In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-24-00453-CR
MATTHEW JOHN FLASKRUD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 22-03-02944-CR
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 fortyeight 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.
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