Justin James Forsyth v. State ( 2018 )

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
vii
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