Daniel Canada v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 6, 2024
• Docket: 01-22-00958-CR
• Status: Published

Opinion

Opinion issued August 6, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00956-CR NO. 01-22-00957-CR NO. 01-22-00958-CR NO. 01-22-00959-CR ——————————— DANIEL CANADA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court Harris County, Texas Trial Court Case Nos. 1795834, 1795835, 1795836 & 1795837

MEMORANDUM OPINION A jury found appellant, Daniel Canada, guilty of four separate felony offenses

of intoxication manslaughter with a deadly weapon.1 After finding true the

allegation in an enhancement paragraph that appellant had been previously convicted

of a felony offense, the trial court assessed his punishment at confinement for life

for each offense, to run concurrently. In three issues, appellant contends that the

evidence is insufficient to support his convictions and the trial court erred in denying

his motion for mistrial.

We affirm in appellate cause numbers 01-22-00956-CR and 01-22-00958-CR.

We affirm as modified in appellate cause numbers 01-22-00957-CR and

01-22-00959-CR.

Background

Appellant’s traffic stop

Harris County Sheriff’s Office (“HCSO”) Deputy G. Clayton testified that on

Sunday, March 14, 2021 at around 8:00 p.m., he was leaving an “extra job” he had

at a “flea market in [the] Greenspoint area” of Harris County, Texas in a HCSO

crime investigation truck. He was driving northbound on Interstate 45 (“I-45”) at

about sixty-five to seventy miles per hour and noticed an Audi car “traveling at a

1 See TEX. PENAL CODE ANN. § 49.08. Appellate cause no. 01-22-00956-CR, trial court cause no. 1795835. Appellate cause no. 01-22-00957-CR, trial court cause no. 1795834. Appellate cause no. 01-22-00958-CR, trial court cause no. 1795836. Appellate cause no. 01-22-00959-CR, trial court cause no. 1795837.

2 high rate of speed,” which he first explained was “over [eighty]” miles per hour and

later clarified that the car was driving closer to ninety miles per hour.

Even though Deputy Clayton did not have a law enforcement ticket system or

ticket book in his truck, he felt the need to deescalate the driver’s speed. So, Clayton

“initiated [his] overhead emergency lights and attempted to pull [the Audi car] over.”

The Audi car did not pull over right away. Eventually, though, appellant pulled his

Audi car over into a gas station at the Parramatta Lane exit of I-45.

After appellant stopped, Deputy Clayton, while displaying his firearm, had

appellant exit the Audi car. Clayton placed him in handcuffs, patted him down, and

had him sit outside of the Audi car. Clayton took these extra measures because

appellant had been “moving around” inside the car, and Clayton was concerned that

appellant might have been reaching for a weapon.

When Deputy Clayton asked appellant why he took so long to stop his Audi

car, appellant responded that “[h]e thought he was going to jail.” Appellant admitted

that he had smoked marijuana, and he told Clayton that he had marijuana in the back

of his Audi car, so Clayton “assum[ed]” that appellant had responded the way he did

because of the marijuana. Clayton could smell “an odor of marijuana” coming from

appellant’s Audi car, but he did not smell alcohol on appellant.

Deputy Clayton testified that he found and confiscated a bag of marijuana

from the Audi car. He glanced over the other contents of the Audi car but did not

3 do a thorough inspection. He collected appellant’s identification but did not check

to see if appellant had any outstanding warrants. Instead, Clayton asked appellant

for his cellular telephone number and “logged everything in so [he] could” prepare

a report and follow up later. After he collected the information for his report,

Clayton allowed appellant to drive away.

The complainants

Rhonda Branch testified that complainant 1, Porsha Branch, 2 was her

daughter. Complainant 2, M.H., complainant 3, K.H., and complainant 4, D.H.,

were her grandchildren.3 On the evening of March 14, 2021, complainant 1 was

driving a Toyota Camry car on Farm to Market Road 2920 (“FM 2920”). Branch

explained that complainant 4, an infant, was buckled in a car seat in the back seat on

the passenger’s side of the car. Complainant 2 and complainant 3 were also buckled

in the back seat of the Toyota Camry car, although not in car seats. According to

Branch, on the evening of March 14, 2021, complainant 1’s Toyota Camry car was

involved in a car crash.

2 The record indicates that complainant 1 was twenty-eight years old on March 14, 2021. 3 The record indicates that on March 14, 2021, complainant 2 was a two-year-old male child, complainant 3 was a four-year-old male child, and complainant 4 was a six-month-old male child.

4 The car crash

Devlen Runnels testified that on the evening of March 14, 2021, she and her

boyfriend, Brian Harris, had gone to a bar near FM 2920 and I-45 to play darts. They

left the bar around 8:00 p.m. to go home, with Runnels driving westbound on FM

2920 in a Toyota truck. About the time they passed the FM 2920 and Falvel Drive

intersection, Runnels noticed a set of headlights on a car “coming up behind” her

truck “very quickly to the point where [she] thought that” the car was “going to hit

[her].” This occurred about five to seven minutes before Runnels and Harris reached

the FM 2920 and Gosling Road intersection. The car “eventually backed . . . off, but

[Runnels] kept [her] eye on [it] because . . . it made [her] nervous.” Runnels

continued driving, while glancing at her rearview mirror “just to make sure that” the

car “wasn’t . . . going to get close again, that [it] had backed off . . . a little way[].”

Runnels further explained that as she approached the FM 2920 and Gosling

Road intersection, she was “trying to decide” whether to “go home down Gosling

Road or . . . [to] keep going to Kuykendahl [Road] and hit [the] Whataburger”

restaurant, as she and Harris “usually [did].” She then put on her blinker to get “into

the right-hand lane” so that she could make the right turn from FM 2920 onto

Gosling Road. She checked her rear-view mirror and side-view mirrors “to see . . . if

anybody was there,” then moved into the right-hand lane. Just after she had moved

over, “the other car flew past.” The cars in the intersection were at a standstill.

5 Runnels “grabbed [Harris’s] arm” and said, “They’re going to hit someone.”

(Internal quotations omitted.) Runnels looked over and “the next thing [that she]

knew, [she] saw a big ball of fire.”

Harris testified that on the night of March 14, 2021, he was riding in the front

passenger seat of a Toyota truck driven by Runnels. While on their way home on

FM 2920, Runnels moved the truck into the right-hand lane as they approached the

intersection of FM 2920 and Gosling Road. Runnels grabbed his leg, and Harris

looked up to see “flames” at the intersection. Runnels stopped the truck.

Harris further explained that he got out of the truck and ran to the driver’s side

of the burning car, which was a Toyota Camry, “[b]ecause [he] saw a leg hanging

out, and [he] wanted to help get . . . the person out.” First, he “pulled on the door

handle,” but the door “wouldn’t open.” Then he “pulled on [the person’s] leg” to

try to free her from the Toyota Camry car, but “it felt like” she was “pinned on the

passenger[’s] side.” The car was “on fire,” and “it was hard to see with all the

smoke.” Harris did not get any response from the person as he tried to free her from

the burning Toyota Camry car.

According to Harris, someone handed him a fire extinguisher and he emptied

the whole canister onto the burning Toyota Camry car, but it did little to abate the

fire. By then, firefighters had arrived at the scene and told Harris “to step back.” So

6 he “stepped back” and got “out of the way,” but he stayed nearby in case the

firefighters needed any help.

Harris and other bystanders who had been helping then went to the other side

of the burning Toyota Camry car, and “someone was able to get that door open,

and . . . got one of the little boys out.” Harris “grabbed . . . the little boy” and placed

him on a gurney that emergency medical service (“EMS”) personnel had placed near

the burning Toyota Camry car. Harris did not encounter appellant while he was at

the scene.

Jonathan Roy Aguilar testified that he lived a few miles north of where the

car crash occurred. Around 8:00 pm on March 14, 2021, he was traveling home on

FM 2920 with his wife, who was driving their Nissan sports utility vehicle (“SUV”).

When they reached the FM 2920 and Gosling Road intersection, they waited in the

left-hand turn lane at the traffic light facing “eastbound on [FM] 2920,” about to turn

left to go northbound on Gosling Road. Their SUV was the first car in the left-hand

turn lane. Aguilar noted that he “[s]aw [an] Audi [car]” driving and compared to the

flow of the traffic around it, “it was going much faster” than “the other vehicles.”

Aguilar stated that the car crash then happened “very quick[ly],” like in “[s]econds.”

“[T]he [traffic] light had just turned [red] for the other side,” and the cars on his side

of FM 2920 “were still waiting” at the traffic light.

7 Aguilar further recounted that after the initial impact occurred between the

Audi car and another car, he and his wife “just saw chaos, really, because the crash

came towards [them].” They “didn’t really see how it occurred”; they “just

saw . . . cars coming toward[] [them].” Aguilar “saw a big truck coming toward[]

[his SUV] and then another [car]” that he “couldn’t identify,” but later became aware

that it “was the [Toyota Camry car] that [had] caught on fire” during the car crash.

The truck and the Toyota Camry car “hit [Aguilar’s SUV] in the front” and “kind of

just exploded.” The force of the impact “pushed back” Aguilar’s SUV somewhere

“between [five] to [ten] feet.”

According to Aguilar, his SUV had damage to the front end, mostly on the

passenger’s side of the SUV, but Aguilar and his wife were not physically injured.

Aguilar instructed his wife to back up their SUV because the Toyota Camry car in

front of them was on fire, and their SUV “w[as] just really close to it.” The flames

from the Toyota Camry car “were going all the way up to the streetlights” and “the

turn signals,” about thirty to forty feet high. During Aguilar’s testimony, a

videotaped recording of the car crash involving the Audi car, which was captured by

a surveillance camera at the Houston Methodist Spring Emergency Care Center at

the intersection of Gosling Road and FM 2920, was admitted into evidence.

Jessica Withers, a case manager with the Texas Department of Criminal

Justice in Huntsville, Texas, testified that she was visiting her fiancée in Tomball,

8 Texas on the evening of March 14, 2021, when she was called to her job. On her

way to Huntsville, Withers stopped at the red traffic light eastbound on FM 2920 at

the Gosling Road intersection in the center lane, next to the left-hand turn lane.

There were two cars in front of her. She had a dashboard camera, which she turned

over to law enforcement officers after the car crash. Immediately after the car crash,

Withers tried to pull the driver and one of the children out of the burning Toyota

Camry car, but she was unsuccessful.

Tony Basan testified that on March 14, 2021, he, his wife, and his

five-year-old daughter were driving on FM 2920 toward I-45 in their truck. At the

intersection of FM 2920 and Gosling Road, Basan stopped the truck in the second

position in the middle lane at the traffic light. As they waited for the traffic light to

change to green, they suddenly heard “a big boom noise.” And “as soon as [they]

looked up,” they saw an airborne truck coming toward them “from the left.” At the

same time, they felt the airborne truck hit their truck, and another “car that was on

fire” landed “literally right in front of [them].” Basan explained that the impact from

the airborne truck made their truck’s airbags deploy and their truck’s windshield

crack. Basan’s wife, Ann Torrez, sustained a concussion, either from the impact of

the airborne truck or the force of the airbag’s deployment. Basan moved their truck

away from the burning car by “back[ing] up and mov[ing] to the other side of [FM]

2920, going the opposite way from [I-]45.”

9 Torrez testified that on the evening of March 14, 2021, she and her family

“were looking for somewhere” to have a dinner. Basan, her husband, was driving

their truck on FM 2920. At the intersection of FM 2920 and Gosling Road, Basan

stopped at a red traffic light. While stopped, Torrez “heard a loud boom” but did

not “know where it [came] from.” When she looked up, she saw another truck

“flying toward[] [them].” Torrez thought it would be stopped “because there [was]

a [car] in front of them.” But “when it hit that [car], it still kept coming really fast,”

so she “braced again” and the airborne truck hit the truck she was in.

Torrez explained that she “flew forward” and started to “hit the windshield,”

but she was stopped by the truck’s airbag that had deployed. Her “daughter was in

the back seat yelling and crying.” “She was scared because she saw the truck fly

toward[] [them].” The cars behind them “backed up” so that Basan could move their

truck away from the fire. The family then got out of the truck; they “heard people

screaming” and “saw smoke.”

Torrez further testified that after exiting the truck, she saw a man sitting near

a light pole about ten feet away from her. “There were [law enforcement] officers

and fire[fighters] around him,” but it looked like “[h]e couldn’t stand on his own so

[she] assumed that he was part of the [car crash], like, he was injured.” According

to Torrez, the man’s “demeanor, . . . [was] like he wasn’t there, . . . like when

someone is blacked out, that was his demeanor.” “The fire[fighters] and the [law

10 enforcement] officers were helping him up[,] and they got him in an ambulance and

they left from the scene.”

Megan Basra (“Megan”) testified that on the evening of March 14, 2021, she

was in a truck stopped in the left-hand lane at the traffic light at the intersection of

FM 2920 and Gosling Road. Her husband, Manak Basra (“Manak”), was driving

the truck, and she was in the front passenger’s seat. While they waited for the traffic

light to change to green, Megan was talking to Manak. As she was talking, Megan

“saw sparks a little in the distance but on the other side of road, just fly up, . . . like

fireworks.” She exclaimed “Manak,” to get his attention. (Internal quotations

omitted.) Then, as Megan turned her head to look directly at Manak, she “saw the

headlight of a truck start barreling toward[] [them].” When the truck hit their truck,

the impact made their truck jolt backwards, and she felt her “seatbelt tighten[].”

Megan “remember[ed] screaming[,] and [they] were moving and moving and

moving” backwards. She felt “a few impacts,” and she wondered to herself,

“[W]hen [wa]s this going to stop?” The truck then stopped, and they “were at a

standstill.”

Because the driver’s side of their truck “took the impact,” Megan “looked to

[Manak] to make sure that he was okay.” Megan was disoriented and not “sure what

to do next.” She “could feel the fire that was near [them].” Manak directed her to

11 get out of the truck “as quickly as possible.” But Megan “couldn’t open [her] door,”

so Manak “reached across” her and opened it.

When Megan and Manak walked to the front of their truck, they “saw [a]

silver car was stuck into the side of [their] truck.” And they saw appellant “sitting

down on the ground leaning against the [silver] car [on] the driver’s side.” It was

too dark to see whether he had any injuries. Megan “saw [appellant] get up and start

to walk over” near a light pole. He stumbled a few times on his way. As appellant

was stumbling, Megan said to Manak, “He looks drunk.” (Internal quotations

omitted.) Another person “helped [appellant], and he eventually made it to the

l[ight] p[ole],” where he sat down. According to Megan, appellant “seemed just out

of it.” But she was too far away from him to tell if he smelled of alcohol.

Manak testified that on the evening of March 14, 2021, he and Megan had

“just finished having dinner” with Megan’s parents and were headed home. Manak

was driving their truck, and he “took [FM] 2920 headed east toward[] [I-]45, and

then [he] stopped at the Gosling [Road traffic] light . . . in the left[-hand] traffic

lane,” between the left-hand turn lane and the right-hand lane.

Manak thought that the traffic “seemed quite heavy for a Sunday night.”

When they stopped at the traffic light, “all the lanes [of traffic] were filled.” While

stopped, Manak was looking straight ahead, when “the [f]irst thing [he] saw . . . was

just sparks flying up.” Megan “yelled [his] name; and then out of nowhere [there]

12 were just headlights beaming straight at [them].” He started screaming because

“[t]here was nothing [he] could do” to get out of the way of the oncoming car.

Manak reached his arm across Megan to try to protect her and “then just basically

felt just multiple collisions.” The truck’s airbags deployed, and Manak felt “an

intense heat.” Then, he saw “smoke behind [him], so [he] knew [that] some car was

on fire.” Manak realized that he and Megan needed to get out of the truck

immediately, but his driver’s side door “would not move at all.” So he “reached

over” and opened the front passenger’s side door. After Megan got out, Manak

climbed over the center console and exited the passenger’s side of the truck.

After Manak got out of his truck, he saw “a pretty swole black dude . . . melt[]

out of” an Audi car. He explained “melt” as “like, when you’re on the couch and

you . . . just kind of, like, slide off because you don’t really feel like getting up. Like,

a very lazy just, like, I’m not going to move. I don’t want to use my legs.” Manak

recalled that appellant “was just sitting there” until “a bystander came and helped

him up.” That was when Megan said, “Hey, that guy looks drunk. Get your camera

out.” So Manak took out his cellular telephone and took a photograph of appellant.

As appellant was helped over to a light pole, Manak noted that he was “wobbly, like

a baby giraffe” and “[d]idn’t have his feet under him almost like . . . your first time

on skates.” Manak did not initially see any injuries on appellant, but as appellant sat

13 next to the light pole, Manak noticed that appellant had “a cut on his forehead and

blood.”

Wendy King (“Wendy”) testified that on the evening of March 14, 2021, she

and her husband, Lance King (“Lance”), had just picked up their daughter at a

cupcake and ice cream shop where she worked, which was located on FM 2920 just

east of Ella Boulevard. They picked their daughter up between 8:00 to 8:30 p.m.

before heading west on FM 2920 toward their home in Tomball.

When the Kings approached the traffic light at the intersection of FM 2920

and Gosling Road, it was red. They stopped in their truck in the “center lane” and

had other “vehicles behind [them].” When the traffic light turned green, they

“started to go.” Wendy then heard the car directly behind them get hit, and she felt

“a very hard impact”—so hard that her “glasses came off [her] face” and the airbags

in the truck deployed. After that, she felt “another impact, and [the truck] w[as]

pushed through the intersection to the left and into oncoming traffic,” causing the

truck to hit “two, maybe three” other cars.

According to Wendy, the truck was so damaged that there was “pretty much

not a straight panel on the entire vehicle.” The driver’s side front door had “popped

open” and would not close. “The back window was broken out,” and “[t]here was

glass everywhere” inside the truck. Because of the broken “glass on the back seat,”

Wendy’s daughter had to get out of the truck by climbing over the center console

14 and crawling out the driver’s side front door. Wendy noted that “there was smoke

billowing into the cabin of the truck” from a burning car that was behind them.

Wendy further explained that “OnStar” emergency services was connected to

the Kings’ truck, and she stayed in the truck to speak with the OnStar representative.

Meanwhile, Lance went “to try to help” the occupants of the burning car. By that

time though, the fire had been extinguished. After she finished the call with OnStar

emergency services, Wendy “found [her] glasses, [Lance’s] glasses, [her cellular]

[tele]phone,” and Lance’s cellular telephone, which had all gone “flying from the

impact.” Wendy then got out of the truck.

Wendy noted that she saw appellant’s Audi car at the scene. She recalled that

when she was standing near it, she could smell marijuana, “like, somebody had

smoked it.”

Lance testified that on the evening of March 14, 2021, he was driving a truck

on FM 2920, with Wendy in the front passenger’s seat and his daughter in the back

seat on the passenger’s side. As he approached the intersection of FM 2920 and

Gosling Road, the traffic light was red, and his truck was in the middle lane. After

the traffic light turned green, he felt the car behind him “g[e]t hit.” After the initial

impact of the car crash, Lance’s truck was “pitched” on the diagonal “to the right.”

As he “felt the truck lift,” he focused on “steer[ing] and stop[ping].” The truck was

being pushed into oncoming traffic, so Lance slammed on the brakes and kept “all

15 [his] weight on the brake pedal,” but he could not regain control of the truck. After

being hit by “oncoming traffic, . . . the air bags [in the Kings’ truck] went off,” and

Lance lost his glasses. The truck then came “to a rest not long after that.”

Lance got out of the truck and saw a car that was on fire near the passenger’s

side of his truck. He went with two other men to the burning car. Lance tried to get

the burning car’s front driver’s side door open but was unsuccessful. Eventually,

Lance and the other men were able to open the burning car’s passenger’s side rear

door. They tried “to see if there was somebody there[] and pulled out a small boy”

who appeared to be about three or four years old.

Lance’s initial reaction, as a father, was to “clutch[]” the boy and “talk[] to

him.” Lance thought he “should try CPR,” but there was too much debris on the

ground. Lance then “notice[d] an Audi [car] on the other side of [his] truck, so [he]

went over and laid [the boy]” on the trunk of the Audi car. Lance began to perform

CPR on the boy while someone else was “yelling at [him] how to do it.” The boy

was unresponsive. At some point, someone who he believed was with EMS

appeared and said, “[W]e got to take him.”

First responders

Harris County Constable’s Office (“HCCO”), Precinct 4, Deputy M. Carter

testified that she was on patrol on March 14, 2021, when she was dispatched at

8:40 p.m. to the scene of a car crash at 5300 FM 2920 Road, near the intersection of

16 FM 2920 and Gosling Road in Harris County. She was the first law enforcement

officer to arrive at the scene; the fire department and Cypress Creek EMS were

already there. Carter described the scene as “[c]haos.” “Approximately [twenty]

people” were milling about, and some family members of those involved in the car

crash had arrived. Some were screaming, and there was “a lot of crying.”

When she first arrived at the scene, Deputy Carter had a brief encounter with

appellant. According to Carter, appellant “was sitting on the ground by [a] light

po[le].” “He said he had a headache,” but he did not appear injured. She was about

sixty feet away from appellant, so she was not close enough to him “to smell any

alcohol,” and she did not detect any signs of intoxication.

Deputy Carter further explained that she approached the EMS personnel that

were present at the scene and offered to help. While they waited for a Life Flight

helicopter to arrive, she was assigned to “[p]erform CPR” on complainant 3, a young

male who had been pulled from the burning Toyota Camry car. Carter observed that

complainant 3’s “face was bloody,” as if he had “hit his face on something.” He had

lacerations to his nose and his cheeks. He was not responsive and “had no pulse.”

Carter “[f]elt like” she performed CPR on him for about thirty to forty minutes,

before using a bag valve mask resuscitator on him for another forty minutes.

According to Deputy Carter, complainant 3 got back “a form of

consciousness”; his pulse returned. Carter saw him “looking around for a short

17 amount of time,” but then he stopped. She later learned that complainant 3 “didn’t

make it.”

After EMS no longer needed her assistance, Deputy Carter focused her

attention on the Toyota Camry car that had been “engulfed in flames.” When she

looked into the car, she saw the bodies of “[a] female and [an] infant

[child] . . . burned into the seat of the vehicle.”

Zachary Dunlap, an emergency medical technician (“EMT”) with Cypress

Creek EMS, testified that on March 14, 2021, he was dispatched to a car crash at the

intersection of FM 2920 and Gosling Road. Dunlap explained that when he first

arrived at the scene, he saw “multiple vehicles with significant damage,” as well as

one that “looked to be fully engulfed” in flames. He administered CPR to

complainant 3. The first thing that he observed “was the blood coming from

[complainant 3’s] face and . . . that he was lifeless”; he did not appear to be

breathing. Dunlap “[c]ontinue[d] the CPR and then start[ed] working on

[complainant 3’s] airway because [he] didn’t see any” external injuries on

complainant 3 that needed immediate medical treatment.

While in the back of the ambulance with complainant 3, Dunlap “continued

resuscitative measures” and intubated complainant 3 “to secure [his] airway.”

Dunlap then performed a thoracostomy to release “any blood or air that may have

18 accumulated” and to “let the lungs re-inflate” in case complainant 3 had a collapsed

lung, which was a potentially reversible cause of death in a “traumatic arrest patient.”

Through Dunlap’s efforts, complainant 3 “regain[ed] a pulse,” but his pupils

remained “fixed and dilated,” which indicated that complainant 3 had a “[s]ignificant

brain injury.” According to Dunlap, complainant 3’s pulse continued for “around

[twenty] minutes” while Dunlap was attending to him, but Dunlap did not know how

long complainant 3’s pulse continued after that. Dunlap observed that generally a

“[t]raumatic arrest ha[d] a very low survival rate.” For that reason, his approach to

treating complainant 3 was to first address “the potential reversible causes,” by

helping him breathe and then “giv[ing] him thoracostomies” to see whether

complainant 3 could survive. If those efforts were unsuccessful, Dunlap then would

try to “maintain a pulse” in case complainant 3 could potentially be an organ donor.

A Life Flight helicopter ultimately transported complainant 3 to the hospital.

Ricardo Rivera, an EMT with Cypress Creek EMS, testified that on March

14, 2021, he was dispatched to a car crash at the intersection of FM 2920 and Gosling

Road. Upon arrival at the scene, Rivera remembered hearing over the dispatch radio

that one of the child complainants from the crash had been taken to the Houston

Methodist Spring Emergency Care Center across the street from the scene.

Accordingly, Rivera went into the emergency care center and found the doctor who

was treating complainant 2, a two-year-old male. After finding complainant 2,

19 Rivera “saw that [he] was already intubated” and unresponsive. Rivera explained

that “at all times” complainant 2 remained unresponsive, and he was not “breathing

at all.” At the emergency care center, personnel were using a bag valve mask to

oxygenate complainant 2, who had “a heart rate of 107.” The emergency care center

personnel had not been “able to get a blood pressure” reading, which indicated that

complainant 2 was in shock. Eventually, Rivera took complainant 2 out of the

emergency care center so that he could be transported by a Life Flight helicopter to

the hospital.

Medical treatment of appellant

Nick Stuart, an EMT with Cypress Creek EMS, testified that on March 14,

2021, he was “in a field officer training role” and was working with a trainee, Trystan

Foret. At around 8:30 p.m., Stuart and Foret were dispatched to a car crash at the

intersection of FM 2920 and Gosling Road. Before they “arriv[ed] on-scene, they

were informed that the[ir] patient,” appellant, “was going to be by a [light] pole on

the corner of the intersection.”

Upon arrival at the scene, Stuart saw “wrecked cars pretty much throughout

the intersection.” When Stuart spoke with appellant, appellant “seemed somewhat

confused.” Stuart and Foret “had to ask [appellant] his name several times before

he answered.” Appellant eventually “referred to himself as ‘D.’”

20 According to Stuart, appellant “had a fairly large abrasion” to the top of his

head near his forehead, and Stuart and Foret determined “that [appellant] probably

had a head injury” because of the location of the abrasion and because he was acting

“altered.”

At some point, appellant was taken to an ambulance. While appellant was in

the ambulance, Stuart and Foret attempted to “establish[] IV access” but appellant

kept “trying to pull . . . out” the intravenous line. Stuart did not “smell anything

particular on [appellant’s] breath,” but appellant “[h]ad a very strong odor about him

of marijuana.” As to why he did not smell alcohol on appellant, Stuart stated that he

did not “happen to smell alcohol very well.”

Stuart further testified that on the way to a hospital, appellant appeared to have

reflexive movements that resembled posturing and had “seizure-like activity,”

which, according to Stuart, were very common to see after a head injury. Stuart and

Foret gave appellant ketamine to sedate him.

Foret testified that on the evening of March 14, 2021, he was an EMT trainee

with Cypress Creek EMS, when he was dispatched, along with Stuart, to the scene

of a car crash at the intersection of FM 2920 and Gosling Road. Foret noted that

when he arrived at the scene, one of the cars involved in the crash “had recently been

extinguished,” and according to Foret, it had been “burned beyond recognition.”

Foret then made contact with appellant, who was leaning against a light pole. Foret

21 recalled that appellant’s clothes smelled of marijuana, and Foret stated that he could

smell alcohol on appellant’s breath. Appellant was subsequently taken by

ambulance to a hospital.

Stacie Nieburger-Smitham testified that she previously worked at Memorial

Hermann The Woodlands Medical Center (“Memorial Hermann—The Woodlands”)

in the hospital’s laboratory. On March 14, 2021, hospital staff drew blood and urine

specimens from appellant for the purpose of his medical treatment. Appellant’s

medical records from the hospital contained narcotics-use testing results showing

that appellant tested positive for benzodiazepines, cannabinoids, and opiates. They

also showed that appellant’s blood-alcohol concentration (“BAC”) was 0.15 grams

of ethanol per 100 milliliters of blood.4

Law enforcement officers’ investigation

HCCO, Precinct 4, Sergeant K. Walker testified that on the evening of March

14, 2021, he was dispatched to the intersection of FM 2920 and Gosling Road

following a car crash. Upon arriving at the scene, he saw appellant being treated by

EMTs near the light pole on the northeast corner of the FM 2920 and Gosling Road

intersection. When Walker saw the EMTs “begin to wheel [appellant] away on[] a

stretcher towards an ambulance,” he went over and asked the EMTs “if they knew

4 Copies of appellant’s medical records and the hospital’s laboratory records related to appellant were admitted into evidence at trial.

22 who [appellant] was, what sort of vehicle he came out of or any other information

like that.” They responded that “they did not have any identifying

information . . . for [appellant], but they did tell [Walker] that [appellant] was being

transported to” Memorial Hermann—The Woodlands.

Deputy Walker “relayed that information to the other [law enforcement]

officers” at the scene. He also contacted HCCO Deputy D. Simmons, who was not

at the scene, and instructed him “to go to the hospital to try to get a status update”

on appellant’s condition. After Walker learned that appellant “was the driver of the

Audi [car] and that he [might have been] under the influence of either alcohol or an

unknown drug or narcotic,” Walker also went to the hospital.

Deputy Walker further explained that upon arriving at the emergency

department at Memorial Hermann—The Woodlands, he found appellant

“unconscious and intubated.” The hospital disclosed that appellant’s BAC was 0.15

grams of ethanol per 100 milliliters of blood, and appellant had “[cannabinoids],

benzodiazepines, and opiates in his system.”

While Deputy Walker was at the hospital, he also encountered the EMTs from

Cypress Creek EMS who had transported appellant to Memorial Hermann—The

Woodlands. Walker asked EMT Stuart if he had noticed whether appellant had “an

odor of alcohol or marijuana.” Stuart told Walker “that he just noticed a strong odor

of marijuana coming from [appellant].”

23 HCCO, Precinct 4, Sergeant A. Setterbo, a member of the accident

investigation team, testified that on March 14, 2021, he responded to a call notifying

him “that a major [car] crash had happened” at the intersection of FM 2920 and

Gosling Road. Setterbo arrived at the scene about 10:00 p.m. By the time he arrived,

other law enforcement officers had “already secured the scene” and had blocked “all

the roadways.”

Sergeant Setterbo further explained that “[t]he scene was very hectic,” with a

lot of law enforcement officers and emergency services responders. There were also

“civilians trying to help other people out,” and apparently some “family members

[were] on scene.” Additionally, there were possible witnesses who had been

“secured on-scene just in case they knew anything that could . . . help with [law

enforcement officers’] investigation.”

According to Sergeant Setterbo, he familiarized himself with the car crash

scene by “walk[ing] [it] a few times.” And he started to “understand[] what specific

parts” of the investigation that law enforcement officers “really needed to focus on.”

He “walk[ed] the scene” with the law enforcement officer who was taking

photographs to make sure that “specific parts” were documented, such as where law

enforcement officers “believe[d] the initial impact occurred” and “other debris

fields” that might not have been documented initially.

24 While at the scene, Sergeant Setterbo took out “the Sokkia Total Station,” a

type of “surveying equipment” that he used to calculate the “GPS points of where

debris [wa]s found” as well as “gouges or skid marks or scrapes . . . in the roadway.”

The Sokkia device had three parts: (1) the “head unit,” which “measure[d]

everything,” (2) “the pole unit,” and (3) “the tablet,” which was used to operate the

device. In addition to debris and marks on the roadway, an operator of the Sokkia

device could “add some reference points along the roadway,” so that the GPS points

laid over a map of the roadway would be “the exact measurements.” Setterbo

explained that “all those measurements [we]re just little pieces of the puzzle to help

[the law enforcement officers] reconstruct the [car] crash.”

Sergeant Setterbo further testified that the measurements taken with the

Sokkia device were ultimately used to create an illustration of the position of the

cars involved in the car crash just before it happened. The illustration, a copy of

which was admitted into evidence, depicted “the intersection of Gosling Road and

FM 2920 and where [law enforcement officers] believe[d] the cars were

located . . . prior to the crash.” The illustration was made using a computer software

program that placed “the GPS pinpoints” on “a map of the scene; and those GPS

pinpoints [were] overla[id] on the roadway to show . . . exactly where th[e] evidence

[wa]s located on the roadway.”

25 Sergeant Setterbo next described the type of damage sustained by the different

cars involved in the crash. As to the damage to the Toyota Camry car, where the

complainants were found, Setterbo explained that the car had sustained both

front- and rear-end damage, which “from all the crashes” that he had investigated,

usually indicated “that it was in the middle of two [cars] when the crash occurred.

So[,] it [got] hit from the rear and pushed into the vehicle in front of it.”

As for the Kings’ truck, Sergeant Setterbo noted that from one point, the

damage “look[ed] like it [was] in the front; but the way that the tailgate” was also

“bent up,” he could tell that the truck had been hit hard enough at its rear-end “to

bend the frame of the truck up.”

As to appellant’s Audi car, Sergeant Setterbo explained that it had “all heavy

front-end damage.” The hood was “bent up” and the front end was “bent . . . down.”

The front-end damage on the Audi car indicated to Setterbo “[h]ow serious the crash

was” because it had “bent everything up on it.” But the main “thing that stuck out

to [Setterbo] more than anything else was how bad[ly] the Toyota [Camry car

carrying the complainants] was crushed.” Further, according to Setterbo, the

damage to the Toyota Camry car “matched up with the damage on [appellant’s] Audi

[car].” And the front-end damage on the Toyota Camry car showed that “[t]he

pathway of th[e] Audi [car] . . . was pretty much directly in an east to westbound

direction, so it was pretty much a square-on hit.”

26 HCCO, Precinct 4, Sergeant J. Churgin testified that on March 14, 2021, he

went to the car crash scene at the intersection of FM 2920 and Gosling Road.

Churgin arrived after EMS had already transported certain individuals away from

the scene. While there, Churgin “walked the scene to . . . assess the situation.” He

saw “several cars in the intersection.” One car was completely burned, and two of

the complainants’ bodies were still in that car. Churgin also saw the Audi car that

was involved in the car crash. The Audi’s front driver’s-side door was open, and

Churgin “smelled the odor of marijuana coming from the inside of the car.”

Sergeant Churgin contacted HCCO, Precinct 4, Sergeant R. Wolsey to come

to the scene. Then, Churgin “gathered all the witnesses and . . . brought them back”

to his patrol car, where they waited for Sergeant Wolsey to interview them.

According to Churgin, Wolsey’s witness interviews were recorded on Churgin’s

patrol car’s dash camera and his “body-worn camera.”

A day or two later, Sergeant Churgin assisted Sergeant Wolsey at the

“accident investigation [car] lot.” They collected DNA samples from the interior of

the Audi car, and Churgin took photographs to document the collection. After

Churgin photographed the airbags that had deployed in the Audi car, Wolsey

collected them as evidence. Later, Churgin and Wolsey also “did some

mathematical measurements based on [a] video[taped recording] from the [car

crash] scene.” And Churgin assisted Wolsey with conducting a time/distance

27 calculation using a videotaped recording from a surveillance camera at the H-E-B

grocery store near the FM 2920 and Gosling Road intersection.

Sergeant Wolsey testified that he was the West Side Patrol Supervisor and his

primary duties involved accident reconstruction and car accident investigation. He

arrived at the car crash scene on March 14, 2021 around 9:15 p.m.

Sergeant Wolsey explained that on March 14, 2021, he used Sergeant

Churgin’s body-worn camera to record all the witnesses that he interviewed that

night. Wolsey determined that certain cars involved in the crash had been moved

from their original post-crash positions, but through witness interviews, he was able

to place the location of each car before the crash onto a map.

As to the car crash itself, Sergeant Wolsey identified “three separate harmful

events” that occurred in the crash. The “first area of impact” was where complainant

1’s Toyota Camry car was stopped or in slow motion at the time it was struck from

the rear by appellant’s Audi car. The “[s]econd area of impact” occurred “[w]hen

the Audi [car] came in contact with” complainant 1’s Toyota Camry car, and both

cars “moved forward as one unit.” Together the Audi car and the Toyota Camry car

struck the back of the Kings’ truck. The “[third] area of impact” was where

complainant 1’s Toyota Camry car and appellant’s Audi car “initially enter[ed] the

intersection as one unit,” then “separated,” and the Toyota Camry car struck the front

of Aguilar’s Nissan SUV. Next, complainant 1’s Toyota Camry car skidded

28 “sideways,” struck “a glancing blow to the front of [Aguilar’s] Nissan [SUV],” and

“erupt[ed] into flames.” Appellant’s Audi car, meanwhile, veered into “more of a

45- to maybe 50-degree departure from the original direction of travel,” until it

struck the front driver’s side door of Manak’s truck.

Sergeant Wolsey further explained that the Kings’ truck continued moving

from the impact in between Aguilar’s Nissan SUV and Manak’s truck, and then

struck Manak’s truck, putting it “into . . . motion before [appellant’s] Audi [car]

pick[ed] it up and carrie[d] it to [its] final rest[ing]” place. The Kings’ truck then

continued its path, striking Basan’s truck “on the front left corner of the vehicle.”

Sergeant Wolsey noted that appellant’s Audi car had damage “distributed all

across the front,” which showed that “the force that the Audi [car] sustained came

straight in from the [twelve] o’clock position.” The front hood of appellant’s Audi

car “was crushed up,” and there was “a lot of intrusion to the windshield.” The

damage to the front hood showed that “[s]omething rode up onto the hood” or that

there was “enough force that it crushed from the bumper all the way into the hood

back to where it met maximum engagement.” Wolsey explained that “[m]aximum

engagement [wa]s a term used when one or multiple vehicles come into contact with

each other or an object,” when “the energy of that car . . . [wa]s met to the point

where it c[ould] no longer continue going through a hit.” According to Wolsey,

“once [a car] reache[d] the maximum engagement, it[] [was] not going to penetrate

29 any further. It w[ould] reach and it w[ould] have, like, a form of elastic rebound

where they[] [would] separate from each other.”

Sergeant Wolsey also noted that all the damage to the front of complainant

1’s Toyota Camry car occurred because it was pushed underneath the Kings’ truck.

That damage came from “the twelve o’clock position,” i.e., it was “fully distributed

across the front” of the car. The intrusion to complainant 1’s Toyota Camry car “was

quite severe”, “and the maximum engagement reached all the way to the shaft of the

front seats.” According to Wolsey, the severity of that damage to complainant 1’s

Toyota Camry car was rated at a seven, which was the highest damage ranking for a

crash report. “The damage rating to the rear” of complainant 1’s Toyota Camry car

was rated a six. That damage came from “the [six] o’clock position,” i.e., the rear

and “was rear distributed.” As to the Kings’ truck, Wolsey opined that the damage

“was caused when it hit the glancing blow between” Aguilar’s Nissan SUV and

Manak’s truck.

Sergeant Wolsey also explained that he used a FARO 3D scanner at the car

crash scene to create data points and then used the FARO software program to create

a series of animations that reconstructed the car crash. Using those tools, and after

“nearly a year of investigation,” Wolsey was able to compile the information

necessary to reconstruct the car crash to determine its cause. Wolsey explained that

as appellant’s Audi car approached Gosling Road, it “did not adjust or account for

30 the impeding hazard.” And because of appellant’s “failure to control speed at 115

miles an hour,” his Audi car struck the back of complainant 1’s Toyota Camry car.

According to Wolsey, that impact caused appellant’s Audi car and complainant 1’s

Toyota Camry car to merge into one unit as they traveled forward, striking the rear

of the Kings’ truck. The “momentum and energy was enough” to carry both cars

into the Kings’ truck, which then “thr[e]w all three of those [vehicles] into the

intersection.” The Kings’ truck and complainant 1’s Toyota Camry car then

“separated from [appellant’s] Audi [car]. The Audi[] [car’s] momentum continued

at a glance toward the left or at about a 45[-]degree angle.” At the same time, the

“momentum of the [Kings’ truck] and [complainant 1’s] Toyota [Camry car]

continued forward into” Manak’s truck and Aguilar’s Nissan SUV. Then, as the

Kings’ truck and complainant 1’s Toyota Camry car “came together,” the Toyota

Camry car “entered into a side slip or a side skid, at which point the side of the

[Toyota Camry car] struck the front of [Aguilar’s] Nissan [SUV] at the same time

that the [Kings’ truck] struck [Manak’s] truck resulting in an initial explosion -- a

burst of explosion.” The Kings’ truck’s momentum “continued through th[at] path”

until “it struck the left front quarter of [Basan’s] truck, and then it finally c[a]me to

rest.”

According to Sergeant Wolsey, the impact of complainant 1’s Toyota Camry

car into the Aguilar’s Nissan SUV forced the SUV “back a slight distance.” It also

31 “set [Manak’s truck] into a side skid to where [appellant’s] Audi [car] picked

[Manak’s truck] up.” And “[w]hen [appellant’s] Audi [car] hit [Manak’s truck], it

shoved it back” with enough force that Manak’s truck went into the “right front of

[a] Buick [car],” then continued to a final resting place.

Sergeant Wolsey opined that as a result of the chain reaction—which

appellant set in motion—complainant 1’s Toyota Camry car “burst into flames,

resulting in” the complainants’ deaths.

Sergeant Wolsey also noted that during his investigation he eliminated other

certain potential causes of the car crash that killed the complainants. He explained

that “[i]n this case, there was no signage,” “no broken-down vehicles” obstructing

the roadway, “no pedestrian cross traffic,” “no other traffic,” and “no bright lights

too close to the roadway that would blind the individual as [he] approached.” And

according to a CARFAX report, appellant’s Audi car had no mechanical issues.

Wolsey’s review of appellant’s medical records and driving record did not reveal

that appellant had any health condition that might have affected his driving.

Sergeant Wolsey further testified that appellant’s BAC was 0.15 grams of

ethanol per 100 milliliters of blood and appellant tested positive for cannabinoids

and benzodiazepine. Wolsey remarked that ethanol, cannabinoids, and

benzodiazepine were substances that were “central nervous system depressants,

[meaning they] tend[ed] to slow down a person’s reaction time.” Wolsey also

32 observed that appellant’s Audi car was travelling at 115 miles per hour when it hit

complainant 1’s Toyota Camry car. According to Wolsey, that was a “reckless and

extremely dangerous” speed at which to be travelling.

Forensic evidence

Jason Gaswint, a Harris County Institute of Forensic Sciences (“HCIFS”)

toxicologist, testified that as part of his job, he “perform[ed] scientific testing[] on

biological fluids and tissues to identify any drugs or chemicals in the body.” In this

case, Gaswint tested the urine sample which was collected from appellant at the

hospital.

Gaswint detailed the processes that he used to analyze specimens, including

quality control procedures. He tested appellant’s urine sample twice. The “first

analysis [wa]s to screen for the presence of ethanol” in appellant’s urine. And the

“second analysis [wa]s to confirm the results from the first analysis.” Gaswint

prepared a laboratory report related to his urine analysis, a copy of which was

admitted into evidence. He stated that the legal limit for ethanol in Texas was “0.080

grams of ethanol per 67 milliliters of urine.” The test result for appellant’s urine

sample was 0.113 grams of ethanol per 67 milliliters of urine, which was above the

legal limit.

James Sailors, a HCIFS toxicologist, testified that, as part of his job, he

analyzed “biological samples for the presence of drugs, alcohol, and/or chemicals.”

33 Sailors explained that he tested the blood samples drawn from appellant at the

hospital; one blood sample was drawn from appellant for medical purposes and the

other blood sample was drawn from appellant pursuant to a search warrant. A

toxicology report, a copy of which was admitted into evidence, showed that the

sample of appellant’s blood drawn for medical purposes was drawn on March 14,

2021, at 9:11 p.m. At that time, appellant’s BAC was “0.123 [grams of ethanol,

plus/minus 0.019 gram[s,] per 100 milliliters” of blood. This was higher than the

legal limit which Sailors stated was 0.08 grams of ethanol per 100 milliliters of

blood. The toxicology report further stated that the sample of appellant’s blood

obtained pursuant to the search warrant was drawn on March 15, 2021, at 3:40 a.m.

At that time, appellant’s BAC was 0.028 grams of ethanol per 100 milliliters of

blood.

Kelsey Cooper, a HCIFS toxicologist, testified that she analyzed appellant’s

blood sample that was drawn pursuant to the search warrant to determine whether

tetrahydrocannabinol (“THC”) was present in the appellant’s blood. She determined

that THC was present in the blood sample.5

5 A copy of the toxicology report that was admitted into evidence showed that appellant’s blood sample that was obtained pursuant to the search warrant was positive for THC.

34 Chianti Porter, a HCIFS toxicologist, testified that she analyzed plasma from

the sample of appellant’s blood that was drawn for medical purposes. And she

testified that she found THC “present” in appellant’s blood sample.6

Andrew Greenwood, a toxicologist at HCIFS, testified that he tested the blood

sample drawn from appellant pursuant to the search warrant, and he identified the

presence of alprazolam, a benzodiazepine, in appellant’s blood sample.7

Francisco Chavez, a HCIFS toxicologist, testified that he tested the blood

sample drawn from appellant for medical purposes for the presence of alprazolam,

and he found that alprazolam was “present” in that sample.8

Dr. Anna Kelly, HCIFS’s Assistant Director of Forensic Toxicology,

provided general information about laboratory analysis, the effects of ethanol on the

human body when operating a car, and the absorption of ethanol into the body’s

bloodstream. She explained that “[e]thanol [wa]s classified as a central nervous

system depressant.” The “central nervous system [wa]s comprised of the brain and

6 The copy of the toxicology report that was admitted into evidence showed that appellant’s blood sample that was drawn for medical purposes was positive for THC. 7 The copy of the toxicology report that was admitted into evidence showed that appellant’s blood sample that was obtained pursuant to the search warrant was positive for alprazolam. 8 The copy of the toxicology report that was admitted into evidence showed that appellant’s blood sample that was drawn for medical purposes was positive for alprazolam.

35 spinal cord, so it[] [was] responsible for controlling the actions of the body.” And

the ingestion of ethanol caused “depression of [a person’s] inhibitions.” At first,

“some people become more talkative” after ingesting ethanol. But “[a]s the

[ethanol] level” in the person’s bloodstream rises, “more complex

functions . . . [become] compromised,” causing “increased reaction time, slowed

information processing, increased risk-taking,” and impairment of other functions

“like that.” As the ethanol level in a person’s bloodstream continues to “rise[] past

that, . . . more basic functions” become “compromised and depressed.” A person

might “slur[] [his] speech, not able to walk in a straight line, [and] things like that.”

Dr. Kelly also observed that driving a car constituted “a divided attention

task.” Different things happened every time a person drove, so a person “ha[d] to

be able to see something and respond to it.” If a person was “under the influence of

ethanol [though], [he was] going to take longer to respond to situations.” He “might

have issues maintaining [his] position within [his] lane of travel” while driving or

he “might have issues [with] . . . seeing something and hitting the brakes if [he]

need[ed] to.” Perceiving the distance between the car the person was driving and

the next car ahead of him could be compromised as well.

Dr. Kelly noted that THC could also “impair somebody’s cognition and

perception” by “caus[ing] issues with increased reaction times, as well as . . . the

ability to stay within” a traffic lane while driving. And THC could “impair

36 tracking,” so “if [a person was] driving behind somebody and [the other person]

change[s] [her] speed, that perception of that speed changing [would] also [be]

impaired under the influence of THC.”

As to alprazolam, Dr. Kelly explained that it was a benzodiazepine and similar

to ethanol. It was “classified as a central nervous system depressant so [a person]

would expect [to have] th[e] same kinds of issues with impairment while driving as

[he] would with ethanol.” Common side effects from using alprazolam included

“drowsiness, confusion, [and] sedation.” Further, Dr. Kelly stated that if someone

took “a combination of [ethanol, THC, and alprazolam],” the person would be

expected to have more impairment than if just one of those substances had been

taken. Dr. Kelly reported on a study that she had reviewed in which individuals were

dosed with ethanol until they had “approximately a 0.04 level of ethanol in the

blood,” and they were also given THC in “different concentrations” before being

sent “out on the road to drive.” The results of the study showed “impairment [that

was] consistent with [a BAC] above [0].08” when the ethanol and THC were

“combined.” And Dr. Kelly noted that combining ethanol and alprazolam was

reported to have a similar “additive effect.”

Megan Chapin testified that in March 2021, she was working as a Forensic

Death Investigator at HCIFS for the Medical Examiner’s Office Division. Chapin

explained that as a forensic death investigator she worked “directly under a medical

37 examiner/pathologist” and “assist[ed] the medical examiner/pathologist in

determining the cause of death.”

Chapin further explained that on March 14, 2021, she first arrived at the car

crash scene at the intersection of FM 2920 and Gosling Road at about 11:13 p.m.,

but “because the scene was so large and law enforcement [officers] had so much to

photograph and process . . . before anything could be moved, they were not ready”

for her to “start looking at possibly moving the individuals who had died,” so she

left the scene and returned about an hour and a half later.

Upon returning to the scene, Chapin found that complainant 1’s Toyota

Camry car “was pretty crushed in on both the front and back ends” and “was

charred.” She could see the bodies of complainant 1 and complainant 4 inside in the

car. Complainant 1 “was in the front area” of the car, and complainant 4 was in “the

back seat,” which had been “so crushed in” that complainant 4 “was kind of pinned”

between the “metal framework of the back and front seats.” Because of the fire

damage to complainant 1’s car, “the seats didn’t even have fabric” on them; they

“were just metal frames.” Chapin also could not find any fabric “indicating a seat

belt or even if the air bag had gone off or not because there was just so much

damage.”

Because it was dark outside, it was difficult for Chapin “to see exactly what

everything was.” In the back seat of complainant 1’s Toyota Camry car, Chapin saw

38 “a lot of clothing,” “debris,” and “plastic.” Complainant 4 “was kind of on his side

with . . . some sort of object kind of around or behind [him].” After complainant 4’s

body was moved out of the car, Chapin “could see there was actually kind of a shell

that looked like a car seat.” It had “the backing of a car seat and fabric and what

could have been the fabric of the car seat straps.” But “[e]verything was so charred”

that it was difficult for her “to say exactly how that had been,” but it “looked to [her]

like [complainant 4] was lying back in a car seat.”

In examining complainant 4’s body, Chapin observed that his hands had

“some bone exposure” due to thermal damage. She also saw “some blood-tinged

substance . . . coming out of [his] nose.” Complainant 4’s skin had been “burned

away” on his skull, and there was “some fracturing of the skull . . . that showed some

brain exposure from that area and then from the nose, as well.”

As to complainant 1, Chapin observed that she was an adult female whose

body was lying across the driver’s seat and the front passenger’s seat with her back

against the middle console. Chapin noted that “[t]here was a lot of plastic and other

debris” pushed to the front of the car and complainant 1’s body was lying “with her

head on top of items that were in the [front] passenger’s seat” and her left foot was

“on the floor of the driver’s side.” Complainant 1’s body “also had some thermal

injuries” and “some bone exposures” on both of her legs and her right arm. And

39 there were “burns all over her clothing,” which had been “ripped or burned away to

an extent.”

At this point during Chapin’s testimony, the trial court announced that it

would take a five-minute break. A person sitting in the courtroom then began crying,

and the bailiff escorted the jury out of the courtroom. The trial court told the person

who was crying, “Ma’am, you need to leave the courtroom. Thank you.” A short

time later while the jury was not present, the trial court stated the following:

All right. We are on the record. The jury is outside of the courtroom. I’m sure there is something that [appellant] is going to want to put on the record but so that any reviewing courts have the full picture, from the [trial court]’s point of view. The – who I assume are family members of the complainants have, in [the trial court]’s opinion, been very quiet throughout the proceedings. There have been no audible or even visible displays of emotion. The [trial court] could see, though the [trial court] does not believe the jury noticed, that one woman who has been present for the entire trial was dabbing at her face, but it was not audible.

The [trial court] could sense, because the [trial court] has a direct line of sight to the complainant[s’] family or whoever has been showing up, that it was a good time to take a break because, while they were not audible and, again, I don’t even think visible to this jury, the [trial court] could appreciate that that would have been emotional testimony for someone who knew the complainants.

The [trial court] released the jury in an effort to give those family members a breather. [The trial court] would say six members of the jury were still filing out of the courtroom and the door to the jury – the hall leading to the jury room was open when the woman in question began audibly sobbing.

40 [The trial court] asked everyone to leave and [the State] escorted the family out to the vestibule that is outside of the courtroom. There were audible displays of emotion, not actual words, but cries from people who were here for the complainants.

The jury was filing out. The [trial court] would assume that at least some of the jurors heard what were cries.

Does anyone want anything else to be on the record?

Appellant’s counsel then responded:

This is why we objected and we have been trying to stipulate because we knew this was going to be emotional testimony and it was walking the line into unnecessary, very gruesome emotional testimony about bones and brains coming out and all of this other stuff that was unnecessary.

[The trial court] did – I would agree with [the trial court]. [The trial court] excused – made a break when we could not hear and I actually never saw that happening. However, when [the trial court] asked for a break, that is when – it’s the mother of [complainant 1], she was the one sitting here the whole time. She began to shriek at the top of her lungs as the jury was filing out.

Then another woman behind her also began to shriek at the top of her lungs and sobbing, emotional crying as the jury was still in this room and walking out. And then once they got outside, . . . they raised their voice[s] even more to include shrills and shrieks so we could all hear; and I’m sure half of this floor of the court heard.

And I’m sorry, . . . but we’ve warned the State about this emotional testimony. [The trial court] had cautioned [the State] if we’re going to have any, we need to give them a warning about the sensitive material that’s going to be brought out. I already objected ten minutes before this happened and told them I’m stipulating to the deaths of these four people that died as a result of an accident that [appellant] caused. The State has refused to accept the stipulation and, therefore, by eliciting this testimony and causing this emotion, I reluctantly – even though I do not want to – I reluctantly must move for a mistrial. 41 The State replied:

. . . [T]his is a terrible emotional case. The human beings [who] are sitting in the back, I have counseled them many times before trial. I have told them about the evidence that is going to come out. I have told them to -- when certain witnesses are about to take the stand, that if they cannot take that, please step out. And like the [trial court] has observed, for the majority of this trial, they have stayed quiet. They have limited their emotional outbursts. I haven’t heard any until today, but I can also understand that sometimes people have a breaking point.

I would ask the [trial court] to deny the mistrial.

The trial court denied appellant’s request for a mistrial, explaining:

There has been much discussion . . . of stipulating to the death of the complainants; and [trial court] think[s] the record should reflect that the [trial court] has told both sides that if they want to reach some stipulation agreement, that the [trial court] w[ould] entertain that. But as of right now, that has never happened. The [trial court] is of the opinion that the State is allowed to put on testimony and evidence regarding the deaths of the complainants.

So the record is clear – just because it’s on my mind now – the [trial court] has seen very graphic video evidence of the complainants who were in – found deceased in the vehicle. The [trial court] has been told by the State that there are numerous photographs of both [complainant 1] and [complainant 4] that are not being offered to this jury.

In fact, to be frank, the [trial court] has been pleasantly surprised by how little graphic evidence in picture or video form there has been of the bodies that were in the vehicle, the bodies of [complainant 1] and [complainant 4]. So that is not a statement on how [trial court] will rule, but [trial court] want[s] the record to reflect that outside of the testimony of this witness, there has not been a lot of visual evidence of the bodies of [complainant 1] and [complainant 4].

42 After the jury returned, the trial court gave it an instruction requested by appellant,

stating:

. . . [Y]ou are instructed to disregard the emotional outburst that occurred just before you left the courtroom and you are instructed that you may not consider it as any evidence or for any purpose whatsoever. You may also not mention it nor discuss it in any of your deliberations.

The trial court also polled the jury, asking each of the jurors if they could promise

the trial court that they would “not consider the emotional outburst for any reason

and base [their] verdict solely on the facts and evidence presented in this case.” All

jurors responded that they could.

Dr. Pramod Gumpeni, HCIFS’s Deputy Chief Medical Examiner, testified

that the complainants died because of the car crash. She explained that the

complainants’ autopsies had been performed by Dr. Lucile Tennant, who had retired.

Complainant 1’s cause of death was “multiple blunt force injuries and thermal

injuries,” and Dr. Gumpeni opined that complainant 1 died instantly.9 As to

complainant 2, Dr. Gumpeni stated that complainant 2’s cause of death was “[b]lunt

force and thermal injuries,” and complainant 2 died after being taken the hospital.10

9 A copy of complainant 1’s autopsy report was admitted into evidence. It stated that complainant 1, a twenty-eight-year-old female, died at 8:49 p.m. on March 14, 2021 at 5100 FM 2920. Complainant 1 was the driver of a car that was involved in a car crash. 10 A copy of complainant 2’s autopsy report was admitted into evidence. It stated that complainant 2, a two-year old male child, died at 1:57 a.m. on March 15, 2021 at a hospital. Complainant 2 was a passenger in a car that was involved in a car crash and was taken to the hospital by a Life Flight helicopter.

43 As to complainant 3, Dr. Gumpeni testified that complainant 3 died at the hospital

and the cause of his death was “multiple blunt force injuries.” Most of complainant

3’s blunt force injuries were to his head.11 Complainant 4 was a six-month old male

child, and his cause of death was “multiple blunt force and thermal injuries.”12

Sufficiency of Evidence

In his first and second issues, appellant argues that the evidence is legally

insufficient to support his four convictions because the State failed to prove that the

car crash “occurred because of the intoxication” and the State failed to prove that the

car crash “occurred due to accident or mistake.”

We review the legal sufficiency of the evidence by considering all of the

evidence in the light most favorable to the jury’s verdict to determine whether any

“rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Williams v.

11 A copy of complainant 3’s autopsy report was admitted into evidence. It stated that complainant 3, a four-year-old male child, died at 10:01 p.m. on March 14, 2021 at a hospital. Complainant 3 sustained multiple blunt force injuries to his head, torso, and extremities. He was a passenger in a car that was involved in a car crash and was taken to the hospital by a Life Flight helicopter. He was pronounced dead at the hospital thirteen minutes after arrival. 12 A copy of complainant 4’s autopsy report was admitted into evidence. It stated that complainant 4, a six-month-old male child, died at 1:57 a.m. on March 15, 2021 at a hospital. Complainant 4 had scattered abrasions and contusions, broken teeth, jaw, ribs, and femurs, and thermal injuries to his scalp, neck, and back. He was a passenger in a car that was involved in a car crash and was taken to the hospital by a Life Flight helicopter.

44 State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due process

safeguard, ensuring only the rationality of the trier of fact’s finding of the elements

of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866,

867 (Tex. Crim. App. 1988). We defer to the responsibility of the fact finder to

resolve conflicts fairly in testimony, weigh the evidence, and draw reasonable

inferences from the facts. Williams, 235 S.W.3d at 750. That said, our duty requires

us to “ensure that the evidence presented actually supports a conclusion that the

defendant committed” the criminal offense of which he is accused. Id.

In reviewing the sufficiency of the evidence, a court must consider both direct

and circumstantial evidence and any reasonable inferences that may be drawn from

the evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007);

see also Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012)

(evidence-sufficiency standard of review same for both direct and circumstantial

evidence). “[A]n inference is a conclusion reached by considering other facts and

deducing a logical consequence from them,” in contrast to speculation, which “is

mere theorizing or guessing about the possible meaning of facts and evidence

presented.” Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007). A jury may

draw multiple reasonable inferences from facts as long as each is supported by the

evidence presented at trial. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013).

45 Circumstantial evidence is just as probative as direct evidence in establishing

the guilt of an actor and circumstantial evidence alone can be sufficient to establish

guilt. See Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13. “In circumstantial

evidence cases, it is not necessary that every fact and circumstance point directly

and independently to the defendant’s guilt; it is enough if the conclusion is warranted

by the combined and cumulative force of all the incriminating circumstances.”

Temple, 390 S.W.3d at 359 (internal quotations omitted).

For evidence to be sufficient, the State does not need to disprove every

reasonable alternative hypothesis that is inconsistent with a defendant’s guilt. See

Wise, 364 S.W.3d at 903; Cantu v. State, 395 S.W.3d 202, 207–08 (Tex. App.—

Houston [1st Dist.] 2012, pet. ref’d). Rather, a court considers only whether the

inferences necessary to establish guilt are reasonable based on the cumulative force

of all the evidence when considered in the light most favorable to the jury’s verdict.

See Wise, 364 S.W.3d at 903; Hooper, 214 S.W.3d at 13; see also Murray v. State,

457 S.W.3d 446, 448–49 (Tex. Crim. App. 2015) (“When the record supports

conflicting inferences, we presume that the factfinder resolved the conflicts in favor

of the verdict, and we defer to that determination.”). The jury, as the judge of the

facts and credibility of the witnesses, could choose to believe or not to believe the

witnesses, or any portion of their testimony. Sharp v. State, 707 S.W.2d 611, 614

46 (Tex. Crim. App. 1986); Jenkins v. State, 870 S.W.2d 626, 628 (Tex. App.—

Houston [1st Dist.] 1994, pet. ref’d).

A person commits the offense of intoxication manslaughter if the person:

(1) operates a motor vehicle in a public place; (2) is intoxicated; and (3) by reason

of that intoxication causes the death of another by accident or mistake. See TEX.

PENAL CODE ANN. § 49.08(a). To be “[i]ntoxicated” means: (1) “not having the

normal use of mental or physical faculties by reason of the introduction of alcohol,

a controlled substance, a drug, a dangerous drug, a combination of two or more of

those substances, or any other substance into the body” or (2) “having an alcohol

concentration of 0.08 or more.” Id. § 49.01(1), (2) (internal quotations omitted).

The statutory definition of intoxication as not having the normal use of mental or

physical faculties by reason of the introduction of alcohol, among other things, into

the body, is the “impairment theory,” while the statutory definition of having an

alcohol concentration of 0.08 or more, is the “per se theory.” Kinnett v. State, 623

S.W.3d 876, 899 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d). These theories

are not mutually exclusive. Id. at 899–900; see also Kirsch v. State, 306 S.W.3d

738, 745 (Tex. Crim. App. 2010) (BAC test results, “even absent expert retrograde

extrapolation testimony, are often highly probative to prove both per se and

impairment intoxication”).

47 As to whether a person’s intoxication caused another’s death, the Texas Penal

Code defines causation, in pertinent part, as follows: “A person is criminally

responsible if the result would not have occurred but for his conduct, operating either

alone or concurrently with another cause, unless the concurrent cause was clearly

sufficient to produce the result and the conduct of the actor clearly insufficient.”

TEX. PENAL CODE ANN. § 6.04(a).

Appellant, in his briefing, concedes that the evidence presented at trial

permitted the jury to find that: (1) he was intoxicated at the time of the car

crash; (2) immediately before the car crash, his Audi car was accelerating and

continued to accelerate until the moment of impact; (3) his Audi car had no historical

problem with its mechanics or electronics; and (4) his Audi car hit complainant 1’s

Toyota Camry car. But, according to appellant, the evidence was insufficient to

support a finding that his intoxication was a “but for” cause of the complainants’

deaths. Specifically, appellant asserts that there was no evidence showing why his

Audi car continued to accelerate as it approached complainant 1’s Toyota Camry

car, why he did not swerve or use the brake, or whether the collision occurred by

“accident and mistake.”

In asserting that the evidence is insufficient to support causation, appellant

relies on the Texas Court of Criminal Appeals’s passing observation in Hanna v.

State that “proof of the defendant’s intoxication is not equivalent to proof of

48 causation.” 426 S.W.3d 87, 98 n.57 (Tex. Crim. App. 2014). The evidence in this

case, though, proves more than the fact appellant was intoxicated when the car crash

occurred. Notably, Texas appellate courts, including this Court, have concluded that

evidence that a defendant was intoxicated and driving above the speed limit when a

fatal car collision occurs is sufficient to support a conviction for the offense of

intoxication manslaughter. See Hale v. State, 194 S.W.3d 39, 40 (Tex. App.—

Texarkana 2006, no pet.) (driving at high rate of speed while intoxicated cannot be

characterized as insufficient conduct to cause accident); Martinez v. State, 66

S.W.3d 467, 470 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (evidence

sufficient to support conviction for offense of intoxication manslaughter where

witness testified he saw eighteen-wheeler truck “moving too fast” before collision

and another witness stated defendant was driving over speed limit and appeared as

if he had been drinking when he exited eighteen-wheeler truck); Glauser v. State, 66

S.W.3d 307, 313 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (evidence

sufficient to support conviction for intoxication-manslaughter offense where

defendant was driving 100 miles an hour at night in sixty-five-miles-per-hour zone,

defendant admitted he had been drinking, defendant’s BAC was 0.21, and in well-lit

area with no visible obstructions, defendant, without ever applying his brakes, hit

complainant and back of disabled car, which had its headlights and at least one

taillight on).

49 Here, the evidence presented at trial showed that shortly before the car crash,

appellant was stopped by a law enforcement officer for speeding. Deputy Clayton

estimated that when he initiated the traffic stop, appellant had been driving close to

ninety miles per hour. Clayton handcuffed appellant and found marijuana in

appellant’s Audi car, and appellant admitted that he had smoked marijuana. Clayton

confiscated the marijuana found in appellant’s Audi car, but he did not take appellant

into custody, and appellant drove away.

A total of about nine minutes passed between the time appellant drove away

from Deputy Clayton’s traffic stop and the time he crashed into complainant 1’s

Toyota Camry car at a rate of over 100 miles per hour. Evidence showed that the

distance between where appellant was stopped by Clayton and where he crashed into

complainant 1’s Toyota Camry car was 8.7 miles, which would typically take about

fifteen to eighteen minutes to traverse.

During that nine-minute interval and just a few minutes after appellant drove

away from Deputy Clayton’s traffic stop, Runnels, who was driving westbound on

FM 2920, saw a set of headlights “coming up behind” her truck “very quickly to the

point where [she] thought that” the car was “going to hit [her].” The car “eventually

backed . . . off,” but Runnels continued to glance in her “rearview mirror . . . just to

make sure that” the car “wasn’t . . . going to get close again.” As she approached

the intersection at FM 2920 and Gosling Road, Runnels checked her mirrors and

50 moved “into the right-hand lane” so that she could make the right turn onto Gosling

Road. She then saw the car fly past her. Runnels “grabbed [her] boyfriend’s arm”

and said, “They’re going to hit someone.” (Internal quotations omitted.) The next

thing she saw was “a big ball of fire.”

Blood drawn from appellant at the hospital following the car crash showed

that appellant had a BAC of 0.15 grams of ethanol per 100 milliliters of blood, which

was over the legal limit of 0.08 grams of ethanol per 100 milliliters of blood. See

TEX. PENAL CODE ANN. § 49.01(1), (2). Testing of appellant’s blood also showed

that alprazolam and THC were present in appellant’s bloodstream.

Dr. Kelly testified that as a person’s blood alcohol level rises, “more complex

[physiological] functions” become “compromised,” so a person who has consumed

alcohol experiences “things like increased reaction time, slowed information

processing,” and “increased risk-taking.” A person “under the influence of ethanol,”

will “take longer to respond to situations” when driving. For instance, the person

may have trouble “maintaining their position within the lane of travel,” “seeing

something and hitting the brakes if [he] need[s] to,” or perceiving the distance

between cars. Dr. Kelly also explained that THC could impair a driver’s “cognition

and perception” and cause issues with “increased reaction times, as well as . . . the

ability to stay within” a traffic lane while driving. Further, THC could impair a

driver’s ability to “track[], . . . mean[ing]” that when the driver was following a car

51 that “change[d] [its] speed,” the driver’s “perception of that speed changing [would]

also impaired under the influence of THC.”

Dr. Kelly also explained that alprazolam, like ethanol, was “classified as a

central nervous system depressant so [a person] would expect th[e] same kinds of

issues with impairment while driving as [he] would with ethanol.” She noted that

some common side effects that people experience when talking alprazolam

“included drowsiness, confusion, [and] sedation.” And if a person took “a

combination” of ethanol, tetrahydrocannabinol, and alprazolam, the person would

“have more impairment” than with “just one” of those substances.

In drawing inferences from the evidence, jurors “may use common sense,

common knowledge, personal experience, and observations from life.” Edwards v.

State, 666 S.W.3d 571, 574 (Tex. Crim. App. 2023); see also Acosta v. State, 429

S.W.3d 621, 625 (Tex. Crim. App. 2014). Given that appellant was speeding before

Deputy Clayton’s traffic stop and continued to speed after the stop, even in a

suburban area, there was no need for independent evidence showing why appellant’s

Audi car continued to accelerate before hitting complainant 1’s Toyota Camry car.

The jurors could apply their “common sense, common knowledge, personal

experience, and observations from life” to draw reasonable inferences from the

evidence presented at trial about why appellant’s Audi car continued to accelerate

as it approached complainant 1’s Toyota Camry car, why appellant did not swerve

52 or use the brake, or whether the collision occurred by “accident and mistake.” See

Edwards, 666 S.W.3d at 574.

Viewing all the evidence in the light most favorable to the jury’s verdict, we

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

appellant operated a motor vehicle in a public place, while intoxicated, and by reason

of that intoxication, caused the deaths of the complainants by accident or mistake.

See TEX. PENAL CODE ANN. § 49.08(a). Accordingly, we hold that the evidence is

sufficient to support appellant’s four convictions for the offense of intoxication

manslaughter.

We overrule appellant’s first and second issues.

Motion for Mistrial

In his third issue, appellant argues that the trial court erred in refusing to grant

his motion for a mistrial because there was “an extraordinary outburst in the

courtroom[] . . . in front of the jury,” “after the trial court [had] issued an order for

spectators to be silent.”

We review the denial of a motion for mistrial for an abuse of discretion.

Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). In applying an

abuse-of-discretion standard of review, we uphold the trial court’s decision to deny

a mistrial “if it was within the zone of reasonable disagreement.” Id.; see also Griffin

v. State, 571 S.W.3d 404, 416 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d). In

53 determining whether a trial court abused its discretion by denying a mistrial, we

balance three factors: (1) the severity of the misconduct (including its prejudicial

effect); (2) the effectiveness of the curative measures taken; and (3) the certainty of

the conviction or punishment assessed absent the misconduct. Hawkins v. State, 135

S.W.3d 72, 77 (Tex. Crim. App. 2004); Verdine v. State, No. 01-18-00884-CR, 2020

WL 1584468, at *9 (Tex. App.—Houston [1st Dist.] Apr. 2, 2020, pet. ref’d) (mem.

op., not designated for publication).

“Mistrial is an appropriate remedy in extreme circumstances for a narrow

class of highly prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880,

884 (Tex. Crim. App. 2009) (internal quotations omitted); see also Archie v. State,

340 S.W.3d 734, 739 (Tex. Crim. App. 2011) (granting motion for mistrial is

appropriate when “the objectionable events are so emotionally inflammatory that

curative instructions are not likely to prevent the jury from being unfairly prejudiced

against the defendant” (internal quotations omitted)); Hawkins, 135 S.W.3d at 77

(mistrial is trial court’s remedy “for improper conduct that is so prejudicial that

expenditure of further time and expense would be wasteful and futile” (internal

quotations omitted)); Williams, 417 S.W.3d at 175 (“A mistrial is an extreme remedy

and should be exceedingly uncommon.”). Otherwise, when the prejudice is curable,

an instruction by the trial court to disregard eliminates the need for a mistrial. Young

v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004).

54 The Texas Court of Criminal Appeals has “held that an outburst from a

bystander or witness which interferes with the normal proceedings of a trial will not

result in reversible error unless the defendant shows that a reasonable probability

exists that the conduct interfered with the jury’s verdict.” Coble v. State, 330 S.W.3d

253, 292–93 (Tex. Crim. App. 2010) (internal quotations and alterations omitted).

The court observed that a trial court’s instruction to the jury to disregard the outburst

is “generally considered sufficient to cure the impropriety because it is presumed

that the jury will follow th[at] instruction[].” Id.; see Guerrero v. State, 528 S.W.3d

796, 801 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d).

In his briefing, appellant characterizes the evidence presented at trial to be

“heavily disputed” as to whether his intoxication was the “but for” cause of the car

crash or whether it was an “accident as opposed to a deliberate act.” Appellant

argues that because these types of “technical disputes are readily overcome by

emotional pleas,” and “the outburst from the family or supporters of the State is

exactly the type of conduct that should result in a mistrial,” the trial court erred in

denying his motion for mistrial.

Appellant does not quarrel with the trial court’s description of the events that

precipitated his motion for mistrial. The trial court explained that it “sense[d] that”

it “was a good time to take a break” because the testimony from Chapin, the Forensic

Death Investigator at HCIFS, was likely to be “emotional testimony for someone

55 who knew the complainants.” The Court released the jury “in an effort to give those

family members a breather,” but before all twelve jurors had left the courtroom, a

woman in the courtroom “began audibly sobbing.” The trial court “asked everyone

to leave” the courtroom, and the State escorted the family members of the

complainants out of the courtroom. The record shows that another woman also

screamed or wailed loudly after being escorted out of the courtroom but still within

earshot of the jury.

The trial court noted that there were “audible displays of emotion,” but no

actual words were spoken by the two women. The women were not witnesses, and

they did not return to the courtroom after the break.

To minimize the effect of the outburst and cure any potential harm, the trial

court instructed the jury as follows:

. . . [Y]ou are instructed to disregard the emotional outburst that occurred just before you left the courtroom and you are instructed that you may not consider it as any evidence or for any purpose whatsoever. You may also not mention it nor discuss it in any of your deliberations.

The trial court also polled the jurors individually, and they all affirmed that they

would “not consider the emotional outburst for any reason and [would] base [their]

verdict solely on the facts and evidence presented in this case.”

We reject appellant’s request for a bright-line rule that would require a trial

court to grant a mistrial whenever an emotional outburst occurs during trial because

such a rule would be contrary to precedent. See Archie, 340 S.W.3d at 739 (mistrial 56 warranted when “the objectionable events are so emotionally inflammatory that

curative instructions are not likely to prevent the jury from being unfairly prejudiced

against the defendant” (internal quotations omitted)). The situation here does not

fall within the “narrow class of highly prejudicial and incurable errors” that would

require the trial court to grant a motion for mistrial. See Ocon, 284 S.W.3d at 884.

Further, appellant does not explain how, in his view, the measures taken by

the trial court in sending the jury out of the courtroom as soon as it noticed that some

observers were becoming emotional, instructing the jury to disregard the emotional

outburst, and polling the jurors to ensure that the emotional outburst would not affect

their deliberations in the case, were insufficient to cure any potential for unfair

prejudice. We presume that the jury followed the trial court’s instruction. Coble,

330 S.W.3d at 292–93.

Finally, according to appellant, the trial court erred in relying on Robinson v.

State, No. AP-76,535, 2013 WL 2424133 (Tex. Crim. App. June 5, 2013) (not

designated for publication), in deciding to deny his motion for mistrial, “because it

was an unpublished-death-penalty case.” The Texas Rules of Appellate Procedure

state that “[u]npublished opinions have no precedential value and must not be cited

as authority by counsel or by a court.” TEX. R. APP. P. 77.3; see also Skinner v.

State, 293 S.W.3d 196, 202 (Tex. Crim. App. 2009). But appellant concedes that

Robinson based its analysis on other, published cases that applied the correct

57 analysis to determine whether a trial court acted within its discretion in ruling on a

motion for mistrial. In short, appellant does not assert that the trial court’s reliance

on the Texas Court of Criminal Appeals’s unpublished decision in Robinson affected

his substantial rights and thus, he has not demonstrated reversible error. See TEX.

R. APP. P. 44.2(b).

Based on the foregoing, we hold that the trial court did not err in denying

appellant’s motion for mistrial.

We overrule appellant’s third issue.

Modification of Judgments

Here, the trial court’s written judgments in trial court cause numbers

179583413 and 179583714 do not accurately comport with the record in those cases

in that the judgments state that appellant “pleaded true” in regard to appellant’s pleas

to the “1st [e]nhancement [p]aragraph[s].” The records, however, show that

appellant pleaded “[n]ot true” to the “1st [e]nhancement [p]aragraph” alleged in each

case.

“[A]ppellate court[s] ha[ve] the power to correct and reform a trial court

judgment ‘to make the record speak the truth when [they] ha[ve] the necessary data

and information to do so[] or make any appropriate order as the law and nature of

13 Appellate cause number 01-22-00957-CR. 14 Appellate cause number 01-22-00959-CR.

58 the case may require.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston

[1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex.

App.—Dallas 1991, pet ref’d)). This is true no matter who, or if anyone, has called

the matter to the attention of the appellate court. See French v. State, 830 S.W.2d

607, 609 (Tex. Crim. App. 1992); see also Asberry, 813 S.W.2d at 529–30 (“The

authority of an appellate court to reform incorrect judgments is not dependent upon

the request of any party, nor does it turn on the question of whether a party has or

has not objected in the trial court.”).

Accordingly, we modify the trial court’s judgment in trial court cause number

1795834 to state “Not True” in regard to appellant’s plea to the “1st [e]nhancement

[p]aragraph.” We further modify the trial court’s judgment in trial court cause

number 1795837 to state “Not True” in regard to appellant’s plea to the “1st

[e]nhancement [p]aragraph.” See TEX. R. APP. P. 43.2; Bigley v. State, 865 S.W.2d

26, 27–28 (Tex. Crim. App. 1993).

59 Conclusion

We affirm the judgments of the trial court in trial court cause numbers

1795835 and 1795836. We affirm the judgments of the trial court as modified in

trial court cause numbers 1795834 and 1795837.

Julie Countiss Justice

Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.

Do not publish. TEX. R. APP. P. 47.2(b).