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.

Memorandum Opinion by Justice Birdwell

KENNETH R. MCINTOSH JR., Appellant

V. 

THE STATE OF TEXAS
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MEMORANDUM OPINION

Appellant, Kenneth R. McIntosh Jr., was charged with obstruction of a 

highway or street. He entered a plea of not guilty. The jury found McIntosh guilty,

and the trial court imposed a fine of $1,200 and sentenced him to 120 days of 

imprisonment probated for 15 months.

In four issues, McIntosh appeals the trial court’s judgment.

I. Sufficiency of the Evidence – Issues 1 and 21

In his first issue, McIntosh claims that the evidence is insufficient to support 

his conviction. In his second issue, he argues that no rational factfinder could have 

found him guilty of obstruction under the facts of this case. Because McIntosh’s first 

and second issues challenge the sufficiency of the evidence, we will address them 

together.

A. Standard of Review

In our evidentiary-sufficiency review, we view all the evidence in the light most 

favorable to the verdict to determine whether any rational factfinder could have found 

the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 

307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. 

Crim. App. 2017).

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Because we set out the facts in detail in McIntosh’s sufficiency issues, we do 

not include a separate factual statement.
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B. Evidence of Obstruction

A person commits the offense of obstruction if, without legal privilege or 

authority, he intentionally, knowingly, or recklessly obstructs a highway or street to 

which the public 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 passage 

unreasonably inconvenient or hazardous.” Id. § 42.03(b).

During trial, the jury learned that while making a delivery to Rodney and Leah 

Riedel in Parker County, McIntosh parked his 18-wheeler in the southbound lane of 

Zion Hill Road despite being warned about the road’s dangerous conditions. Zion 

Hill Road is a two-lane country road that runs north and south. It has narrow

shoulders that abruptly slope into a ditch. The speed limit on the road is 60 miles per 

hour. Because there are no lights on the road, it is very dark at night.

McIntosh parked his 18-wheeler on a spot on the road situated in a valley 

between two steep hills. Leah had warned McIntosh that it would be unsafe for him 

to park on the road. Specifically, she informed him that the road was “dangerous,”

and that people often sped down the road and “did not pay attention.” While 

McIntosh’s 18-wheeler was parked on the road, Binion Long crashed his pickup truck 

into the back of it.

Both McIntosh and the State presented expert testimony regarding the ability 

of other vehicles to safely pass McIntosh’s 18-wheeler. Lee Jackson, an accident

reconstruction expert for the State, testified that Long “had nowhere to go” when he 
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came upon McIntosh’s parked 18-wheeler. Specifically, Jackson testified that, as it 

relates to Long’s crashing into McIntosh’s parked 18-wheeler, Long “couldn’t go to

the right, couldn’t go to the left in oncoming traffic[, and] [a]n attempt to pass would 

have put [Long] dangerously close to the no passing zone.” Jackson concluded that 

Long didn’t have “any option at all” and that the 18-wheeler’s “being in that location 

didn’t leave him any options.” Further, Jackson stated that due to the foggy weather 

condition present at the time of the accident and the fact that the 18-wheeler was 

parked at the bottom of a hill, Long had no way to know if a car was traveling in the

northbound lane of the road, and that any attempt by Long to go around McIntosh’s

18-wheeler was akin to his “taking [his] life into [his] own hands by going into the 

oncoming traffic lane and being involved in a head-on collision.” In Jackson’s 

opinion, McIntosh’s parking of the 18-wheeler in the southbound lane of the road 

was a reckless act that created an extreme hazard for which there was no justification.

McIntosh called another accident reconstruction expert, Daniel Phillips, to 

testify on his behalf. On the one hand, Phillips testified that McIntosh’s parked 

18-wheeler did not create a hazard for other drivers, but he also testified that there

was not enough room in the passing zone of the road for Long to maneuver around

it.

The jury also heard testimony from Texas Department of Public Safety 

Trooper Lucious Pitts. Pitts was dispatched to the scene of the wreck. Pitts testified 

that as he approached the wreck, he observed that the roadway was wet and that his 
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visibility was diminished by mist and fog. Pitts stated that due to the weather 

conditions, he approached the wreck cautiously.

While at the scene, Pitts decided to check Long’s truck’s speedometer. Pitts 

observed that the speedometer was locked in place at “not exactly on,” but not over, 

55 miles per hour—meaning Long’s truck was traveling under 55 miles per hour when 

it crashed into the back of McIntosh’s 18-wheeler. Pitts determined that the 18-

wheeler had been blocking the entire southbound lane of Zion Hill Road when the 

wreck occurred.

Pitts further testified that it would have been hazardous for Long to have 

attempted to drive around McIntosh’s parked 18-wheeler because there was a steep 

ditch on the truck’s right side and the oncoming traffic lane on the left side was on a 

steep hill that made it difficult to see oncoming traffic.

The jury also heard testimony from volunteer fireman Jerred Hicks. Hicks was

also dispatched to the scene of the collision. Hicks testified that when he arrived, his 

visibility was “poor” due to fog and mist. Hicks stated that he could not see the 

wreck until he was within 150 to 200 feet of it. In his opinion, it was extremely unsafe 

of McIntosh to have parked on the roadway where the collision occurred.

C. Analysis 

McIntosh makes several arguments to support his sufficiency issue. First, he 

argues that the State “offered no evidence that the road was rendered impassable[, and 

that the] only fact of dispute was if the passageway was rendered unreasonably 
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inconvenient or hazardous.” We disagree. The State’s expert, Jackson, testified that 

Long “had nowhere to go” when he came upon McIntosh’s parked 18-wheeler and 

that McIntosh’s act of parking his 18-wheeler on the road was reckless and “extremely

hazardous.” Pitts testified that McIntosh’s truck blocked the entire southbound lane 

of the road and that an attempt by Long to drive around the truck would have been

“hazardous.” Hicks testified that McIntosh’s parking of his 18-wheeler on the road

created “[e]xtremely unsafe” driving conditions. Even McIntosh’s own expert 

testified that there was not enough room in the passing zone of the road for Long to 

have maneuvered around the 18-wheeler.

The State offered evidence that McIntosh’s parked 18-wheeler rendered the 

road impassable, or at a minimum created unreasonably inconvenient or hazardous

passage for any vehicle attempting to maneuver around it. See Windham v. State, 

No. 14-07-00193-CR, 2008 WL 2169918, at *3 (Tex. App.—Houston [14th Dist.] 

May 22, 2008, pet. ref’d) (mem. op., not designated for publication) (holding that car 

stopped at night on a feeder road along a busy interstate highway rendered passage on

the road unreasonably hazardous); Lauderback v. State, 789 S.W.2d 343, 346–47 (Tex.

App.—Fort Worth 1990, pet. ref’d) (holding that blocking one lane of travel on a 

busy day is sufficient to constitute rendering passage unreasonably inconvenient or

hazardous).

Second, McIntosh argues that the only evidence supporting his conviction is

Long’s crashing into the back of his 18-wheeler. He argues that the wreck was not his 
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fault but was due to Long’s distracted driving. However, we need not consider 

whether McIntosh is correct that Long’s alleged distracted driving is a reasonable 

alternative to his guilt of the offense of obstruction of a highway. Tex. Penal Code 

Ann. § 42.03. The State was not required to produce evidence excluding every other 

reasonable hypothesis except that of guilt. The “outstanding reasonable hypothesis of 

innocence” construct as a method of appellate review for evidentiary sufficiency is no 

longer applied in Texas criminal cases. Manivanh v. State, 334 S.W.3d 23, 28 (Tex.

App.—Dallas 2008, pet. ref’d) (citing Geesa v. State, 820 S.W.2d 154, 160 (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 McIntosh’s parked 18-

wheeler, McIntosh could still be found guilty of the offense of obstruction; a person 

commits an offense if he obstructs a highway or street to which the public or a 

substantial group of the public has access. Tex. Penal Code Ann. § 42.03. Causing an 

accident is not an element of the offense of obstruction. See id. Therefore, evidence 

that McIntosh obstructed Zion Hill Road was sufficient to support his conviction for 

obstruction of a highway or street. See id.

Finally, McIntosh argues that under Threadgill v. State and Morrison v. State, cases 

in which the courts held the evidence insufficient to support the appellants’

convictions for obstruction, this court cannot uphold his obstruction conviction. See 

Threadgill v. State, 241 S.W.2d 151, 152–53 (Tex. Crim. App. 1951); Morrison v. State, 71 

S.W.3d 821, 827 (Tex. App.—Corpus Christi–Edinburg 2002, no pet.). We disagree
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because those cases are distinguishable from the facts of this case. Threadgill

construed a now-repealed penal code article that criminalized willful obstruction of a 

public road. Threadgill, 241 S.W.2d at 152. In Threadgill, the appellant sold fireworks 

from two semi-trailers that were parked on the shoulder of a road. Id. Customers 

stopped their vehicles along and on the road, creating a traffic hazard when some of 

the customers’ cars obstructed a part of the paved portion of the road. Id. The State 

charged Threadgill with obstructing the roadway instead of charging the customers 

whose cars were in the roadway. Id. The Court of Criminal Appeals agreed with 

Threadgill’s contention that the facts of the case did not show an obstruction of a 

public highway because Threadgill did not park his trailers in such a way as to obstruct

passage. See id. at 153; see also Hardy v. State, 281 S.W.3d 414, 422 n.15 (Tex. Crim. 

App. 2009).

In Morrison, the court of appeals held that even though the appellant’s vehicle

was stopped in a roadway, there was still plenty of room for other cars to pass. 

Morrison, 71 S.W.3d at 828. Further, the court stated that no violation of the statute is 

proven “by evidence that shows the defendant only caused a slower passage or 

momentarily impeded progress.” Id. Thus, the appellate court held that the appellant 

had not committed the offense of obstruction. Id.

Here—unlike in Threadgill and Morrison where the parked vehicles in question

either were not in the road at all or allowed other vehicles safe passage along the other 

part of the road—McIntosh’s parked 18-wheeler effectively blocked the roadway by 
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preventing other vehicles from safely driving around it. Based on the evidence 

introduced at trial, a rational trier of fact could have found that McIntosh’s act of

parking his 18-wheeler in the valley of the southbound lane of an unlit road during a

foggy and misty night rendered the road impassable or created an unreasonably 

inconvenient or hazardous condition for any driver coming up behind it. See Tex. 

Penal Code Ann. § 42.03(b).

We overrule McIntosh’s first and second issues.

II. The Jury Charge 

In his third issue, McIntosh claims that the trial court erred by refusing to 

include his requested language in the jury charge. McIntosh requested that the jury 

charge include the following sentence from Morrison: “[N]o violation of the statute is 

proven ‘by evidence that shows the defendant only caused a slower passage or 

momentarily impeded progress.’” 71 S.W.3d at 828. McIntosh argues that the 

language from Morrison is a proper defense to the charge of obstruction and, thus,

should have been included in the jury charge. We disagree.

The fact that a driver merely caused “slower passage” or “momentarily 

impeded progress” involves nothing more than the presentation of evidence and 

argument that a defendant did not obstruct a roadway. In other words, this is simply 

the negation of the State’s allegation that a defendant rendered the road impassable or 

rendered passage unreasonably inconvenient or hazardous. Tex. Penal Code Ann. 

§ 42.03(b). Defensive issues that simply negate an element of the State’s burden of 
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proof do not warrant special jury instructions. Giesberg v. State, 984 S.W.2d 245, 249

(Tex. Crim. App. 1998).

Additionally, a special instruction regarding “slower passage” or “momentarily 

impeded progress” would needlessly draw a jury’s attention to evidence that might 

raise such a conclusion. Therefore, a special instruction on “slower passage” or 

“momentarily impeded progress” would constitute an unwarranted comment on the 

weight of the evidence by the trial court.2

 See Tex. Code Crim. Proc. Ann. art. 36.14 

(stating that a jury charge should not express an opinion on the weight to be given to 

any of the evidence); cf. Hawkins v. State, 656 S.W.2d 70, 73 (Tex. Crim. App. 1983)

(concluding that an 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, 484 (Tex. 

Crim. App. [Panel Op.] 1979) (noting that a jury-charge instruction on 

misidentification affirmative defense would have been an improper comment on the

weight of the evidence); Laws v. State, 549 S.W.2d 738, 740 (Tex. Crim. App. 1977)

(determining that instructions on mistaken identity would constitute improper 

comments on the weight of the evidence).

2

Furthermore, because the authority to establish what constitutes a defense 

rests solely with the Legislature, a defense not recognized by the Legislature does not 

warrant a separate instruction. Willis v. State, 790 S.W.2d 307, 314 (Tex. Crim. App. 

1990). The term defense should not be used for an issue that has not been specifically 

labeled as such by the Legislature. Williams v. State, 630 S.W.2d 640, 644 (Tex. Crim.

App. 1982) (op. on reh’g).
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We conclude that McIntosh was not entitled to a separate jury instruction on 

“slower passage” or “momentarily impeded progress” because such an instruction

would merely negate an element of the State’s burden of proof and constitute an 

unwarranted comment on the weight of the evidence by the trial court.

We overrule McIntosh’s third issue.

III. Motion for New Trial

In his fourth issue, McIntosh argues that the trial court abused its discretion by 

denying his motion for new trial. Three days after the jury found McIntosh guilty of 

obstruction, a juror emailed McIntosh’s defense counsel and stated that she did not 

believe that the State had proved its case beyond a reasonable doubt and that she only 

agreed to the guilty verdict to avoid a mistrial. The email also included information 

about the jurors’ initial opinions regarding McIntosh’s guilt and explained the jurors’

deliberation process.

McIntosh filed a motion for new trial claiming that “[t]he verdict did not reflect 

the actual opinion of the Jury and is not a fair expression of the juror’s opinion.” 

McIntosh attached a copy of the juror’s email to his motion, but he did not attach an 

affidavit setting out the basis for his claim. The trial court denied McIntosh’s motion 

for new trial. McIntosh argues that the trial court’s denial was an abuse of discretion. 

We disagree.
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A. Standard of Review

We review a trial court’s denial of a motion for new trial 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, 202 S.W.3d 393, 

401 (Tex. App.—Dallas 2006, pet. ref’d). A trial court is given wide latitude in making 

the decision to grant or deny a motion for new trial. Boyd, 202 S.W.3d at 401.

B. Applicable Law

A defendant must be granted a new trial or a new trial on punishment when the 

verdict has been decided by lot or in any manner other than a fair expression of the 

jurors’ opinion. Tex. R. App. P. 21.3(c). However, a defendant who raises an issue

not determinable from the record is not entitled to a hearing on his motion for new 

trial unless he “establishes the existence of ‘reasonable grounds’ showing that the 

defendant ‘could be entitled to relief.’” Lucero v. State, 246 S.W.3d 86, 95 (Tex. Crim.

App. 2008) (holding that the trial court did not abuse its discretion by declining to 

hold a hearing on appellant’s motion for new trial because the record presented no 

reasonable grounds to believe that the alleged jury misconduct affected the jury’s

verdict, and citing Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003)). 

Thus, as a prerequisite to a hearing when the grounds in the motion are based on 

matters not in the record, the motion must be supported by an affidavit of either the 

defendant or someone else specifically setting out the factual basis for the claim.

Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). The affidavit need not 
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establish a prima facie case or even “‘reflect every component legally required to 

establish’ relief.” Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993) (quoting 

McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985)); see also Wallace, 106 

S.W.3d at 108 (stating that the defendant’s motion and supporting affidavits “must 

merely reflect that reasonable grounds exist for holding that such relief could be 

granted” (emphasis added) (quoting Martinez v. State, 74 S.W.3d 19, 22 (Tex. Crim.

App. 2002)).

C. No Abuse of Discretion

McIntosh failed to attach an affidavit to his motion for new trial setting out the 

basis for the motion. Because he attached only the email—which was inadmissible 

hearsay—and did not attach the required affidavit, the trial court did not abuse its 

discretion by denying McIntosh’s motion for new trial. See Smith, 286 S.W.3d at 339. 

Moreover, even if the contents of the email had been submitted to the trial court in an 

affidavit, the juror would have been prohibited from testifying to the matters 

contained in it by Texas Rule of Evidence 606(b). See Tex. R. Evid. 606(b) (stating 

that a juror may not testify about any statement made or incident that occurred during 

the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; 

or any juror’s mental processes concerning the verdict or indictment, and the court 

may not receive a juror’s affidavit or evidence of a juror’s statement on these matters). 

The trial court did not abuse its discretion by denying McIntosh’s motion for new 

trial. Accordingly, we overrule McIntosh’s fourth issue.
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IV. Conclusion 

Having overruled McIntosh’s four issues, we affirm the judgment of the trial 

court.

/s/ Wade Birdwell

Wade Birdwell

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: August 4, 2022