*1 with opinion.10 consistent this proceedings ALAMI,
Christopher Appellant, Blake Texas,
The STATE of State.
No. 02-09-00151-CR. Texas,
Court of Appeals
Fort Worth. 6, 2011.
Jan.
Rehearing Jan. Overruled 10. Pursuant to Texas Rule Civil Procedure the term of the court which the mandate WM, filed.’’); process 123, no new necessary. service of is shall be see also HB & Inc. v. ("Where Smith, judgment Tex.R. Civ. P. (Tex.App.-San S.W.2d 1990, writ) that, appeal reversed on (holding by ap- ... because of defective Antonio no process, pealing judgment, service of new citation shall be from appellants default served, personally issued or defendant appeared but the be case and shall further cita- presumed appearance unnecessary). to have entered his tion therefore *3 John, Worth, TX,
J. Warren St. Fort Appellant. Shannon, Jr.,
Joe Criminal District At- torney, Mallín, Charles M. Chief of the Section, Porter, Appellate Andy Richard Betty Arvin, B. Alpert, R. Assistant Crimi- TX, Attorneys, Worth, nal Fort for State. DAUPHINOT, WALKER, PANEL: MEIER, and JJ.
OPINION MEIER, BILL Justice.
I. INTRODUCTION Appellant Christopher ap- Blake Alami peals conviction for felony his murder. In points, argues five Alami evidence insufficient legally factually to sup- port his conviction and that the trial court by overruling abused discretion its his rule objections and his motion a mistri- al. We will affirm.
II. AND FACTUAL PROCEDURAL
BACKGROUND 13, 2008, p.m., On June at around 7:45 mother off at a dropped Alami’s “restaurant”) (the had sibly drinking maybe lo- been been Wings Wild Buffalo intoxicated.” Alami met Fort Worth. cated South restaurant, where at the Kumar Madhuri helped Alami to dif- Bathory transfer leaving alcohol before they both consumed ambulance, Lowery, Nick ferent where p.m. in Kumar’s Lexus. 10:55 at around Lowery examined Alami. paramedic, Lexus north- driving Kumar’s
Alami was
coming
smelled
alcohol-like odor
from
with Kumar
Interstate 35 West
bound on
questioned
him about how much
the left front
seat when
passenger
in the
responded,
had to drink. Alami
he had
*4
rear
right
Lexus
the
the
struck
corner of
“Too much.”
by Shar-
Hyundai being driven
of a
corner
John
transported
Alami was
to
Peter
the road-
lane of
Teel in the center
mon
There, he refused Officer
Hospital.
Smith
of her
maintained control
way. Teel
request
provide
to
Jonathan McKee’s
by the
passed
the
but
Lexus
Hyundai,
sample, so
McKee initiated
blood
Officer
vehicle,
Teel’s
overcorrected
right side of
draw,
mandatory
for a
blood
procedures
roadway,
crossed
right side
the
to the
performed.
which Nurse Denise Nemia
shoulder, overcorrected to
right
the
onto
Alami had a
Test results showed that
back onto
in an
to move
attempt
the left
grams of
blood-alcohol content of 0.19
alco-
rotating
roadway,
skidding
started
and
per
hol
100 millimeters of blood.
roadway,
and
counterclockwise across
felony
left side
The State
Alami for
mur-
into a barrier on the
indicted
collided
der,
alleging
underlying
as the
side of
roadway.
passenger
Specifically, the
felony offense.
indictment
barrier,
with the
Lexus made contact
13,
in
on June
alleged
part
relevant
the vehicle into
crushing
post
the center
2008, Alami did
towards the
pushing
Kumar and
Kumar
Kumar sustained
center of the vehicle.
felony,
there
then and
commit a
to-wit:
re-
injuries
died as a
severe internal
and
intoxicated,
while
after
driving
having
jawa
the collision. Alami suffered
sult of
times
previously
been
convicted two
in the back of his
fracture and
fracture
driving
the offense of
while intoxicated
head.
in the
and
course of and
furtherance
felony,
of the commission of said
he
Bathory,
emergency medical
Kayden
attempted
committed or
to commit an
technician,
helped
arrived
and
at the scene
life,
clearly dangerous
human
act
to
to-
Bathory
Lexus.
Alami exit
wrecked
vehicle
causing
wit:
the motor
he
from
coming
smelled alcohol
Alarm's
driving and
to collide with
operating
was
he
and asked him how much
had
breath
vehicle
and strike another motor
responded, “Too
had to drink. Alami
losing
in the
resulted
defendant’s
control
much.”
driving
the motor vehicle he was
and
it to
operating which did cause
collide
Vincent Brown also arrived on
Officer
guardrail
with a concrete barrier and
Alami, who
spoke
the scene and
which caused the death of Madhuri Ku-
divid-
leaning against
center concrete
was an
in the
occupant
mar who
motor
Ala-
Officer
noticed that
ing wall.
Brown
being
operated by
vehicle
driven and
slow,
red,
slurred
eyes;
mi had
bloodshot
defendant.
alcohol
speech; and a moderate smell of
on
gave
his breath. Alami’s condition
Officer
murder
juryA
convicted Alami
at
pos-
punishment
forty
assessed
Brown the indication that Alami “had
and
his
years’ confinement. The trial court sen-
trier of fact could have found the essential
accordingly.
appeal
tenced him
This
fol-
of the
beyond
elements
crime
a reasonable
lowed.
doubt.
v.
Virginia,
Jackson
U.S.
2781, 2789,
99 S.Ct.
III. EVIDENTIARY SUFFICIENCY
778 (Tex.Crim.App.2007). This standard
points,
In his
and second
first
gives
play
full
responsibility
of the
argues that
the evidence is
legally
trier of fact
to resolve
conflicts
factually
to support
insufficient
his convic-
evidence,
testimony,
weigh
and to
tion. He
wit-
contends
several
draw reasonable inferences from basic
present
nesses—who were also
at the res-
Jackson,
facts to ultimate facts.
443 U.S.
taurant on June
that he
2008—testified
2789;
Clayton,
99 S.Ct. at
prior
appeared to be sober
to when
S.W.3d at
The trier of fact is the sole
Kumar left the restaurant
he did
and that
judge
weight
credibility
clearly
not commit an act
dangerous
*5
See
evidence.
Tex.Code
Proc.
Crim.
Ann.
human life that caused Kumar’s death be-
(Vernon 1979);
State,
art. 38.04
Brown v.
cause he
to avoid Ms.
slower
“tried
Teel’s
564,
270
(Tex.Crim.App.2008),
S.W.3d
568
and
moving
doing
vehicle
so overcor-
—
denied,
U.S.-,
2075,
cert.
129 S.Ct.
Lexus,
rected the
which
it to slide
caused
(2009). Thus,
A. Standard of Review DWI “if the while is intoxicated public In our due review of the suffi- a in a process operating motor vehicle 49.04(a) ciency § support of the evidence to a convic- place.” Tex. Penal Code Ann. (Vernon 2003). tion, we view in the is in all evidence “Intoxicated” defined light part having most favorable to the prosecution alcohol concentration (Vernon 49.01(2)(B) § order to whether any determine rational 0.08 or more. Id. 886 (citations
2003). Lomax, at omit 233 S.W.3d 305 penal chapter Under (“The ted), plain of Section code, language mental culpable state proof a 19.02(b)(3) does conviction. Brown also not exclude for a DWI required not felony-' State, 247, underlying felony for a (Tex.App. DWI as an v. S.W.3d ref'd) and we must under (citing penal prosecution, murder pet. Fort Worth what 49.11, Legislature stand have meant provides part code section 19.02(b)(3) plain language of Section mental state is “proof culpable State, No. expresses.”); see v. Paniagua of an offense required not for conviction 13-08-00228-CR, 672886, *2-4 2010 WL at chapter”). this under Christi Feb. (Tex.App.-Corpus section 49.04 is An offense under (mem. pet.) op., designated publica not for has third-degree felony if defendant tion); No. 03-07- Talamantes any been two times of previously convicted (Tex. 00668-CR, *1 2009 WL operating a mo relating offense to the refd) 19, 2009, App.-Austin pet. Feb. Tex. Penal tor vehicle while intoxicated. (mem. designated publication). op., not (Vernon 49.09(b)(2) Supp. Ann. Code C. Evidence Sufficient 2010). plainly “The has dis Legislature proof culpable pensed with mental record that Ala- demonstrates DWI.” Lomax v.
state mi at the and that met Kumar restaurant (Tex.Crim.App. 304 n. 6 *6 individuals, Ybar- including sevei-al Chalón 2007) 49.11). (citing penal code section ra, Johnston, Hendricks, Ann Karen and Fischer, Stacy Alami consume observed person A commits murder with Ku- leaving alcohol while there before attempts or a felo he “commits commit thought mar. testified Fischer that she ny, manslaughter, other than and in the two had consumed two beers and of and in furtherance of the com course ninety- shots cinnamon in a Schnapps of attempt, or or in the immediate mission period. minute from the he flight attempt, commission attempts commits or to commit an act restaurant, leaving the the left After human clearly dangerous life that front of the that Alami was corner Lexus an individual.” Tex. causes death of on 35 West driving northbound Interstate 19.02(b)(3) (Vernon Penal Ann. Code Hyundai struck rear right corner of a
2003). A offense serve as being that driven in the center was Teel underlying felony felony-murder in a Teel, roadway. lane of was trav- who prosecution: limit eling speed sixty per at the of miles 19.02(b)(3) [Deciding hour, dis- that Section “jolt” a when vehicle was felt her Hams, penses culpable struck, with a mental state is and she and Matt who Teel, consistent the historical of purpose with a vehicle behind observed the driving rule, shoulder, felony-murder very right essence Lexus onto the move cross roadway, person guilty of which is make a of an back to the left and onto the roadway, skidding “unintentional” murder when he causes start across the on person’s during another death the com- collide into a barrier the left side felony. roadway. mission of of a We The collision with the barrier type some 19.02(b)(3) into plainly post that dis- the center the vehicle hold Section crushed Kumar, in- with mental died from internal penses culpable state. who severe performed use, Dr. Nizam Peerwani toxication. How reliable juries. is it to factor, autopsy your determining the cause Kumar’s and identified how person trauma. they’re death as blunt force looks to determine if Kumar’s intoxicated? A. Not accurate. Lowery, According Bathory to both incident, Alami said that had after Q. accurate. actually Not Have there Officer much” to drink. “[t]oo consumed been some studies that have looked red, blood- Brown observed that Alami had that? slow, eyes; and a speech; shot slurred A. have been. There smell of alcohol on his breath. moderate Mandatory blood test results showed Q. you’re And familiar with the Wid- had a blood-alcohol of .19 content mark study? grams per alcohol 100 millimeters A. Yes. over, blood, legal which was limit. twice the opined Q. study Brown intoxi- And what did the
Officer that Alami’s Widmark driving accident. cated had caused the involve?
See Kudemba was, believe, A. It I involved—this (Tex.Crim.App.2010) (“Being intoxicat- they Sweden where had to—in a DWI the scene of a ed at traffic accident to take they person case had before the actor was a some cir- driver is a trained physician physician evidence that intox- cumstantial the actor’s person would then evaluate the and see ”). caused the accident.... ication if they could come to the conclusion that they were intoxicated. Basically Laura Watts as an ex- Deputy testified study bottom line pert fingerprint on identification and con- was that right that the on a set with alcohol thumbprint cluded concentration .15, only that she had from were fingerprints physicians obtained able *7 the right correctly diagnose Alami before trial matched the person as intoxi- thumbprints prior found on of two of Alami’s cated in half the cases. of
judgments conviction for DWI. Q. percent physi- So in 50 of the time .15, misdiagnosed cians someone at a challenges sufficiency the of the times the per almost two se level intoxicated, evidence to show that he was being intoxicated? that arguing several witnesses testified “appeared prior that he to be sober” A. Correct. leaving the restaurant with But Kumar.1 Courtney,
Max an on expert who testified State, a opined person’s behalf that you Q. explain why can it a And that is not a in appearance reliable factor deter- person consumed a large who’s amount mining whether person that is intoxicated alcohol, they, of how can to a casual person large and that a who a consumes observer, to be appear normal? of appear
amount alcohol could not to be By masking. A. what we call to a casual He intoxicated observer. testi- Q. is that? And what examination, direct fied on you Masking The next a Q. thing ability I want to ask A. is an to—it’s subjective you’re about is the evaluation of in- wherein learned behavior able Ybarra, Johnston, Hendricks, witnesses 1. These included and Fischer. to hu- clearly dangerous an act intoxication from committed your symptoms
hide contrary evi- there is man life because the observer. the merely overcorrected that dence common it is the more Okay. And Q. Lexus, free to resolve this jury was alcohol is their the to consume person likewise, evidence, in mask, great- any, favor probably in the conflict ability to it See er? did. Cain the (Tex.Crim.App. 409-10 Yes, 958 S.W.2d A. sir. 1997). re- Moreover, mandatory blood test the a blood-alco- Alami had that
sults showed felony that a disagrees concurrence The per alcohol grams of .19 hol content underlying the offense serve as DWI blood, twice which was over millimeters felony-murder prosecution in a felony limit. legal by statutory changes be made urges commit an he did not argues that follows the majority legislature. to human life be- dangerous clearly act court of criminal interpreted by the law as But Teel’s vehicle. to avoid cause he tried leaves the decision in Lomax and appeals Lovett, accident reconstruc- Timothy legislature. amend the law to in- post-collision performed tionist who gave opinions light of the Lexus in the most spection Viewing the evidence incident, opined that regarding a rational tri- prosecution, to the favorable before working order good was beyond Lexus a rea- fact could have found er of incident, Lexus the driver of the that Alami committed sonable doubt accident, causing fault in was at and, in the of and further- course that he automobile crash type this is DWI, ance of the commission an intoxicated to see when expect would dangerous to hu- clearly an act committed involved, and that sober driver is speeding when he caused the man life Signifi- the collision. could have avoided vehicle, which re- to contact Teel’s Lexus “yaw marks” left behind cantly, using the vehi- losing in Alami’s control his sulted Lexus, Lovett calculated skidding ultimately the vehicle to cle and caused it crossed from of the vehicle as speed barrier, causing with a concrete collide roadway back onto the right shoulder Jackson, at 443 U.S. Kumar’s death. See rotate counterclock- began to skid and 2789; Clayton, at S.Ct. (which after it had contacted wise 778; Ann. also Tex. Penal Code see *8 vehicle) eighty and at between Teel’s 19.02(b)(3). Accordingly, we hold light In per miles hour. eighty-seven support Ala- the evidence is sufficient evidence, jury a rational the above this and felony murder. We mi’s conviction beyond a reason- have could determined points. Alami’s first and second overrule an act Alami committed able doubt that to human life when clearly dangerous IV. RULE 403 OBJECTIONS at an excessive rate of the Lexus drove Lexus to speeding and caused the speed that the point, argues In his third vehicle, resulting in Alami’s Teel’s contact its discretion overrul- trial court abused causing Lexus and it control of the losing objection to the admission his rule 403 ing into the barrier. to collide 11, post-collision pho- Exhibit of State’s interior of showing part of the tograph argues that Alami To the extent Lexus, Ku- including a deceased Kumar’s to show that he is insufficient evidence
889 lying passenger denied, mar seat.2 In his 832, rt. 522 U.S. 118 S.Ct. ce 100, 139 (1997). point, argues fourth the trial L.Ed.2d 54 by admitting court abused its discretion requires Rule 403 that a (State’s photo prior
evidence of his
convictions
graph
probative
have some
value and that
40)
Exhibits 39 and
over his rule 403 ob-
probative
its
value not be substantially
jection.3
outweighed by its inflammatory nature.
403;
Tex.R.
State,
Evid.
Williams v.
301
relevant,
Although
may
evidence
675,
S.W.3d
690 (Tex.Crim.App.2009), cert.
probative
be excluded if its
value is sub
—
denied,
U.S.-,
3411,
130 S.Ct.
177
stantially outweighed by
danger
of un
(2010).
L.Ed.2d 326
A
court
consider
prejudice,
issues,
fair
confusion of the
or
many factors in determining whether the
misleading
jury,
or by considerations
probative value of photographs is substan
delay,
of undue
presentation
needless
tially outweighed by the danger of unfair
cumulative
Tex.R.
evidence.
Evid. 403.
(1)
prejudice, including
the number of ex
Once appellant
objection,
makes a rule 403
(2)
offered,
(3)
hibits
gruesomeness,
their
trial
weigh
probative
court must
(4)
detail,
(5)
size,
their
their
they
whether
value of the evidence to determine if it is
(6)
are in
white,
color or are in black and
substantially outweighed by
potential
its
(7)
they
whether
are close up, whether the
State,
prejudice.
unfair
Santellan v.
(8)
body depicted
naked,
is clothed or
155,
939 S.W.2d
169 (Tex.Crim.App.1997).
(9)
availability of other
proof,
means of
A rule 403 balancing test includes the fol
other circumstances to the individual case.
(1)
lowing
probative
factors:
the inherent
Williams, 301 S.W.3d at
(citing
690
Long
force of
proffered
item of evidence
State,
(Tex.Crim.App.1991),
259,
v.
823 S.W.2d
(2)
along with
the proponent’s need for
denied,
1224,
t.
505 U.S.
cer
(3)
against
that evidence
any tendency of
3042,
(1992)).
S.Ct.
admission of relevant evidence
carry
zone of reasonable disagreement and is
presumption that
relevant evidence is
any theory
correct under
applicable
of law
probative
prejudicial.
more
than
case,
v.
Id.;
Jones
to the
it must
upheld.
be
see
Williams,
944 S.W.2d
652 (Tex.Crim.App.1996),
(stating
the trial clothed, gruesome, no and there are Exhibit 11 A. State’s photograph The injuries external visible. (1) testi Martye Ferguson’s4 corroborated Exhibit to State’s regard With damage extensive mony regarding the did not the trial court argues that (2) vehicle, Lo- side of the passenger required as balancing test conduct a as a Kumar died testimony that vett’s in the following exchange The barrier, rule 403. the collisionwith result of otherwise: record demonstrates (3) Kumar testimony that Dr. Peerwani’s external trauma. any major did not suffer Honor, time I at this Your [Prosecutor]: could be photograph extent To the exhibits, certain publish like would it depicts because disturbing as described witness, the screen. I’d on with this Kumar, portrays photograph a lifeless Exhib- to use State’s permission request disturbing consequences more than the but not to purposes for all it No. 11 Weigh felony-murder offense. Alami’s I have a the screen. publish 11 on factors, court the trial ing the rule 403 Defense At- one that I’ve shown smaller that the reasonably concluded could have well, Judge. you I’ll torney and show was not photograph value of the probative inflamma outweighed by its being substantially offered at Is 11 THE COURT: nature, any. See Garcia tory this time? (Tex.Crim.App.2006), Yes, it is. [Prosecutor]: S.Ct. 1289, denied, 1224, 127 549 U.S. cert. have right. you All Do (2007) (“[W]hen THE COURT: determin L.Ed.2d 106 other objections to 11 any additional admissible under ing whether evidence is just whether do not consider than 403? Rule we pro than prejudicial is more the evidence a run- May I have counsel]: [Defense bative, probative consider whether we 11? ning objection State’s outweighed by the substantially value is But other than the 403 THE COURT: According danger prejudice.”). of unfair objec- you have no additional objection, trial court did not we hold that ly, Alami’s by overruling tions? abuse its discretion Exhibit objection rule 403 to State’s No, Your Honor. counsel]: [Defense We over by admitting photograph. At this time it’s bal- THE COURT: point. rule Alami’s third 11 is ad- overruled. State’s anced and Exhibits 39 and 40 B. State’s you may purposes. all And mitted for Exhibits 39 and regard to State’s With use, any running objection have the trial court did argues testimony concerning 11. display balancing test. conduct a rule 403 not [Emphasis added.] the balanc- expressly conducted trial court follows: ing test as that State’s Exhib- argues Alami further Honor, inflame the time I nothing more “than to at this it 11 did Your [Prosecutor]: Ex- purposes all State’s for the State.” We dis- offer for jury sympathy would No. 40. Exhibit hibit No. 39 and State’s and white The exhibit is a black agree. *10 spond to the incident. paramedic to re- Ferguson was the first 4.
891 Currently, a which a County THE there’s rele- Collin court found COURT: Alami objection pending vance before the guilty of DWI. State’s Exhibit 40 is a objection? You that re-urge Court. 9, judgment of conviction dated October 2007, in County which a Denton court re-urge objec- I that [Defense counsel]: Alami guilty found of a second DWI. Ala- tion, yes, Your Honor. mi did not stipulate prior objection THE COURT: That is over- Therefore, convictions. to convict Alami of a 403 objection. ruled. You also have DWI, felony prove the State had to at the you objection? Do re-urge that guilt-innocence phase that Alami had two Yes, as to both in- [Defense counsel]: prior convictions for DWI —two essential struments, and 40. State’s 39 felony elements of the DWI offense. The THE objection is bal- value probative COURT: Your of State’s Exhibits 39 and against was, anced the entire record. It’s very high. 40 consequently, Alami individually specifi- also overruled directs us to in no evidence the record that 403, cally, objection. 401 and as to each the State used this evidence for a purpose they’re 39 and 40. both And admitted. jurisdictional other than prove ele- [Emphasis added.] felony ments of DWI.5 argues that also the evi factors, Weighing the rule 403 the trial prior dence of his convictions “did no more reasonably court could have concluded than jury sympathy to inflame the for probative value of State’s Exhibits 39 the State.” A disagree. We 40 substantially outweighed was not charged felony be with DWI if he has two by the danger prejudice. of unfair See previous convictions DWI. Tex. Penal Garcia, 201 704. Accordingly, S.W.3d at 49.09(b)(2). prior Code Ann. The two we point. overrule fourth Alami’s necessary DWI offenses are elements of DWI; they felony juris offense of are Y. MISTRIAL dictional, opposed to mere enhancement State, allegations. See Martin v. 200 In his point, argues fifth 635, (Tex.Crim.App.2006); S.W.3d 640 the trial its court abused discretion (Tex. Wheeler, State v. 790 S.W.2d overruling his motion for mistrial be Therefore, App.-Amarillo pet.). closing argument cause the at State’s DWI, to obtain a conviction tempted proof. to shift the burden prove prior State must two DWI con guilt-innocence stage victions at the of tri trial We review a court’s refus State, al. See v. 63 S.W.3d Barfield grant al to a mistrial for an abuse of 448 (Tex.Crim.App.2001); Mapes v. discretion. Wood (Tex.App.-Houston S.W.3d To (Tex.Crim.App.2000). permissi be ref'd). 2006, pet. [14th Dist.] ble, jury argument the State’s must fall Here, following four general within one judgment State’s 39 is a Exhibit (1) (2) 21, 2006, evidence; April of final conviction dated areas: summation of Further, out, points any proving as the State the trial offense” and not "in manner charged jury only tending prove court that it could con- intoxicated [Alami] prior operating public sider the evidence Alami’s while vehicle in a convictions motor June, place day 13th "on the issue of whether the Defendant was on or about committing alleged time of the 2008.” *11 892 evidence; objec- sustaining THE COURT: I’m the from the
reasonable deduction (3) precaution. coun as a argument opposing of tion answer to sel; (4) for law enforcement. plea I’d ask to the Court [Defense counsel]: (Tex.Crim.App.2008), 570 Brown v. S.W.3d disregard jury to the com- instruct — denied, t. U.S. cer prosecutor. ment -, L.Ed.2d 1139 129 S.Ct. jury: will THE COURT: I instruct the (2009). jury argu whether To determine proof. The has no burden of Defense argument we ment is assess improper, and in context. as whole Cruz I’d ask the Court [Defense counsel]: (Tex.Crim.App.2007). S.W.3d a mistrial. exchanges following The occurred: THE That will be COURT: denied. Repeatability, ... corrob- [Prosecutor]: argument The State’s above followed de- a lot spend oration. And he wants to of included argument, fense counsel’s which And, talking time about Mr. Lovett. following: what, if you know Mr. Lovett did not behavior, essence, Did cause you testimony, if he help understand the Well, you the death Kumar? if of Ms. the testimo- help you didn’t understand believe struck of the back [Alami] out, ny, him we don’t then toss because the Santa I’m into going get Fe—and to And the incredible need him. that’s speed Mr. calculation of the Lovett’s case, evi- thing weight this about car in a minute because I think have, dence we have rested we could they’re horribly explain flawed and I will testified, adding after EMTs after you why.... to testimony prior about convic- his tions, by the because time the EMTs stand, you
took the had evidence from this, In Exhibit Mr. State’s No. Teel—and idea that Sharmon this hypothetically point Lovett draws a damage avoiding somehow he was —that collision, you point collision. “Do that, accident, you an believe then the know the collision Mr. happened, where ap- damage to Sharmon Teel’s vehicle Lovett?” air, nothing peared out of thin he had
do with it. “Well, I hap- don’t know where it pened.” very explained you,
Mr. Lovett clearly. The version that he would like you “Did Detective Are ask Davis? have, the version that he wished was any objects ground there on the that we re- here that Sharmon was somehow could look to?” he sponsible. impossible. It is And has somehow, arbitrarily, “No.” But he proof. you know if burden Don’t “Well, just puts it there and I up says, expert there an that he could have was use measure. That’s not don’t it for brought taken into this courtroom to Well, what I use it for measurements.” Lovett, dispute you findings Mr. depiction pretty important how would heard it? have You would have thought it the car happened how heard it. turned. Object that. counsel]: It’s [Defense proof. complained-of argument— to shift the attempt burden State’s jury immediately It’s an improper argument. pros occurred after *12 jury ecutor reminded the that Alami “has individual during the commission of a felo- proof’ no burden of proper because ny, including DWI, a felony the State —was it was made in response to defense coun proves felony However, murder. the un- argument sel’s challenging Lovett’s calcu derlying felony alone cannot be the act lations and conclusions. Because the clearly dangerous to human life. argument State’s was within one of the court, This courts, our sister and the permissible
four jury areas of argument, Texas Court of Criminal Appeals have all we hold that the trial court did not abuse addressed the issue of whether felony its by denying discretion Alami’s motion murder and intoxication manslaughter are for mistrial. See Blue v. No. 14- pari is, materia. That we have all 09-00184-CR, 2010 WL at *6-7 addressed question of whether (Tex.App.-Houston proving Apr. [14th Dist.] (mem. is, death during alone, pet.) DWI op., not sufficient designated for publication) prove felony (overruling appellant’s murder. argu We have held that it ment that the trial court is not. abused its discre This court explained, mistrial). by denying tion his motion for a Importantly, felony murder and intox-
ication manslaughter require different VI. CONCLUSION proof. elements of Felony murder re- quires the commission anof underlying Having overruled Alami’s five points, we felony, which intoxication manslaughter affirm the trial court’s judgment.
does not—a can be convicted of manslaughter intoxication even if he was DAUPHINOT, J. concurring filed a committing misdemeanor DWI at opinion. time his actions caused another’s death. Felony requires murder also DAUPHINOT, LEE ANN Justice, defendant have committed “an act clear- concurring. ly life,” dangerous to human yet Appellant Christopher Blake Alami was intoxication manslaughter ap- statute charged murder, with felony with plies when the defendant causes a death (DWI) driving while intoxicated as the by “accident or mistake.”2 predicate felony. Appellant challenges the Felony requires murder an underlying evidence, sufficiency of the majori- and the felony as well clearly second act dan- ty correctly holds the evidence sufficient gerous to human life that results in the under the Jackson standard. But the ma- death of another person.3 Intoxication jority mistakenly states that I do not be- manslaughter requires lieve DWI and felony DWI can death.4 serve as the underly- Clearly, cannot, alone, ing felony in felony-murder be the act prosecution.1 long clearly So as the proves dangerous State that a to human defen- life. If it were, dant clearly committed act dangerous every manslaughter intoxication to human life that caused the death of an would be a murder the driver had Majority 1. op. at 888. 19.02(b)(3) § 3. See Tex. Penal Code Ann. (Vernon 2003). 2. Strickland v. 667-68 (Tex.App.-Fort ref’d) (cita- pet. Worth (Vernon 2010). Supp. Id. 49.08 omitted). tions *13 DWI, first, third, fourth, fifth of the or ing convicted driver’s previously
been twice DWI,8 position the forced State is into the or to plead no need to and there would be driv- trying of the intoxicated separate clearly dangerous act an prove additional ing from DWI. to human life. Respectfully, I would the submit a convic- has affirmed majority
The here assess situation to legislature should the serves murder when DWI felony tion for the appropriate whether it is for determine clearly felony and act the predicate as the for to be penalty manslaughter intoxication life is intoxicated human the dangerous to committing the higher person when the out, majority points Timo- driving. As the previously offense has twice been convict- Lovett, reconstruetionist thy the accident DWI, making of the DWI a ed current that the for the stated who testified felony easily legislature DWI. The can that killed Kumar was automobile crash the so that intoxication rewrite statute he would crash that type the automobile manslaughter a first or even second for an driver when intoxicated expect see can range punish- have a different DWI could person involved a sober because com- manslaughter ment from intoxication Brown the collision.5 Officer have avoided already mitted who been person has driv- Appellant’s intoxicated testified twice of DWI.9 convicted the act Although wreck. ing caused the may flow clearly dangerous to human life judicial Neither nor the ex- branch felony, the naturally underlying from ecutive branch makes laws. Neither the the act to be legislature permitted has not judicial branch nor the executive branch felony offense. underlying pun- appropriate range determines the ishment. These decisions fall within require- Felony has two distinct murder province exclusive As legislature. underlying ments: the commission re- Appeals the Texas Court of Criminal may require a felony, or not us, minds state, of an act mental and the commission Legislature’s stat- interpret [W]e clearly dangerous to human life.6 utes, not its intentions.... As the Su- understandably wanted a State ..., preme “[I]f Court reminded us range than intoxi- higher punishment something Congress enacted into law provides person for a manslaughter cation intended, it it different from what then committing felony when who was it should amend statute to conform Be- person.7 caused the of another death beyond province its It intent. is our single pun- range cause there is now a Congress drafting to rescue from er- its manslaughter, rors, might ishment intoxication provide what we dur- think ... resulting preferred whether death is caused is the result.”10 Majority § op. 5. 8. See id. 887-88. 49.08. 19.02(b)(3). §
6. Tex. Penal Code Ann. See, 49.09(b 1), (b 3) (b 2), (ele- e.g., id. — —— vating manslaughter to a first- intoxication 19.02(b), (c) (providing §§ 7. See id. degree peace killed was a felony), generally first-degree is murder officer, firefighter, emergency medical ser- (providing manslaughter 49.08 intoxication discharging duty). generally second-degree felony). personnel vices an official agree Because I evidence is suffi- support Appellants
cient to conviction but legislature
also believe that the should con- modifying range punishment
sider
available under the intoxication man-
slaughter statute when defendant has *14 convictions,
multiple I respectfully
concur. BRODERICK,
JOHN A. INC. d/b/a Partners,
Worldbridge
Appellant,
KAYE BASSMAN INTERNATIONAL
CORP., Appellee.
No. 05-09-00692-CV. Texas,
Court of Appeals
Dallas.
Jan. 2011.
Rehearing
March
Overruled
tee,
(Tex.
1023, 1034,
10. Getts v.
U.S.
124 S.Ct.
(2004)).
Crim.App.2005) (quoting Lamie v. U.S. Trus-