

Investigation, also testified at Appellant’s trial on direct examination that

19
Allen, in her role with the District Attorney’s Office, responded to the live

accident scene. V. 9, p. 6, ll 15-16.

Q. Who else would be called out to the scene?

A. The forensic investigators are going to be called

out to a scene like that. Additional personnel for

scene security, in other words, to keep the scene from

being contaminated or disturbed in any way. And in this

case the district attorney's office was called to

respond because it was possibly going to be a fatality

which it turned out to be. So I believe you, and that

would be Kayla Allen, responded to the scene as well.

(Emphasis added.) V. 9, p. 9, ll 11-19.

Next, Allen lent her personal corroboration of Creech‘s crime scene

testimony by establishing that Allen and Launius walked the scene with

Creech as he was gathering evidence to reconstruct the accident.

A. When I arrive I'm going to walk the scene. I'm

going to look at the evidence that's left on the road,

start evaluating it for myself. I'm going to talk with

the officers that are there and any witnesses that may

still be there. V. 8, p. 197, ll 15-23.

20
 Q. And as part of you walking the scene to make a

visual assessment, would that be the part where if Kacey

and I were at that scene you are walking us through what

you are seeing on the scene?

A. Yes.

Q. And did you do that in this case?

A. Yes, I did.

Q. Once you walk the scene, do you start making

determinations of how the crash occurred?

A. Yes.

Q. And is that your role --- are you trying to

figure out what happened in this instance?

A. Yes, ma'am. (Emphasis added.) V. 8, p. 199, 2-14.

In addition to participating in the accident scene, at Appellant’s trial

David Balchunas testified on direct examination that Allen went to a Harris

County District judge and got a search warrant with him for Appellant’s

blood and for blood/alcohol results. Allen and Balchunas then picked up

five vials of Appellant’s blood along with documents from Clear Lake

Regional Hospital and transported them.

Q. And in fatality cases, are there times where we

21
are more and more retrieving the blood from the hospital

that was drawn for medical purposes?

A. Yes, ma'am.

Q. In this particular case, did the defendant have

what we call residual left over blood at Clear Lake

Regional when he went there for his ankle?

A. Yes, ma'am.

Q. And for us to recover that blood, what do we have

to do?

A. We -- with his blood, he was in the hospital at

Clear Lake Humana Hospital which is in Harris County.

So in order to retrieve or legally retain that blood

from the Harris County hospital, I went along with Miss

Kayla Allen to the Harris County District Attorney's

office. We had -- I had obtained a search warrant.

Once I obtained a search warrant to obtain the residual

blood from Mr. Forsyth, I went to the 177th District

Court, talked to a Judge Gurney, and then she signed the

search warrant. And, of course, I signed the affidavit

as well. Once that was done, we went to the Clear Lake

22
 Regional Hospital, met with the staff there; and they

satisfied the search warrant by giving us five vials of

the substances that we need along with other documentation.

Q. And what day, if you remember, did we go to the

Harris County DA's office to have a search warrant drafted?

A. I'll tell you exactly when it was. It was July 20th is when we

went up there.

Q. What year?

A. 2016.

Q. And once that blood was recovered, what do you

then do with the blood?

A. Blood has to be refrigerated. It was given to us

packaged. (Emphasis added.) V. 9, p. 20, ll 12-25; p. 21, ll 1-

22.

Lieutenant Balchunas, having established on direct examination

that Allen was at the crime scene, on cross-examination, Balchunas

testified about witness interviews and blood alcohol evidence as

follows.

Q. For instance, when you interviewed Mr. Douthit,

his husband was not in the room at the same time because

23
you had to interview him as well; is that correct?

A. Correct. We are not going to have two witnesses

in an interview, for obvious reasons, so they can't hear

or it's known what's going on.

Q. And likewise, if you did any interviews at the

scene, you would have all these people separated and you

talked to them one on one?

A. Yes. If we talk to somebody, yes, it's going to

be one on one. We try the best we can.

Q. What is changed that makes the hospital blood to

be something that you want to pull in now, once you

already have law enforcement blood? What's changed in

terms of the last few years where the law enforcement

blood is something that draws your attention?

A. In order to exercise on the side of caution, and

in order to assure that, for legal purposes, in order to

again, exercise on the side of caution, is why we

elected to go up to Harris County to get the blood from

the hospital. (Emphasis added.)

Q. Was that just to be able to compare it to the law

24
 enforcement blood and show that the results are the same

or similar?

A. Blood is blood but --

Q. Yes, sir.

A. -- I think the main purpose was to look for the

blood alcohol content or any other substance that may

have been in the system of Mr. Forsyth. V. 9, p. 25, ll 1-25; p.

26, ll 1-4.

There is no explanation for giving this information to the jury other than

to possibly influence the witness testimony; to vouch for the State’s

witnesses; and, to possibly paint the State as having elevated credentials,

increasing their persuasive ability. Once the jury had this information

nothing the Trial Court could have done would have cured the harm.

Allen also used her personal knowledge of the scene outside the presence

of the jury in her bench argument attempting to admit a scene photograph,

State’s Exhibit “78” for identification.

MS. ALLEN: And, Your Honor, additionally the crash

happened in the daytime. By the time we took photos of the

scene, it was more nighttime. (Emphasis added.) V. 8, p. 225,

12-14.

25
 THE COURT: I really have a problem with pictures taken a

year after the incident.

MS. ALLEN: Well, the point of these pictures is, Judge, he's

coming off of here. There's nothing different about these

photographs of this street being open for him to perceive this

danger when he enters 10th and Jackson. That's how far back,

10th and Jackson. And we have a clear view of this entire road

down this road. And there is nothing different on the sides of

these pictures to back then. I mean, I can ask him that and clear

it up. I also was on scene myself. (Emphasis added.)

MR. LAVALLE: Do you want to be a witness?

MS. ALLEN: I can ask him that question. V. 8, p. 228, ll 9-21.

In House v. State, two assistant district attorneys testified in the

punishment phase of trial regarding the defendant’s character. House v.

State, 947 S.W.2d 251 (Tex. Crim. App. 1997) (en banc). Neither of the

prosecutors was an advocate at trial. Id at 252. The reviewing court

acknowledged that an advocate-witness poses potential harm to the opposing

party in violation of the Texas Disciplinary Rules. Id at 253. The

Disciplinary Rules state, in part, that generally, a lawyer shall not accept or

continue employment as an advocate before a tribunal in a contemplated or

26
pending adjudicatory proceeding if the lawyer knows or believes that the

lawyer is or may be a witness necessary to establish an essential fact on

behalf of the lawyer's client. Texas Disciplinary Rules of Professional

Conduct 3.08 (a) (2016).

Unlike the prosecutor-witnesses in House, Allen and Launius were the

actual advocates at Appellants trial. Comment 4 of the Disciplinary Rules

distinguishes a witness as a person who testifies based on personal

knowledge, from an advocate who is a person expected to explain and

comment on evidence given by others. Id at Comment 4. Where a lawyer

assumes the dual role of advocate-witness, the fact-finder may not clearly

understand when to accept a statement as proof or as an analysis of the

proof. Id.

While the trial prosecutors, Allen and Launius, did not take the witness

stand as did the prosecutors in House, Allen established herself and Launius

as fact witnesses, essentially vouching for the truthfulness of the State’s

evidence. Additionally, whether consciously or not, Allen and Launius

enjoyed the advantage of ensuring their witnesses testified in accordance

with Allen’s and Launius’ personal memories of the facts. This was just the

kind of undue influence the Witness Exclusion Rule was invoked to guard

27
against. Tex.R. Evid. 614. Ironically, it was Allen who requested the Rule

at the beginning of the trial.

THE COURT: Okay. State, call your first witness.

MS. ALLEN: At this time, Your Honor, the

state would invoke the rule.

THE COURT: The rule of witnesses has been

invoked. And that means for both sides, make sure that

none of your witnesses are in the courtroom except for their

testimony. Also instruct your witnesses that they can't talk to

other people about their testimony. They can talk to the

attorneys about the testimony, but that's it. V. 7, p. 13, ll 19-25;

p. 20, ll 1-4.

The purpose of invoking the Rule is to aid in the ascertainment of truth

by preventing the testimony of one witness from influencing the testimony

of another. Parham v. Wilbon, 746 S.W.2d 347 (Tex.App.--Fort Worth

1988, no writ).

The fact that the State made sure the jury knew she was a witness to

various facts in the case such as how the scene appeared when it was fresh

and under active investigation moved her from the role of advocate to

witness without any safeguards to the veracity of the testimony. It was not

28
necessary to the State’s case for Allen or Launius to be a witness. Such

information was given to the jury without warning, and it undermined the

confidence of a fair trial free from undue prejudice. Because the State told

the jury that she herself and her co-counsel had personal knowledge of the

accident scene, the process in which the search warrant was issued and the

chain of custody for Appellant’s blood evidence for the element of

intoxication, everything the State said or advocated was given undue weight

and credibility. Allen and Launius added the stature of their positions with

the District Attorney’s Office to the credentials of their witnesses without

being subjected to the safeguards of oath, the Witness Exclusion Rule, or

cross-examination. The jurors had in their minds the presence of Allen and

Launius throughout the investigation as a result of repeated references to

such by Allen. Because the State vouched for her evidence, the jury’s role

of determining credibility was reduced. Such conduct unfairly put a finger

on the scale in favor of the State and denied Appellant a fair and impartial

trial.

Unfairly Diminished Appellant’s Credibility

At Appellant’s trial, the State presented evidence of Appellant’s

intoxication through testimony of law enforcement officers, medical

personnel and blood alcohol testing. In wrapping up their case, the State

29
called Amber Buckles Jennings, Appellant’s fiancé, and Justin Linkey,

Jenning’s son, to testify as to evidence of Appellant’s intoxication on the day

of the accident. V. 9, p. 28, ll 12-15; p. 155. Jennings testified that

Appellant drank one beer and that there was a bottle with about four shots of

clear liquid in the house earlier that day. V. 9, p. 39, ll 20-25; p. 44, ll 21-

24. Linkey testified that anything he told officers about Appellant’s

drinking in a videoed statement taken before trial must be true. V. 9, p. 158,

ll 1-13; p. 159, ll 3-5, ll 8-10. While both witnesses were reluctant, (Linkey

refused to testify until he was compelled under an order of immunity), they

cooperated and answered the State’s questions. V. 9, p. 27, ll 18-21; p. 153,

ll 21-25; p. 153, ll 1-16. The State did not ask to treat the witnesses as

hostile. After Jennings and Linkey testified about Appellant’s drinking, the

State questioned each of them about their significant history of felony

convictions. V. 9, 32, ll 4-5; p. 42, ll 5-24; p. 43, ll 12-25; p. 44, ll 1-10; p.

16, ll 18-24; p. 162, ll 16-25; p. 163, ll 9-14, 18-25.

The Texas Rules of Evidence authorizes a party to attack the credibility

of her own witness. TEX. R. EVID. 607. However, since the witnesses

were called by the State, cooperated though reluctant, and there was an

abundance of evidence regarding Appellant’s intoxication already admitted,

it appeared that the State called the witnesses as a pretext to impeach them

30
with felony convictions. Such impeachment did little or nothing to prove the

element of intoxication, but was very effective in reaching across the

courtroom and effectively impeaching Appellant with the company he kept.

The tactic was made clear by the prosecutor’s misstatement of TRE 609(a)

to Jennings as follows.

Q. Are you on a felony probation right now?

A. Yes. Doing very, very well on it. But what does

that have to do with anything?

Q. Well, I'm required by law to get into that if you

do have a felony conviction or a crime of moral

turpitude. So I'm required by law to ask you that

question, okay?

A. Uh-huh. V. 9, p. 41, 22-25; p. 42, ll 1-5.

Q. Are you on probation?

The prosecutor made the same misstatement of TRE 609(a) in front of the

jury to Linkey.

Q. Mr. Linkey, have you been recently convicted of a

possession of controlled substance?

A. That doesn't pertain to this.

Q. I understand that. But by law, if you have

31
 felonies or crimes of moral turpitude, I'm legally

obligated to let the jury know that.

A. Well, that still doesn't pertain to this court.

This ain't got nothing to do with him or my

brother-in-law.

Q. So I'm going to ask you gain: Were you recently

convicted of a possession of a controlled substance

where you're serving five years in prison? V. 9, p. 161, ll 9-20.

The State appears to confuse what the trial court must admit with what an

advocate may offer. TRE 609 authorizes an advocate to impeach a witness

with certain prior criminal convictions. A court must admit evidence of a

criminal conviction if it is a felony or a crime of moral turpitude. TEX. R.

EVID. 609(a) (1). However, 609 does not compel an advocate to do so,

rather, in instances where an advocate properly offers such evidence, 609

compels the court to admit it. Id. Misstating the rule of evidence protected

the State from any appearance to the jury that she was “beating up on”

Jennings and Linkey. Such conduct gave the State an unfair advantage.

Continuous vouching for the State’s evidence, putting Appellant’s close

companions on the stand for the primary purpose of impeachment and

erroneously informing the jury that the law required her to impeach

32
Appellant’s companions with felonies and crimes of moral turpitude had the

effect of undermining fundamental fairness in Appellant’s trial resulting in

fundamental error. Prosecutorial misconduct, as in Rogers, “was

pronounced and persistent, with a probable cumulative effect upon the jury”.

Rogers at 361. Appellant was denied due process of law and due course of

law. The judgment of the Trial Court should be reversed and Appellant

should receive a new trial.

PRAYER

For the above reasons, the Appellant respectfully requests the judgment

of the trial court be reversed and that Appellant be acquitted. Should

Appellant not be acquitted, Appellant respectfully requests the judgment of

the trial court be reversed and that Appellant be granted a new trial.

Respectfully submitted,

/s/ Winifred Weber
Winifred Weber
2525 Bay Area Blvd., Suite 310
Houston, Texas 77058
Telephone: (281)488-9040
Facsimile: (281) 488-9009
Electronic mail: winifredweber@gmail.com
SBOT 01672500

33
 CERTIFICATE OF COMPLIANCE
REGARDING FONT AND WORD COUNT

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify
that this brief contains 7,277 words (excluding the caption, table of contents,
index of authorities, signature, proof of service, certification, and certificate
of compliance). This is a computer-generated document created in Microsoft
Word, using 14-point typeface for all text, except for footnotes which are in
12-point typeface. In making this certificate of compliance, I am relying on
the word count provided by the software used to prepare the document.

Respectfully submitted,

/s/ Winifred Weber
Winifred Weber,
Attorney for Appellant

CERTIFICATE OF SERVICE

I, Winifred Weber, Attorney at Law, 2525 Bay Area Blvd., Suite 310,

Houston, Texas 77058, do hereby certify that APPELLANT’S BRIEF

SPECIFYING ERROR OF WHICH APPELLANT COMPLAINS ON

APPEAL, was served to Jack Roady Criminal District Attorney, Galveston

County Courthouse, 600 59th Street, Suite 1001 Galveston, Texas 77551, by

electronic mail at Rebecca.Klaren@co.galveston.tx.us on the 21st day of

March, 2018.

/s/ Winifred Weber
Winifred Weber
Attorney for Appellant

34