Opinion
No. 06-20-00065-CR
03-04-2021
BRIAN KEITH WOODS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 71st District Court Harrison County, Texas
Trial Court No. 18-0272X Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
While in an intoxicated state, Brian Keith Woods drove his pickup in excess of sixty-five miles per hour into the rear of a parked Jeep Grand Cherokee. The crash resulted in the death of one person and the serious bodily injury of two people, all of whom had stopped to render aid at the scene of another vehicle accident. As a result, a Harrison County jury convicted Woods of one count of intoxication manslaughter and two counts of intoxication assault and assessed him punishment of twenty years' imprisonment for intoxication manslaughter, ten years' imprisonment for the first count of intoxication assault, and five years' imprisonment for the second count of intoxication assault. On appeal, Woods contends that (1) the evidence was legally insufficient to support his convictions and (2) the trial court erred when it failed to include the definition of causation contained in Section 6.04(a) of the Texas Penal Code in the application paragraphs on each of the charged counts. Because we find that sufficient evidence supported Woods's convictions and he was not egregiously harmed by any jury charge error, we affirm the trial court's judgment.
On the State's motion, the trial court ordered the sentences to run consecutively.
I. Sufficient Evidence Supported Woods's Convictions
A. Standard of Review
In his first two issues, Woods challenges the legal sufficiency of the evidence supporting his convictions for intoxication manslaughter and intoxication assault. "In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt." Williamson v. State, 589 S.W.3d 292, 297 (Tex. App.—Texarkana 2019, pet. ref'd) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd)). "Our rigorous legal sufficiency review focuses on the quality of the evidence presented." Id. (citing Brooks, 323 S.W.3d at 917-18 (Cochran, J., concurring)). "We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury 'to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts."' Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). The jury, as "the sole judge of the credibility of the witnesses and the weight to be given their testimony[, could] 'believe all of [the] witnesses' testimony, portions of it, or none of it.'" Id. (second alteration in original) (quoting Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014)). "We give 'almost complete deference to a jury's decision when that decision is based upon an evaluation of credibility.'" Id. (quoting Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008)).
"In our review, we consider 'events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.'" Id. (quoting Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985))). "It is not required that each fact 'point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.'" Id. (quoting Hooper, 214 S.W.3d at 13). "Circumstantial evidence and direct evidence are equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone." Id. (citing Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13 (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004))). "Further, 'we must consider all of the evidence admitted at trial, even if that evidence was improperly admitted.'" Id. (quoting Fowler v. State, 517 S.W.3d 167, 176 (Tex. App.—Texarkana 2017), rev'd in part by 544 S.W.3d 844 (Tex. Crim. App. 2018) (citing Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004))).
"Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge." Id. (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "The 'hypothetically correct' jury charge is 'one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.'" Id. (quoting Malik, 953 S.W.2d at 240).
Under the statute and the indictment, to convict Woods of intoxication manslaughter, the State was required to show beyond a reasonable doubt that on or about May 19, 2018, Woods (1) operated a motor vehicle in a public place (2) while intoxicated by alcohol and methamphetamine and, (3) by reason of such intoxication, (4) caused the death of Sylvia Marie Keiter (5) by accident or mistake. See TEX. PENAL CODE ANN. § 49.08(a). Also, to convict Woods of two counts of intoxication assault, the State was required to show beyond a reasonable doubt that on or about May 19, 2018, Woods (1) operated a motor vehicle in a public place (2) while intoxicated by alcohol and methamphetamine and, (3) by reason of such intoxication, (4) caused serious bodily injury to Sherri Beeson and Justin Woods (Justin) (5) by accident or mistake. See TEX. PENAL CODE ANN. § 49.07(a)(1).
Woods concedes that the evidence is sufficient to establish that he operated a motor vehicle in a public place while he was intoxicated, and he does not challenge the sufficiency of the evidence that the accident resulted in Keiter's death and serious bodily injuries to Beeson and Justin. He only challenges the sufficiency of the evidence showing that by reason of his intoxication he caused the death of Keiter and caused serious bodily injury to Beeson and Justin. Woods contends that the State failed to establish that his intoxication was the "but for" cause of the accident that resulted in Keiter's death and the serious bodily injuries to Beeson and Justin. We disagree.
Although not challenged, we have independently reviewed all of evidence and have determined that it was legally sufficient to establish these elements beyond a reasonable doubt.
The jury charge in this case contained the following instruction in the abstract portion of the charge on intoxication manslaughter:
A person who is intoxicated causes the death of another by reason of that intoxication if the intoxication causes the person to engage in particular conduct, and the death of the other would not have occurred but for the person's intoxication-influenced conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the intoxication-influenced conduct of the person was clearly insufficient.A similar instruction was contained in the abstract portion of the charge on intoxication assault. Both of these instructions are substantially similar to the definition of causation contained in Section 6.04(a) of the Texas Penal Code.
The trial court's instructions regarding causation tracked the language of the relevant Texas Criminal Pattern Jury Charges. See Comm. on Pattern Jury Charges—Criminal, State Bar of Tex., Texas Criminal Pattern Jury Charges: Intoxication, Controlled Substances, & Public Order Offense CPJC 40.19, 40.20 (2019).
See Section 6.04(a) of the Texas Penal Code, which provides:
(a) 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).
However, the abstract portions of the charges did not apply the theory of concurrent causation to the facts of the case, nor did the application portions of the charges incorporate the concept of concurrent causation. Consequently, the jury charge did not authorize a conviction on the theory of concurrent causation. Hughes v. State, 897 S.W.2d 285, 297 (Tex. Crim. App. 1994); Mallard v. State, 162 S.W.3d 325, 334 (Tex. App.—Fort Worth 2005, pet. ref'd). This means that the jury was only authorized to convict Woods if the death and serious bodily injuries would not have occurred but for his intoxication-influenced conduct alone. Therefore, we review the relevant evidence to determine whether the State established that Keiter's death and the serious bodily injuries of Beeson and Justin would not have occurred but for Woods's intoxication-influenced conduct.
"'Concurrent causation' means that more than appellant's conduct, that is '"another cause" in addition to [appellant's] conduct[,'] was in issue." Hughes v. State, 897 S.W.2d 285, 297 (Tex. Crim. App. 1994) (quoting Robbins v. State, 717 S.W.2d 348, 351 n.2 (Tex. Crim. App. 1986)).
In his brief, Woods contends that the Court of Criminal Appeals changed the State's burden in intoxication manslaughter and intoxication assault cases in Hanna v. State, 426 S.W.3d 87 (Tex. Crim. App. 2014). We disagree. In Hanna, the defendant was involved in a single-car accident and pled guilty to driving while intoxicated. Id. at 89. At a restitution hearing that sought restitution for damage done to a utility pole the defendant had struck, the only evidence of what caused the damage was the testimony of the investigating officer, who testified that the defendant told him that he had hit a water puddle, lost control, and crashed into the pole. Id. at 90. The Court of Criminal Appeals held that the restitution award was improper because "there was no other affirmative evidence that would support a finding that appellant's intoxicated driving caused the accident." Id. at 97. The Court noted in a footnote that
proof of the defendant's intoxication is not equivalent to proof of causation. For example, other intoxication offenses such as intoxication assault and intoxication manslaughter require proof that it was the intoxicated driving that caused the victim's injuries, not merely that the defendant was driving (while intoxicated) and that a person had been injured by the defendant's driving.
B. The Evidence at Trial
Testimony at trial established that on the night of May 19, 2018, a white truck driven by Rex Jenkins hit the inside guardrail on an overpass on Interstate 20, spun around, slid to the right side of the westbound lane, and came to a stop partially on the shoulder and partially in the outside lane. Keiter and her passenger, Justin, were behind Jenkins's truck and pulled behind Jenkins to help him and get his truck out of the traffic lane. According to Justin, Keiter pulled her Jeep Grand Cherokee (the Jeep) over to let him out, then pulled over as close as she could to the outside guardrail. Shortly thereafter, Beeson and her husband, Jerry, went around Jenkins's truck and parked off the road at the end of the overpass and in front of Jenkins's truck. It is uncontested that the Jeep had its emergency lights engaged.
Jerry Beeson and Moises Bazan testified that the Jeep was parked on the shoulder of the road. Although Justin testified that the Jeep was parked so close to the guardrail that he could not get the passenger door open, he also testified that it might have been slightly in the outside lane. Keiter testified both that the Jeep was on the shoulder and in the outside lane and finally testified that she did not know if it was on the shoulder or in the outside lane.
While Beeson helped Jenkins out of his truck, Jerry, Keiter, Justin, and Bazan, who had also stopped, set out orange traffic cones near the off ramp at the east end of the overpass. They staggered the cones to lead traffic out of the outside lane and into the inside lane. Jerry stayed by the traffic cones with a flashlight to direct traffic to the inside lane. Bazan also placed LED hazard flashers with the traffic cones. Bazan and Justin then pulled Jenkins's truck out of the outside lane and onto the shoulder.
The roadway had recently been repaved, and video from one of the officer's dash cameras shows the tall orange cones commonly seen in areas of road construction along the outside shoulder and in the outside lane on the east side of the overpass.
After they had set the traffic cones out fifteen to twenty vehicles, including semi-trucks, slowed down, moved to the inside lane, and passed through the area without incident. Then Jerry saw a vehicle traveling in the outside lane that did not move over. He turned and hollered at the others to get out of the roadway and then ducked out of the way. Woods came by him, and he heard a crash then ran to check on the others.
Beeson testified that, immediately before the crash, she was on the shoulder between Jenkins's truck and the Jeep. She turned to look at her husband, who had a terrified look, then she heard screeching and roaring sounds and was hit. Justin testified that he and Keiter were in front of the Jeep getting ready to leave, and the next thing he remembered was waking up in the hospital. Beeson suffered broken ribs, a broken pelvis, and devastating injuries to her right leg that required twenty-one surgeries to try to save it. Although her right leg has a rod from her hip to her ankle and pins for stability, she cannot bend it, and it will eventually be amputated. Justin suffered two breaks in his leg that required a two-foot titanium rod so he could walk, a ruptured spleen, four broken teeth, and a hole in his forehead.
Bazan testified that, after the accident, he got his medical bag and went to help the victims. He found that Keiter had no vital signs, so he went to attend to Justin and Beeson. While he was attending Beeson, he saw Woods climb out of the passenger window of his truck and jump over Keiter. He testified that Woods cussed them and said how stupid they were. He also testified that Woods was very belligerent, his motor functions were slow, his speech was slurred, and he was not stable enough to walk upright.
Jim Hargett, a trooper for the Texas Department of Public Safety (DPS), had responded to a 9-1-1 call regarding the accident involving Jenkins's truck. He testified that while he was on his way to the accident scene, he received a call regarding the second accident. He testified that the right front of Woods's pickup truck had hit the left rear of the Jeep, which was parked on the shoulder with its emergency flashers on; that the Jeep had spun completely around after the crash; and that the two vehicles were mashed together. He also located Keiter's lifeless body partially under Woods's truck. When Hargett asked Woods what had happened, he initially said that he did not know and later said that he did not remember. Hargett testified that DPS's investigation concluded that the factor contributing to the crash was Woods's intoxication by alcohol and drugs.
Photographs of Woods's truck show that it sustained massive front-end damage.
In a video from the body camera of Jake Henderson, another DPS trooper, Woods said that he did not know what happened and that something suddenly took his tire. Later, Woods said that he thought he hit Jenkins's truck. Still later, after it was explained to him that he had hit the Jeep, Woods still insisted that he hit Jenkins's truck.
Barry Evans, a DPS trooper, certified black box technician, and analyst, testified that an analysis of the data from the black box taken out of Woods's truck showed that five seconds before the impact, Woods was going seventy-three miles per hour; at four seconds before the impact he was going seventy-one miles per hour; at three seconds before the impact he was going seventy miles per hour; at two seconds before the impact he was going sixty-nine miles per hour; and at one second before the impact he was going sixty-seven miles per hour. In addition, the data showed that from eight seconds to three seconds before the impact, Woods had not applied his brakes, and at two seconds and one second before the impact, Woods's foot would have been on the brake pedal so the brake lights may have come on, but the brakes had not been activated, so there was no braking action that would have slowed the vehicle. Evans explained this like when you see something ahead and are wondering whether you need to react: you put your foot on the brake enough to activate it, but the brakes are not actually doing anything to slow the vehicle. He opined that if a person had the normal use of his mental and physical faculties, the brakes would have been applied and there would have been a much more drastic change in speed in the last two seconds.
Trooper Henderson testified that after he began a crash investigation on the scene that night, his attention was drawn to Woods because Woods was picking up debris around his truck even though there were people with significant injuries and a deceased person under his truck. When he determined that Woods was the driver of the truck that had run into the Jeep, he began gathering information from him and observed the following signs of intoxication: a strong odor of an alcoholic beverage, slurred speech, and glassy and droopy eyes. Further, Henderson testified that Woods's explanation of the crash was very vague and unclear and that during his explanation, Woods would stop, start, and stutter. Henderson performed field sobriety tests.
Henderson explained the six clues of the horizontal gaze nystagmus test (HGN) and testified that Woods had all six clues. Woods also exhibited four out of eight clues when he performed the walk-and-turn test; he fell out of balance while listening to the instructions, stopped while walking, used his arms to balance, and made an improper turn. When Woods said he would not be able to physically perform the one-leg test, Henderson gave him the Romberg test in which he stood with his feet together, head tilted, and eyes closed and estimated the passage of thirty seconds in his head. Henderson explained that if a person is intoxicated with alcohol, he usually says that thirty seconds have passed at the fifty to sixty second mark, and if he is intoxicated with a stimulant, his estimate is way under. Woods had to perform the test twice because he did not follow instructions and estimated that thirty seconds had passed at the twelve second mark in the second test. Henderson explained that a person can be intoxicated with both alcohol and drugs and that he suspected that Woods was intoxicated with both.
The jury also observed Henderson's interaction with Woods, including the administration of the field sobriety tests, on a recording captured by Henderson's body camera.
After Woods gave consent for a blood specimen draw, he was transported to a hospital where two specimens were drawn. The two specimens were sent to the DPS Crime Laboratory to test for the presence of alcohol and drugs. After explaining the process of accident reconstruction and taking into account the skid marks and gouge marks on the pavement, and anything else that could be evidence, Henderson testified that the evidence showed that the Jeep was parked on the shoulder of the road and that the area of impact was on the shoulder. He also testified that the investigation determined that Woods was at fault in the accident and that intoxication caused the wreck. Woods was initially arrested for driving while intoxicated, which was later upgraded to intoxication manslaughter and intoxication assault.
Megan Holladay previously worked for the DPS Crime Laboratory in Tyler as a blood alcohol analyst and testified that Woods's blood alcohol concentration (BAC) was 0.08 grams per 100 milliliters of blood. She explained that alcohol will delay reaction time beginning at 0.04 to 0.05 BAC. She also testified that driving is a divided attention task that requires the driver to maintain proper speed, stay in his lane, be aware of what is around him, and maintain a distance from the car in front of him. Holladay opined that when the brain is impaired by alcohol, those tasks become more difficult, judgment becomes impaired, reaction time increases, and there may be visual impairment.
Sarah Martin Garza, a forensic scientist at the DPS Crime Laboratory in Austin, testified that an analysis of Woods's blood specimen showed that he had a Delta-9-THC concentration of less than two nanograms per milliliter of blood, an amphetamine concentration of less than 0.05 milligrams per liter of blood, and a methamphetamine concentration of 0.50 milligrams per liter of blood. Shery Peyton, another forensic scientist at the DPS Crime Laboratory in Austin, testified that the level of methamphetamine in Woods's blood was high and that a concentration of 0.20 is considered a sign of abuse. She also testified that a high level of methamphetamine has a negative effect on driving because it causes (1) behavioral changes that produce confusion, irritability, anxiety, and uncertainty; (2) risk-taking; (3) the actual physical act of speeding; (4) an increase in reaction time; and (5) then drifting off the side of the road and weaving in and out of traffic. She explained that at some point the person begins to withdraw from the methamphetamine, which leads to extreme fatigue so that he would have an inability to maintain a steady lane of traffic and an inability to focus. Peyton also testified that it is well documented that the combination of alcohol, methamphetamine, amphetamine, and THC leads to a much more extreme impairment. She opined that the combination of those drugs could impair a person's ability to judge distance and reaction time and that it would take him longer to perceive and react to a hazard than a sober driver.
THC is the active drug found in marihuana.
In his cross-examination of Hargett, Woods questioned him about a tire that was lying on the shoulder of the outside lane as shown in the recording from Hargett's body camera. Hargett acknowledged that the rim of Woods's right tire hitting any metal could possibly cause sparks. He also acknowledged that if a right tire goes flat suddenly, the vehicle is pulled to the right. On cross-examination, Henderson testified that there was no evidence that there was a tire in the middle of the road and that if a tire had been struck in the middle of the road, there would have been evidence of it. Henderson also testified that if Woods had hit a tire that caused his truck to jerk to the right, his tires would have left distinctive yaw marks, and possibly gouge marks from his rim, in the pavement leading directly to the area of impact but that no such yaw marks or gouges were seen. Evans testified that if a tire had been hit, the black box would have recorded a non-deployment (of the airbag) event immediately before the crash, but in this case, there was no such record.
Woods did not testify, and no other evidence showed that his truck had struck the tire before crashing into the Jeep. --------
C. Analysis
Woods argues that the evidence in this case does not support the conclusion that Keiter's death and the serious bodily injuries of Beeson and Justin were caused because of or due to his intoxication. He contends that because there was no evidence of why his truck collided with the truck, the jury had to rely on speculation that it was Woods's intoxication that caused the accident. We disagree.
The evidence in this case showed that after Jenkins wrecked his truck, those who stopped to render aid took every precaution to warn other vehicles approaching the scene of the hazard and to direct them to the inside lane for safe passage. Keiter parked her Jeep on the shoulder behind Jenkins's truck and as close as possible to the guardrail and engaged her emergency lights. Jerry, Keiter, and Bazan set up orange traffic cones and LED hazard lights in a staggered formation from the outside shoulder to the inside lane at the beginning of the overpass, and Jerry stationed himself with a flashlight as an additional warning. Fifteen to twenty vehicles apparently saw those hazard warnings, slowed down, and moved to the inside lane without incident before Woods approached the scene.
According to Jerry, Woods remained in the outside lane, and the evidence showed that as he approached the scene of the first accident, Woods began coasting, but never fully engaged his brakes, then struck the Jeep while traveling in excess of sixty-five miles per hour. Bazan testified that immediately after the accident, Woods was belligerent, appeared to be intoxicated, and was unconcerned about the people he had injured and killed. Henderson recounted, and the jury viewed a recording that showed, the signs of intoxication he observed and the results of Woods's field sobriety tests, all of which indicated that Woods was intoxicated. The laboratory results confirmed that Woods was intoxicated by both alcohol and methamphetamine. The jury also heard testimony regarding the depressant effect of intoxication on judgment, reaction time, and the perception of hazards.
On this evidence, any rational jury could find beyond a reasonable doubt that Keiter's death and the serious bodily injuries of Beeson and Justin would not have occurred but for Woods's intoxication-influenced conduct. Consequently, we find that sufficient evidence supported Woods's convictions for intoxication manslaughter and intoxication assault. We overrule his first two issues.
II. Woods Was Not Harmed by Any Jury Charge Error
In his third, fourth, and fifth issues, Woods complains that he was egregiously harmed by the trial court's jury charge error. Woods contends that the trial court erred when it failed to include the definition of causation contained in Section 6.04(a) of the Texas Penal Code in the abstract portion of its charges on intoxication manslaughter and intoxication assault and that it should have applied that definition in the application portion of those charges.
A. Standard of Review
"We employ a two-step process in our review of alleged jury charge error." Murrieta v. State, 578 S.W.3d 552, 554 (Tex. App.—Texarkana 2019, no pet.) (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994)). "Initially, we determine whether error occurred and then evaluate whether sufficient harm resulted from the error to require reversal." Id. (quoting Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871 S.W.2d at 731-32)).
"[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby." Id. (quoting TEX. CODE CRIM. PROC. ANN. art. 36.13). "A trial court must submit a charge setting forth the 'law applicable to the case.'" Id. (quoting Lee v. State, 415 S.W.3d 915, 917 (Tex. App.—Texarkana 2013, pet. ref'd) (quoting TEX. CODE CRIM. PROC. ANN. art. 36.14). "The purpose of the jury charge . . . is to inform the jury of the applicable law and guide them in its application. It is not the function of the charge merely to avoid misleading or confusing the jury: it is the function of the charge to lead and prevent confusion." Id. (quoting Lee, 415 S.W.3d at 917; Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)).
"The level of harm necessary to require reversal due to jury charge error is dependent upon whether the appellant properly objected to the error." Id. at 555 (citing Abdnor, 871 S.W.2d at 732). Here, because the defendant did not object to the charge, we will not reverse the judgment "unless the record shows the error resulted in egregious harm, Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g), such that he did not receive a fair and impartial trial." Id. (citing Almanza, 686 S.W.2d at 171; Loun v. State, 273 S.W.3d 406, 416 (Tex. App.—Texarkana 2008, no pet.)). "Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory." Id. (quoting Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007)). "In making this determination, we review 'the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information in the record as a whole.'" Id. (quoting Villarreal v. State, 205 S.W.3d 103, 106 (Tex. App.—Texarkana 2006, pet. dism'd, untimely filed) (citing Almanza, 686 S.W.2d at 171)).
B. Analysis
As we have previously noted, the trial court included a definition of causation in the abstract portion of its charges on intoxication manslaughter and intoxication assault that was substantially similar to the definition of causation contained in Section 6.04(a) of the Texas Penal Code. Therefore, Woods's complaint that the trial court failed to include this definition is without merit. However, the charges failed to apply that definition in the application portions of the charges. Thus, we must determine whether that was egregious error. Because the definition of causation in Section 6.04(a) includes both concurrent causation and but for causation, we must examine error as it relates to both types of causation.
1. Woods Inadequately Briefed His Complaint that the Trial Court Erred by not Instructing the Jury Regarding Concurrent Causation
To the extent that Woods argues that the application paragraph should have included instructions applying the concept of concurrent causation, Woods has forfeited this issue due to inadequate briefing. "To avoid forfeiting a legal argument for inadequate briefing, an appellant's brief must contain 'a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.'" Taylor v. State, 558 S.W.3d 215, 218 (Tex. App.— Texarkana 2018, no pet.) (quoting TEX. R. APP. P. 38.1(i) (citing Lucio v. State, 351 S.W.3d 878, 896-97 (Tex. Crim. App. 2011); Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000))). "Because the Texas Court of Criminal Appeals has emphasized that an appellate court has no obligation to construct and compose issues, facts, and arguments for an appellant, encompassed within Rule 38.1 is the party's task of explaining or discussing why an argument has substance." Id. (citing Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim. App. 2017); Lucio, 351 S.W.3d at 896-97; Busby, 253 S.W.3d at 673). Thus, "a party must provide substantive analysis by applying the law to the facts." Id. (citing Linney v. State, 413 S.W.3d 766, 767 (Tex. Crim. App. 2013) (Cochran, J., concurring in refusal to grant petition for discretionary review)). "A brief that fails to apply the law to the facts does not comply with Rule 38.1 and presents nothing for review. Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003). In his brief, Woods does not argue that there was another cause of the accident, he does not cite to any evidence in the record that there was some other cause of the accident other than his conduct, and he does not provide a substantive analysis applying the law of concurrent causation to the facts. Consequently, he has forfeited any complaint that the trial court erred by failing to instruct the jury regarding concurrent causation. See Taylor, 558 S.W.3d at 218.
2. Assuming the Trial Court Erred in Failing to Instruct the Jury Regarding But For Causation, the Error, if Any, Was Not Egregious
To the extent that Woods complains that the application portion of the charges did not contain an instruction that the jury must find that Keiter's death and the serious bodily injuries of Beeson and Justin would not have occurred but for Woods's intoxication-influenced conduct, we hold that Woods was not egregiously harmed by the error, if any. The application portions of the charges authorized the jury to convict Woods of intoxication manslaughter/intoxication assault if it found that Woods, "by reason of the intoxication, caused the death of [Keiter]/caused serious bodily injury to [Beeson (and) Justin]." As previously noted, the abstract portion of the intoxication manslaughter charge defined causation as follows:
A person who is intoxicated causes the death of another by reason of that intoxication if the intoxication causes the person to engage in particular conduct, and the death of the other would not have occurred but for the person's intoxication-influenced conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the intoxication-influenced conduct of the person was clearly insufficient.A similar instruction was contained in the abstract portion of the charge on intoxication assault.
However, the abstract portion of neither charge applied the theory of concurrent causation to the facts of the case, nor did the application portions of the charges incorporate the concept of concurrent causation. While such a charge does not authorize the jury to convict on the theory of concurrent causation, Hughes, 897 S.W.2d at 297, the definition in this case also provides that a person who is intoxicated causes the death (or serious bodily injury) of a person by reason of that intoxication if the intoxication causes the person to engage in particular conduct and the death (or serious bodily injury) would not have occurred but for the person's intoxication-influenced conduct operating alone. Thus, the jury charge as a whole authorized the jury to convict Woods if it found that the death and serious bodily injuries would not have occurred but for his intoxication-influenced conduct. In this circumstance, it has been held that the defendant was not harmed by any error in the jury charge. See id.; Horn, 2013 WL 491521, at *2; Menifee v. State, No. 14-06-00443-CR, 2007 WL 1412085, at *5 (Tex. App.—Houston [14th Dist.] May 15, 2007, no pet.) (mem. op., not designated for publication); Mallard, 162 S.W.3d at 334.
In addition, as we previously discussed, the evidence in this case strongly supported the conclusion that Keiter's death and the serious bodily injuries to Beeson and Justin would not have occurred but for Woods's intoxication-influenced conduct. Although his counsel at trial cross-examined witnesses on the possibility that Woods might have run over a tire that caused him to veer sharply to the right, there was no testimony or other evidence that this actually happened. Rather, the substantial testimony at trial was that neither the black box data nor the evidence at the scene supported this theory. Also, the State in its final argument stressed that Woods's intoxication-influenced conduct alone was enough to convict him and stressed the evidence in the case that pointed to his intoxication and that supported a finding that the death of Keiter and the serious bodily injuries to Beeson and Justin would not have occurred but for Woods's intoxicated conduct. Finally, in their voir dire of the jury panel, both the State and Woods stressed that the State's burden was to show that Woods's intoxication caused the death and serious bodily injuries and that they would not have occurred but for Woods's intoxication.
Therefore, we find that the record as whole shows that Woods was not egregiously harmed by any error in the jury charge. Consequently, we overrule Woods's third, fourth, and fifth issues.
III. Disposition
For the reasons stated, we affirm the trial court's judgment.
Ralph K. Burgess
Justice Date Submitted: January 19, 2021
Date Decided: March 4, 2021 Do Not Publish
Id. at 98 n.57 (citing TEX. PENAL CODE ANN. §§ 49.07, 49.08). This is substantially the same as requiring the State to show that the victim's death or serious bodily injuries would not have occurred but for the defendant's intoxication-influenced driving. See TEX. PENAL CODE ANN. § 6.04(a).