In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-24-00453-CR
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MATTHEW JOHN FLASKRUD, Appellant V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 9th District Court Montgomery County, Texas
Trial Cause No. 22-03-02944-CR
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MEMORANDUM OPINION
Matthew John Flaskrud was charged by indictment with the offense of intoxication manslaughter. Tex. Penal Code Ann. § 49.08. The indictment also alleged two prior convictions for punishment enhancement purposes. Flaskrud pleaded not guilty. On the fourth day of trial, the court found that Flaskrud cut off his ankle monitor, failed to appear in court, and was voluntarily absent. Trial continued, and the jury found Flaskrud guilty and further found that he used a deadly
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weapon during the commission of the offense. The trial court entered pleas of “not true” to the enhancement paragraphs on Flaskrud’s behalf. After hearing additional evidence, the trial court found the enhancement allegations true and assessed Flaskrud’s punishment at sixty years in prison. Following Flaskrud’s apprehension over a year later, the trial court sentenced Flaskrud accordingly. After being warned of the risks of self-representation, Flaskrud elected to represent himself pro se on appeal.
In five issues, Flaskrud complains that the trial court violated his due process rights by excluding Flaskrud from presenting a complete defense, that he received ineffective assistance of counsel, that his sentence constitutes cruel and unusual punishment, that there was judicial bias, and that the continuation of trial in absentia violated his rights. For the reasons discussed below, we affirm the trial court’s judgment.
Background
On March 2, 2022, Officer Nathan Baker with the Conroe Police Department was dispatched to a motorcycle crash at the Backwoods Saloon at 10:18 p.m. The call notes indicated that one of the drivers was regaining consciousness and another motorcyclist was on scene. April London, an off-duty paramedic who pulled into the parking lot shortly after the crash, immediately began to perform CPR on Derrick
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Hintzman despite believing that a good outcome was unlikely given the severity of Hintzman’s condition. Hintzman passed away at the hospital hours later due to blunt force injuries he sustained in the crash.
As she worked on Hintzman, London observed the other driver regain consciousness and become agitated. The other driver picked up his bike and started walking around. Baker spoke with the other driver, whom he identified as Flaskrud. When Baker spoke with Flaskrud, he observed Flaskrud had “slurred speech and the odor of alcohol, an alcoholic beverage omitting from his breath.” He observed Flaskrud standing next to a red motorcycle while bleeding due to several cuts on his face. Flaskrud told Baker that he was going home, but he could not remember how the crash happened. Paramedic Adam Solis testified that Flaskrud could not remember the events leading up to the crash. Flaskrud admitted to Solis that he “had about a six pack[]” and Solis “could smell some alcohol coming from him.”
After being transported to the hospital, Flaskrud told Officer Jacob Dorman that his motorcycle fell out from underneath him as he left the Backwoods Saloon. Flaskrud could not remember striking or being struck by another vehicle. Flaskrud admitted to having consumed “two, maybe two and a half[]” drinks, which Dorman believed to be beer.
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Flaskrud told Detective Allan Bell, a crash reconstructionist with the Conroe Police Department, that he could not recall how the crash happened but that he thought he “hit some gravel,” that Hintzman “just laid the bike over in front of him[,]” and that he tried to avoid the crash but could not. Flaskrud told Bell that he had been at Kat Daddy’s bar before the crash and had two beers there, although his story slightly changed here and there. After speaking with Flaskrud and watching a surveillance video of the crash, Bell determined that Flaskrud’s memory issues were due to intoxication. Flaskrud consented to a blood draw, and toxicology testing revealed his blood alcohol content was 0.142 grams per milliliter with three cannabinoids present as well. Flaskrud cried when Dorman told him his friend, Hintzman, had died.
Bell determined that the front of Flaskrud’s red motorcycle impacted the middle-left side of Hintzman’s orange motorcycle. Bell admitted that his opinion of how the crash occurred changed through the course of the investigation. When he first arrived on scene, Bell was told an initial theory that the motorcycles had been side by side when Hintzman suddenly turned in front of Flaskrud. But surveillance videos of the crash and physical evidence on scene later dispelled that theory.
The surveillance videos showed Hintzman making a left turn from the roadway into the parking lot when Flaskrud came into view travelling at a faster
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speed and impacted Hintzman from the side. Bell located a single tire track that showed Flaskrud had not been driving next to Hintzman but had left the roadway and driven over ten feet out of his lane, traveling approximately 133 feet through the grass and gravel before impacting Hintzman as Hintzman lawfully turned left from the roadway. Bell also estimated Flaskrud had been speeding at approximately forty- eight miles per hour, possibly even accelerating, and did not brake or attempt to avoid the collision.
Bell learned that Flaskrud had been to the Backwoods Saloon the previous week and was therefore familiar with the driveway and should have anticipated Hintzman’s turn. Bell concluded that Flaskrud was at fault for the crash and that alcohol was a factor. Bell explained that if Flaskrud had not been intoxicated, Bell would have expected Flaskrud to lower his speed, stay on the roadway, follow at a safer distance, and take evasive action to avoid Hintzman. Bell concluded that if Flaskrud had been on the road, the crash would not have occurred. Bell found no evidence that Hintzman had done anything to cause the crash.
Analysis
Flaskrud was represented by counsel at trial but appears pro se on appeal. A pro se litigant must comply with the rules of evidence and procedure and is not to be granted any special treatment because he has asserted his pro se rights. Johnson v.
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State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988); Griffis v. State, 441 S.W.3d 599, 612 (Tex. App.—San Antonio 2014, pet. ref’d). Although we construe pro se arguments “with patience and liberality[,]” Flaskrud, as a pro se appellant, is not entitled to any special treatment and is held to the same standards as licensed attorneys. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (per curiam); Grubbs v. State, 440 S.W.3d 130, 133 n.1 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). Due Process In his first issue, Flaskrud complains that the trial court violated his Sixth and Fourteenth Amendment rights by “precluding the defense from presenting material, exculpatory, and impeachment evidence relevant to the decedent’s culpability and comparative fault.” Specifically, Flaskrud complains that the “exclusion of Derrick Hintzman’s 0.218 BAC and his prior DWI history, despite direct relevance to causation, denied Appellant his fundamental right to present a complete defense.”
The State filed a motion in limine seeking to require Flaskrud to obtain a ruling on the admissibility of Hintzman’s blood alcohol concentration before mentioning it in front of the jury. Flaskrud argued that such evidence was probative of causation because it would show “another cause that is completely responsible for this accident[.]” He explained that “the reason the alcohol is important is because
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there’s a second entrance to that bar that they always took, and [Hintzman] didn’t take it this time. That’s why he slammed on his brakes because he thought he was at the second turn. He was at the first turn. And that’s due to intoxication.” Flaskrud argued that his theory of the accident was that there was no causation as the accident was unavoidable because Hintzman slammed on his brakes and turned immediately in front of Flaskrud, who struck him. Flaskrud proffered that Hintzman’s BAC was 0.218.
The State responded that no evidence would show that Hintzman braked suddenly or “drove in any way that was influenced by intoxication” and that the crash occurred because Flaskrud was already driving off the road when Hintzman lawfully turned into the driveway. Accordingly, the State argued that the probative value of Hintzman’s intoxication would be extremely low, if not zero, and the unfair prejudicial effect would be potentially extreme. The trial court granted the State’s motion in limine but encouraged the parties to approach the bench if they believed the evidence had become relevant. The trial court stated that it would reconsider its ruling after it heard the mechanics of the accident.
Flaskrud asked the trial court to reconsider admitting Hintzman’s BAC during cross-examination of Bell, arguing that whether Bell considered Hintzman’s BAC in his analysis “goes to the quality of the investigation” and the facts Bell relied on
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to form his opinion of causation. The trial court denied Flaskrud’s request based on relevance and the Rule 403 balancing test. Flaskrud also sought to question the medical examiner about whether toxicology testing was performed on Hintzman, but the trial court sustained the State’s relevance objection.
To preserve a complaint for appellate review, a party generally must make a timely, specific objection to the alleged error and obtain a ruling. Tex. R. App. P. 33.1(a); Pena v. State, 285 S.W.3d 459, 463-64 (Tex. Crim. App. 2009). A point of error on appeal must also match the objection made. Clark v. State, 365 S.W.3d 333, 339-40 (Tex. Crim. App. 2012) (noting that the record did not show the trial court understood appellant’s evidentiary objections to be a constitutional due process complaint and due process complaint was forfeited). Consequently, “‘[a]n objection stating one legal theory [at trial] may not be used to support a different legal theory on appeal.’” Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (quoting Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990)) (other citations omitted).
At trial, Flaskrud argued that Hintzman’s BAC was relevant to the issue of causation and the quality of Bell’s investigation and opinions. The record does not show that the trial court understood Flaskrud’s objection to include a constitutional due process complaint. Because Flaskrud’s complaint on appeal varies from his trial
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objection, he has forfeited his complaint. See Tex. R. App. P. 33.1(a); Clark, 365 S.W.3d at 339-40; Broxton, 909 S.W.2d at 918. We overrule Flaskrud’s first issue. Ineffective Assistance of Counsel In his second issue, Flaskrud complains that defense counsel rendered ineffective assistance of counsel because his counsel “failed to object to a judicial conflict of interest, failed to secure admission of the prejudicial ‘we’re going to nail this guy’ video, and failed to request a mistrial after such inflammatory conduct.”
To prevail on a claim of ineffective assistance of counsel, an appellant must meet a two-pronged test:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). Strickland requires an appellant to show a reasonable probability that, but for his counsel’s errors, the outcome of his trial would have been different. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). A reasonable probability is one sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. Failure to meet either Strickland prong is fatal
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to an ineffective assistance of counsel claim. Thompson v. State, 9 S.W.3d 808, 812- 813 (Tex. Crim. App. 1999).
“Appellate review of defense counsel’s representation is highly deferential and presumes that counsel’s actions fell within the wide range of reasonable and professional assistance.” Bone, 77 S.W.3d at 833 (citation omitted). Appellant must prove there was no plausible professional reason for specific acts or omissions of his counsel. Id. at 836. “Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1992)). Because the reasonableness of counsel’s decisions and strategy often involves facts that do not appear in the appellate record, the record on direct appeal is usually insufficient to support an ineffective assistance claim. Id. at 813- 14. However, “when no reasonable trial strategy could justify the trial counsel’s conduct, counsel’s performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel’s subjective reasons for acting as [he] did.” Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005) (citing Strickland, 466 U.S. at 690).
“In the rare case in which trial counsel’s ineffectiveness is apparent from the record, an appellate court may address and dispose of the claim on direct appeal.”
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Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). When the record is silent as to the reasoning behind an alleged deficiency by trial counsel, “we will assume that counsel had a strategy if any reasonable sound strategic motivation can be imagined.” Id.; see also Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (internal citations omitted) (“[I]n the absence of evidence of counsel’s reasons for the challenged conduct, an appellate court . . . will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it.”).
Generally, unless a record is created in the trial court that allows the attorney who represented the defendant to explain the reasons a case was handled the way it was handled at trial, the record in the direct appeal will not be sufficiently developed for the appellant to meet their burden to establish their attorney provided ineffective assistance of counsel in the trial unless the challenged conduct was “so outrageous that no competent attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quotations and citations omitted).
Flaskrud did not file a Motion for New Trial alleging ineffective assistance of counsel nor was there a hearing addressing counsel’s effectiveness. Flaskrud’s trial counsel was not afforded an opportunity to explain his actions, so we will not find
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his performance deficient unless the conduct was “so outrageous that no competent attorney would have engaged in it.” Id.
Flaskrud has not demonstrated that but for counsel’s alleged errors, the outcome of his trial would have been different. See Graves v. State, 310 S.W.3d 924, 929 (Tex. App.—Beaumont 2010, pet. ref’d). The record reveals no basis for an objection to a “judicial conflict of interest[.]” Likewise, the record does not establish the existence of an unadmitted video in which officers say “we’re going to nail this guy[.]” Finally, Flaskrud fails to identify any “inflammatory conduct” that warranted a motion for mistrial.
Moreover, the record is silent as to trial counsel’s tactical and strategic decision-making. See Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010). Flaskrud cannot defeat the strong presumption that counsel’s decisions during trial fell within the wide range of reasonable professional assistance. See Thompson, 9 S.W.3d at 814. Since we lack any basis in the record before us to conclude that the alleged failures of Flaskrud’s trial counsel were “so outrageous that no competent attorney would have engaged in it[,]” we overrule Flaskrud’s second issue. Goodspeed, 187 S.W.3d at 392 (internal quotations and citation omitted).
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Disproportionate Sentencing In his third issue, Flaskrud complains that his “60-year sentence was grossly disproportionate under the Eighth Amendment” because “a 60-year sentence for a single-instance vehicular incident with shared culpability is extreme.” The State argues that Flaskrud did not object and therefore waived any claim of disproportionate sentence on appeal.
To preserve error for appellate review, the complaining party must present a timely and specific objection to the trial court and obtain a ruling. Tex. R. App. P. 33.1(a). A party’s failure to specifically object to an alleged disproportionate or cruel and unusual sentence in the trial court or in a post-trial motion waives any error for the purposes of appellate review. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Flaskrud did not raise any objections when the trial court sentenced him and he did not file any post-sentence motions complaining about the allegedly excessive sentence. We therefore find that Flaskrud has waived this issue on appeal. Judicial Bias In his fourth issue, Flaskrud complains that “structural judicial bias rendered the trial fundamentally unfair[]” because “[t]he trial judge’s personal history of a motorcycle crash resulting in paraplegia created an emotional and experiential
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conflict that violated Appellant’s right to a neutral arbiter.” Flaskrud does not direct us to any portion of the record that indicates he made a request, objection, or motion based on the trial judge’s alleged bias. See Tex. R. App. P. 33.1(a) (requiring a timely request, objection, or motion to preserve a complaint for appellate review). He did not file a motion to recuse the trial judge or seek a new trial on the basis of bias. When deciding whether we may address unassigned error, we follow the applicable test set forth in Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993). See also Tex. R. App. P. 33.1; Brumit v. State, 206 S.W.3d 639, 644 (Tex. Crim. App. 2006).
In Marin, we said that “our system may be thought to contain rules of three distinct kinds: (1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request.” Marin, 851 S.W.2d at 279. “Rule 33.1’s preservation requirements do not apply to rights falling within the first two categories.” Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014). “Barring these two narrow exceptions, all errors—even constitutional errors—may be forfeited on appeal if an appellant failed to object at trial.” Id. However, we need not decide whether an objection was necessary to preserve this error on appeal because the record here does not reflect bias of the trial court. See Brumit, 206 S.W.3d at 644-45; Graves v. State, Nos. 05-19-00786-CR, 05-19-00788-CR, 2021
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WL 1558740, at *2 (Tex. App.—Dallas Apr. 21, 2021, no pet.) (mem. op., not designated for publication).
“Due process requires a neutral and detached hearing body or officer.” Brumit, 206 S.W.3d at 645 (citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973)). “Absent a clear showing of bias, a trial court’s actions will be presumed to have been correct.” Id. (citing Thompson v. State, 641 S.W.3d 920, 921 (Tex. Crim. App. 1982)).
During a Faretta hearing regarding Flaskrud’s desire to represent himself on appeal, the trial judge responded after reading Flaskrud’s draft of his pro se brief. The trial judge stated that he was in a single-vehicle motorcycle accident when he was twenty-five, alcohol was not involved, the accident was one hundred percent his fault, and that he holds no bias against motorcycle riders: “If you love it, do it. I have not problem with that.” On the record before us, there are no indices of judicial bias that would favor the State. We therefore conclude that the trial court did not err and overrule Flaskrud’s fourth issue. Trial in Absentia In his fifth issue, Flaskrud claims that “trial in absentia violated constitutional and Texas law safeguards.” The issue contains no additional argument or citations to the record. An appellant’s brief “must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”
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Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 500 (Tex. 2015); Tex. R. App. P. 38.1(f)(i). A brief does not adequately comply with this rule “if we must speculate or guess about the appellant’s issues.” Golden v. Milstead Towing & Storage, Nos. 09-21-00044-CV, 09-21-00045-CV, 2022 WL 1412303, at *2 (Tex. App.— Beaumont May 5, 2022, no pet.) (mem. op.). Waiver may result from an appellant’s “[f]ailure to provide citations or argument and analysis as to an appellate issue[.]” Ross, 462 S.W.3d at 500 (citation omitted). Flaskrud’s fifth issue consists of one sentence without citations to authorities or the record. Additionally, we note that Flaskrud did not preserve this issue in the trial court as he failed to make an objection. See Tex. R. App. P. 33.1. Because there is nothing for us to review, we overrule Flaskrud’s fifth issue.
Conclusion
Having overruled all of Flaskrud’s issues, we affirm the trial court’s judgment.
AFFIRMED.
KENT CHAMBERS
Justice
Submitted on August 5, 2026 Opinion Delivered August 26, 2026 Do Not Publish
Before Golemon, C.J., Wright and Chambers, JJ.