## In the Court of Appeals Second Appellate District of Texas at Fort Worth

_

__________________________ No. 02

- 21

- 00135

- CR

_

_______ _

__________________

On Appeal from County Court at Law No. 1 Parker County, Texas Trial Court No. CCL1

- 19

- 0685
Before Sudderth, C.J.; Birdwell and Wallach, JJ. M emorandum Opinion by Justice Birdwell 

### K ENNETH 

### R. M C 

### I NTOSH 

### J R



### . , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION Appellant, Kenneth R. McI n tosh Jr., was charged with obstruct ion of a highway or street

. He entered a plea of n ot g uilty

. The j ury found Mc Intosh g uilty , and the t r ial cou rt imposed a fine of $1,200 and sentenced him to 120 days of imprisonment probated for 15 months. In four issues, McIntos h appeals t he t rial court ’ s judg ment.
I. Suffici e ncy of the Evidence

– Issue s 1 and 2 1
In his first is sue, McIntosh cla i ms tha t the evi dence is insufficient to support
his conviction

. In his second issu e, he argues that no rational factfinder could have found him guilty of obstruc t ion under the facts of this case. Because McIn tosh ’ s firs t

a nd sec ond issu e s challenge the sufficiency of the evide n ce, we will address them together.
A. Sta ndard of Review In our evidentiary

- sufficiency review, we view all the e vi dence i n the light most
favorable to the verdict to dete rmine whether any rational factfinder could have found
the crime’s essential eleme n ts beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. Stat e , 520 S. W.3d 616, 622 (Tex. Crim. App. 2017).

1 Becau se we s et out the facts in detail in McIntosh ’ s suffic iency issues, we do not include a separate fa ctual st ate ment
.3 B. E vidence of Obstruction A person c ommits the offens e of obstruction if, without legal pri v ilege or authority, he intentionally, knowingly, or recklessly obstructs a highway or street to which the p ublic or a substantial group of the public has access. Tex. Penal Code Ann. § 42.03 (a)(1). “Obstruct” means to “ render impassable or to render pas s age unreasonably inconvenient or hazardous. ” Id. § 42.03 (b).
Du ring trial, t he jury learned that while m aking a d el ivery to Rodney and Leah
Riedel in Parker County , McIntosh parked his 18

- w heeler in the s outhbou nd l a ne of
Z ion Hi ll R o ad despite bei ng warn ed a bout the r oad ’ s dangerous conditions

. Zion
Hill R oad is a t w o

- lane country road that runs north and south. It has narrow
shoulders that abruptl y slope into a ditch. The speed limit on the ro a d is 6 0 miles per h our. B ecause there are no lights on the road , it is very dark at night

. McInto sh park ed his 18

- w hee ler on a spot on the road situat ed in a valley between two steep hills. Leah had warn ed McIntosh that it would be unsa fe for him to park on the road. Spe c ifically, s he informed him that th e road was “ dangerous, ” and that peop le often sped down the road and “ did not pay at t ention

. ” While
McIntosh ’ s 18

- w heeler was parked on the road , Binion Lo ng crash e d his pickup truck
in to the back of it

. Both McIn tosh an d the State presented e xper t te stimony r egarding the ab ility
of othe r vehicles to safely pass McInt osh ’ s 18

- w heeler . Lee Jackson, a n accident reconstruction expert for the Sta te , testified th at Long “ had no where to go ” when he4 came upon McIntosh ’ s pa rked 1 8

- wheeler. Specifically, Jackson testified that , as it
relates to L ong ’ s crashing into Mc Intosh ’ s parked 18

- w heeler , Long “ couldn ’ t go to the rig ht, couldn ’ t go to the left in oncoming traffic [, and ] [a]n attempt to pass would have put [ Long ] dang erously close to the no passing zone. ” J a ckson con cluded t hat Long didn ’ t have “ a ny option at all ” and th at t he 18

- w heeler ’ s “ being in that location
didn ’ t leave him any options

. ” Furthe r , Jackson state d that due to the fo g gy weather
cond ition presen t at t he ti m e of the accident and the fact t hat the 18

- w heeler was parked at the bottom of a hi ll, Long had no way to know if a car was travelin g in the
northbound lane of the road , and t h at any a ttempt by Long to go around McIntosh ’ s 18

- w heeler was akin to hi s “ tak i n g [his] life into [hi s] own hand s by going into the

onco ming traffic lane and being involve d in a head

- on collision. ” In Jackson ’ s opinion, McIntosh ’ s parking of the 18

- wheeler i n the so uth bound lan e of the road
was a reck less act that created a n extreme hazard for which there wa s no justification.
McIntosh called another accident re constr uction exp ert , Dan ie l Phi llips , to

tes tify on his beh alf. On the one hand, Ph illips testified that McInto sh ’ s par ked
18

- w heeler did no t create a hazard for other drive r s , but h e also te stified that t here

was n o t enough roo m in the pass ing zone of the r oad for Long to maneuver around
it

. The j ury also heard testimony from Texas Depart ment of Public Safety Trooper Luc ious Pi tts. Pitts was disp atche d t o the sce ne o f t he w r eck. P itts testi fied
that as he approached the wreck, he observed that the road way was wet and that his5 visibility was dimi nished b y mist and fog

. Pitts stated that due to the weath er conditions, he ap pr oached the w reck caut iously.
While at the scene , P it ts decided to check Long ’ s truck ’ s speedometer

. Pitts
observed that the speedo meter wa s locked in place at “ not exactly on , ” but not over , 5 5 mile s per hou r

— meanin g Long ’ s tru ck was tra veling under 5 5 mile s per hou r when
it c ra sh ed into the back of McI n to sh ’ s 18

- w hee ler

. P itt s determined that the 18

-

w heeler had been blocking the entire southbound l ane of Zion H il l R o ad when the
wreck o ccurred.
Pitts f urther testified that it would have been hazardous for Long to have attempted to drive around McIn t osh ’ s par ked 18

- w he eler beca use the re was a steep ditch on the t ruck ’ s ri ght side and the o ncoming traffic la ne on the left sid e was on a steep hill that made it diff icult t o see oncoming traffic. The jury also h eard testi mo ny fro m volunte er fireman Jerr e d Hic ks

. Hicks w as also di spatched to th e scene of the collis ion. Hicks testified that when h e arrived , his
vi sibility w as “ poor ” due to fog and m ist

. H i cks stated that he could not see the
wreck until he w as within 150 to 200 f eet of it. In hi s opin ion, it was extreme ly unsafe
of Mc Intosh t o have p ark ed on the roadway where the collis ion occurred.
C. Analysis
McIntos h makes several arguments to support his suf ficien cy issue. First, he argues that the State “offered no evidence that th e road was rendered impass a ble [ , a nd
that the ] only fa ct of dispute was if the passageway was rendered unr easonably6 inconvenient or haz a rdous.” We di sagree. The State ’ s expert, Jackson, testified that Long “had nowhere to go” w hen he came upon McIntosh’s parked 18

- wheeler a nd

t hat McIn t o sh ’ s act of parking his 1 8

- wheeler on th e road was rec kless a n d “ extreme ly
hazar d ous . ” Pitts testified that McIn tosh ’ s t ruck blocked the entire southbound la ne of the r oa d and that an attempt by Long to drive around the tr uck woul d have been

“ h azard ou s. ” Hicks t estified that McIntosh ’ s parking of his 18

- w he eler on the road
created “ [ e ] xtremely unsafe ” driving condition s. Even McInto sh ’ s o wn expert testified that there was not enough room in the passing zone of the roa d for Long to have mane uvered aro und the 18

- w heeler

. T he State offer ed evidence that McIntosh ’ s pa rked 18

- w heeler rend ered the
road impass a ble, or at a minimum created unre asonably inconvenient or hazardous passage for a n y vehic le attempting to maneuver around it

. See Windham v . State , No

. 1 4

- 07

- 00193

- CR, 2008 WL 2169918, at * 3 (Tex. App.

— Houston [14 th Di st.] May 22, 2008 , pet. ref ’ d

) ( mem. op. , not desi gna ted for pub lication ) (holding that car
stoppe d at night on a fee der road along a bus y interstate highway rendered passage on
the road unreaso nably hazardous) ; Lauderback v. State , 789 S.W.2d 343 , 346

– 47 (Tex. App.

— Fort Worth 1990 , p et. ref ’ d

) ( holding t hat blocking one lane of tra vel on a busy day is sufficient to constitute render ing passage unreasonably inconve nient or
hazard ous)

. Second , McI ntosh argues that the only e vi dence supporting hi s convic tion is Long ’ s crash ing into the bac k of his 18

- w heeler

. H e argues that the wreck was not his7 faul t but was d ue to Long ’ s distracted driving. However, w e need not consider
whether McIntosh is co rr ect that Long ’ s a lleged distracted driving is a reasonable

a lternative to his guilt of the offense of obstruct ion of a highway . Tex. Penal Code Ann. § 42.03

. T he State wa s not required to produce evide nce excluding every other

rea sonable hypo thesis excep t that of guilt. The “outstanding reasona ble hypothesis of
innocence” construct as a method of appellat e review for evidentiary sufficiency is no longer applied in Texas c riminal cases. Manivanh v. Sta te , 334 S.W.3d 23, 28 (Tex.
A pp.

— Dall as 2008, pet. re f ’ d) (cit ing Geesa v. State , 820 S.W.2d 1 54, 16 0 (Tex. Crim. App. 1991) , overruled on other grounds by Paulson v. State , 28 S.W.3d 570, 573 (Tex. Crim. App. 2000) )

. Moreover, even if Long had not crashed into McIn to sh ’ s parked 18

-

w heeler , McIntosh could still be found gui l ty of the offense of obstruc ti on ; a person

com mi ts an offense if he obstructs a highway or street to which the public or a substantial gr oup of the public has access. Tex. Penal Code Ann. § 42.03

. C aus in g an

a ccident is not an e lement of the of fense of o bstruction

. See i d. Th erefore, e v idence
that McI ntosh o bstruct ed Zion Hill R oad was suffici ent to supp ort his conviction for
obstruction of a highway or street. See i d.
F inally, McIn tosh argue s th at under Threadgill v. State and Morrison v. S tate , c ases in wh ich the court s held t h e evidence insufficient to supp ort the appellant s ’
conviction s for obstructio n , this court cannot uphold his obstru ction conviction

. See Threadgill v. State , 241 S.W.2d 151, 152

– 53 ( Tex. C rim. App

. 1951); Morrison v. State , 71
S.W.3d 821, 827 (Tex. App.

— Corpus Christi

– E dinburg 2 002, no pet.). We disagree8 becau se those cases are distinguishabl e fr om th e facts of this case . Threadgill
construed a now

- repealed penal code article that criminalized willful obstructio n of a public road

. T hreadgill , 241 S.W. 2d at 152. In Threadgill , t he ap pellant sold fireworks
fro m two semi

- trailers t hat were parked on the s houlder of a road. Id. Customers stopped their vehicles along and on the road, creating a traffic h azard when som e of
the customers ’ cars obstruct ed a part of the paved portion of the road. Id. The S tate ch arged Threadgill with obstructi ng the roadway instead of charging the customers whose cars were in the roadway. Id. The Court of Crimina l Appeals agree d wi th
T hreadgill ’ s contention that the f acts of th e ca se did not show an obstruction of a public highw ay because Threadg ill did not park his trailers in such a way as to obstruct
passage. See i d. at 153 ; see also Hardy v. State , 281 S.W.3d 414 , 42 2 n.15 (Tex. Cr im.
A pp. 2009)

. In Morrison , the court o f appeals held t hat even though the appellant ’ s vehi cle

wa s st opped in a roadway, the re was still pl enty of room for other cars to pass

. Morrison , 71 S.W.3d at 82 8

. Further , the court stated that no violation of t h e statute is proven “by evidence tha t shows the defendan t only caused a slower passage or

mo mentarily impeded progress.” Id

. T h us, the ap p ellate court held that the appellant
had not committe d the offense of obstruction. Id.
Here

— u n l ike in Threadgil l an d M orrison where the pa r ked vehi cl es in question
either were not in the road at all or allowed other vehicles safe passag e along the other
part of the road

— McIntosh ’ s parked 18

- w heeler ef fe ctively bloc ked the r oadway by9 pre venting ot her v ehicle s from safel y driving around it

. Based on the e vidence
introduced at t rial, a ra tional trier of fact could have found that McIntosh’s act of parking his 18

- whe eler in the valley of the southbound lane of a n unlit road during a foggy and m isty n igh t rendered the road im passable or created an unreasonably
inconvenient or hazar dous cond ition for any driver coming up behind it

. See Tex. Penal Code Ann. § 42.03(b).
We overrule McIntosh ’ s first a nd secon d issue s . II. The J ur y C harge
In his third i s sue, McIn tosh claims that the trial c ourt erred by refusing to include his request ed language in the jury cha rge. McIntosh requested that the jury
cha rge i nclude the followin g sentence fro m Morrison : “ [ N ] o violation of the st atute is
pr oven ‘ by evidence that shows the d efendant only caused a slower pas sage or momentarily impeded progr ess. ’ ” 71 S.W.3d at 828. McIntosh argues that t he languag e from M orri son is a p ro per defense to the charge of obstruction and , t hus , sh ould have been included in the jury c ha rg e. We di sagre e. The fact that a driver merely caused “slower pa ssage ” or “mom entarily impeded progress ” involves n othing more than the p re sentation of evidence and argument that a defen dant di d not obstruct a roadway. In other words , t his is simply

t he negation of th e State ’ s allegation that a defendant render ed the road impassabl e or render ed passage unreasonably in convenient or hazardou s. Tex. Penal Code Ann. § 42.03 (b). D efensive i ssues that simply negate an element of the State ’ s burden of10 proof do not warrant s pecial jury instructions. Giesberg v. State , 984 S.W.2d 245, 249 (Tex. Crim. App. 1998)

. Add itio nally, a special instr uct ion r egarding “slower passage ” or “momentarily
im peded progress” would needlessly draw a jury ’ s a ttention to evidence that might
rai se such a c onclusion

. Therefore, a special instruction on “slower passage ” or “momentarily impe ded progress” would co nstitu te an unwarranted comment on the weight of the ev idenc e by the trial court. 2 See Tex

. Code Crim

. Proc

. Ann. art. 36. 14 ( stating tha t a jury charge should not express an opinion on the weight t o be g iven to any of the evidence ) ; c f. Hawkins v. State , 656 S .W.2d 70, 73 (Tex. Crim. App. 1983) (concluding th at a n instruction on the defense of good faith would be an improper
comment on the weight of the evidence ); Waller v. State , 581 S.W.2d 483, 48 4 (Te x. Crim. App. [Panel Op.] 1979) (noting tha t a jury

- cha rge instruction on
mi sidentification affirmative defe n se would have been an improper comment on the weight of the eviden ce ) ; Laws v. State , 549 S.W.2d 738 , 740 (Tex. Crim. App. 1977) ( determining t hat instructions on mistaken identity would constitute improper

comments on the weight of the evidence)

.

2 Furthermore, because the authority to est a blish what constitutes a defense rests solely with the Legislature, a defense n ot recognized by the Legislature does not warra nt a se parate instruction. Willis v. State , 790 S.W.2d 307, 314 (Tex. Crim. App. 1990)

. T he term defense s h ou l d not be used for an issue tha t has not been speci fically labeled as such by the Legislature. Wi lliams v. State , 630 S.W.2d 640, 644 (Tex. Cri m . App. 1982) (op. on reh ’ g)

.11 W e conclude that McIntosh was not entitled to a separ ate jury instruction on “slower passage ” or “momentaril y impeded progress ” because such an instruc tion
would merely negate an element of the State’s bu rde n of proof and c onstitute an unwarranted comment on the weight of the evid ence by the trial court

. W e overrule McIntosh ’ s third i ssu e. II I
. Motion for Ne w T rial In his fourth issue, McIntosh argue s that the trial court abu sed its discretion by denyin g his motion for new tri al. Three day s after the jury found McIntosh guil ty of
obstruction , a jur or ema iled McIntosh ’ s d efense coun sel and stated that she d id n ot believe that the S t ate had proved its case b eyond a reasonable d ou bt and that she only
agree d to the guilty verdict to avoi d a mistr ial

. The email al so include d information about the jur ors’ initial opinions regarding McIntosh’s guilt and expla ined the jurors ’
d eliberation process.
M cIntosh filed a motion for new trial claim ing that “ [t] he v erdict did not reflect the actual opinion of the Jury and is not a fair expression of t he juror ’ s opinio n. ”
McIntosh attached a co py of the juror ’ s email to his motion , but he did no t attach an
affida vi t settin g out the basi s for his claim

. Th e trial court denied McInto sh ’ s motion
for new trial. McIntosh argues t hat the trial court ’ s den ial was an abuse of discreti on . We di sagree.12 A. St andard of R eview
We review a trial court ’ s denial of a m otion for new tri al for an abuse of
discretion. State v. Gutierrez , 541 S.W.3d 91, 97

– 98 (Tex. Crim . App. 2017); State v. Simpson , 488 S.W.3d 318, 322 ( Tex. Crim. App. 2016); State v. Boyd , 20 2 S.W .3d 393, 401 (Tex. App.

— Dallas 2006, pet. ref ’ d). A t rial court is given w ide latitude in making the decision to grant or deny a m otion for new trial. Boyd , 202 S.W.3d at 401.
B. A pplic able L aw A defend ant must be granted a new trial or a new trial on punis hment when the
verdict has b een decided by lot or in any manner other than a fa ir expression of the jurors ’ opinion

. Tex. R . App. P. 21.3 (c)

. However, a defen dant who raise s an iss ue not determinable from the record is not entitled to a hearing on his mo tion for new
trial unless he “establishes the existence of ‘reasonable grounds ’ showing that the
defendant ‘could be entitle d to relief.’ ” Lucero v. State , 246 S.W.3d 86, 95 (Tex. Crim

. App. 2008) ( h o ld ing that the trial court did not abuse its d iscretion by decl ining to
hold a hear ing on appellant ’ s motion for new trial because the record presented no

re asonable grounds to believe that the alleged jury misconduct affected the jury ’ s verdic t , and citing Wallac e v. State , 10 6 S.W.3d 103, 108 (Tex

. C rim. App. 2003) )

. T hus , as a prerequisite to a hearing when the grounds in the motion are ba sed on

matters not in the reco rd, the motion must be supported by an affid avi t of ei ther the
defen dant or someone else specific ally setting out the factual basis f or the claim.
Smith v. State , 286 S.W.3d 333, 339 (Tex . Cri m. A pp. 2009). The affidavit nee d not13 establish a prima facie case or even “ ‘ reflect every component legall y require d to
establis h ’ relief.” Reyes v. State , 8 49 S.W.2d 812, 81 6 (Tex. Crim. App. 1993) (quoting
M cIntire v. State , 698 S.W.2d 65 2, 658 (Tex. Crim. App. 1985) ); see also W allace , 106
S.W.3d at 108 ( stat ing that the defendant ’ s motion and supporting affidavits “must merely refle ct tha t reasonable groun d s e xist for holding that such reli e f could be granted” (emphasis added) (quoting M artinez v. State , 74 S.W.3d 19, 22 (Tex. Cr im. App. 2002)).
C. No A buse of D iscretion
McI ntosh failed to attach a n affidavit to his m otion fo r new trial setting out the
basi s for the motion

. Because h e atta c hed only the email

— w h ich was inadmissible hearsay

— and did not attach the required a ffi davit , the trial c ourt did n o t abuse its discretion by denying McIntosh ’ s m otion fo r new trial. Se e Sm ith , 286 S.W.3d at 339

. Moreover, even if the contents of the ema i l had been submitted to t he trial court in an affidavit, the juror would hav e been prohibited from testif ying to the ma tter s contained in it by Texas Rule of Evidenc e 606(b)

. See Te x. R. Evid . 606(b) ( st ating
that a juror may not testi f y about any statem e nt made or incident that occurred during the jury ’ s deliberations; the effect of anything on that juror ’ s or another ju ror ’ s vote; or any juror ’ s mental processes co ncerning the verdict or indictment , and t he court may not receive a jur or ’ s affidavit or e v idence of a juror ’ s stat e ment on these matters )

. T he trial court did not ab use it s di sc retion by denying McIntosh ’ s mo tion fo r new trial. Accordingly, we overru le McIntosh ’ s fourth issue

.14 I V. Conclusio n
H avin g o verruled McIntosh ’ s four issues, w e affi r m the j udg ment of the t r ial

court. /s/ Wade Birdwell
Wa d e Birdwell Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delive red : August 4, 2022