ACCEPTED
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12-15-00018-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/29/2015 4:28:07 PM
Pam Estes
CLERK
CAUSE NUMBER 12-15-00018-CR
RECEIVED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE COURT OF APPEALS FOR THE 9/29/2015 4:28:07 PM
PAM ESTES
TWELFTH APPELLATE DISTRICT OF TEXAS Clerk
AT TYLER
9/29/2015
TIMOTHY TANNER VIATOR
VS.
THE STATE OF TEXAS
CAUSE NUMBER 31,699
IN THE 3RD JUDICIAL DISTRICT COURT
ANDERSON COUNTY, TEXAS
APPELLANT'S BRIEF
Colin D. McFall
Attorney at Law
513 North Church Street
Palestine, Texas 75801-2962
Telephone: 903-723-1923
Facsimile: 903-723-0269
Email: cmcfall@mcfall-•law-office.com
Counsel for Appellant
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IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule 38.1 (a), Texas Rules of Appellate Procedure, Appellant
provides a complete list of all parties and the names and addresses of Counsel:
Defendant: Timothy Tanner Viator
1200 East Lacy Street
Palestine, Texas 75801
Defendant's Trial Counsel: Colin D. McFall
Attorney at Law
513 North Church Street
Palestine, Texas 75801-2962
Telephone: 903-723-1923
Facsimile: 903-723-0269
State's Trial Counsel: Stanley Sokolowski
First Assistant Criminal District Attorney
Anderson County Courthouse
500 North Church Street
Palestine, Texas 75801
Telephone: 903-723-7400
Facsimile: 903-723-7818
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Appellant: Timothy Tanner Viator
Hutchins Unit
1500 East Langdon Road
Dallas, Texas 75241
Appellant's Counsel: Colin D. McFall
Attorney at Law
513 North Church Street
Palestine, Texas 75801-2962
Telephone: 903-723-1923
Facsimile: 903-723-0269
Appellee's Counsel: Allyson Mitchell
Criminal District Attorney
Anderson County Courthouse
500 North Church Street
Palestine, Texas 75801
Telephone: 903-723-7400
Facsimile: 903-723-7818
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 4
INDEX OF AUTHORITIES 5
STATEMENT OF THE CASE 7
STATEMENT REGARDING ORAL ARGUMENT 8
IS SUES PRESENTED
I. THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A
CONVICTION FOR ENGAGING IN ORGANIZED CRIMINAL
ACTIVITY 9
STATEMENT OF FACTS 10
SUMMARY OF THE ARGUMENT 13
ARGUMENT 16
PRAYER 21
CERTIFICATE OF COMPLIANCE 22
CERTIFICATE OF SERVICE 23
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INDEX OF AUTHORITIES
CASES PAGE
FEDERAL
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979) .16
TEXAS
Arredondo v. State, 270 S.W.3d 676
(Tex.App.-Eastland 2008, no pet.) 18
Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App.2010) 16
Dowdle v. State, 11 S.W.3d 233 (Tex.Crim.App.2000) 18
Hart v. State, 89 S.W.3d 61, (Tex.Crim.App.2002) 17
Hooper v. State, 214 S.W.3d 9 (Tex.Cri,App.2007) 16
Isassi v. State, 330 S.W.3d 633 (Tex.Crim.App.2010) 17
Montgomery v. State, 369 S.W.3d 188 (Tex.Crim.App.2012) 17
Munoz v. State, 29 S.W.3d 205
(Tex.App.-Amarillo 2000, no pet.) .19
Nguyen v. State, 1 S.W.3d 694 (Tex.Crim.App.1999) 17, 18
Ross v. State, 9 S.W.3d 878 (Tex.App.-Austin 2000, pet. ref d) 18
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RULES AND STATUTES PAGE
TEXAS PENAL CODE
Section 71.01(a), Texas Penal Code. 17, 18
Section 71.02(a) (1), Texas Penal Code 17
TEXAS RULES OF APPELLATE PROCEDURE
Rule 9.4(i) (3), Texas Rules of Appellate Procedure 22
Rule 38.1(a), Texas Rules of Appellate Procedure 2
Rule 38.1(e), Texas Rules of Appellate Procedure 8
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STATEMENT OF THE CASE
On the 10th day of April 2014, an Anderson County Grand Jury returned a
five count Indictment, charging Appellant with four counts of Forgery (Counts I -
IV) and a single count (County V) of Engaging in Organized Criminal Activity
(C.R., Vol. 1, Pg. 5).
On the 7th day of October 2014, Appellant plead not guilty to the four counts
of Forgery (R.R., Vol. 2, Pg. 82, L. 21), (R.R., Vol. 2, Pg. 82, L. 24), (R.R., Vol. 2,
Pg. 83, L. 2), (R.R., Vol. 2, Pg. 83, L. 5) and the single count of Engaging in
Organized Criminal Activity (R.R., Vol. 2, Pg. 83, L. 8).
On the 9th day of October 2014, the jury found Appellant guilty of four
counts of Forgery (R.R., Vol. 4, Pg. 106, L. 4), (R.R., Vol. 4, Pg. 106, L. 9), (R.R.,
Vol. 4, Pg. 106, L. 14), (R.R., Vol. 4, Pg. 106, L. 19) and a single count of
Engaging in Organized Criminal Activity (R.R., Vol. 4, Pg. 106, L. 24).
On the 19th day of December 2014, the Court sentenced Appellant to ten (10)
years confinement in Count I (R.R., Vol. 5, Pg. 27, L. 23), ten (10) years
confinement in Count II (R.R., Vol. 5, Pg. 28, L. 3), ten (10) years confinement in
Count III (R.R., Vol. 5, Pg. 28, L. 6), ten (10) years confinement in Count IV (R.R.,
Vol. 5, Pg. 28, L. 9), and twelve (12) years confinement in Count V (R.R., Vol. 5,
Pg. 28, L. 12).
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STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Rule 38.1 (e), Texas Rules of Appellate Procedure, Appellant
provides the following Statement Regarding Oral Argument:
Appellant does not request Oral Argument.
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ISSUE PRESENTED
THE EVIDENCE IS LEGALLY INSUFFICIENT TO
SUPPORT A CONVICTION FOR ENGAGING IN
ORGANIZED CRIMINAL ACTIVITY.
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STATEMENT OF FACTS
Appellant and Co-Defendant Colby Mitchell developed a history of taking
road trips together. Co-Defendant Colby Mitchell testified he would provide a
vehicle and drive, while Appellant would pay for Co-Defendant Colby Mitchell's
time, gas and expenses (R.R., Vol. 4, Pg. 10, L. 5-13). Co-Defendant Colby
Mitchell further testified that in February of 2014, Appellant contacted him to make
a road trip to Texas (R.R., Vol. 4, Pg. 10, L. 16). Although Appellant stated, via a
videotaped statement, that Co-Defendant Colby Mitchell offered to pay Appellant's
way on the Texas road trip (Exhibit 28). Co-Defendant Colby Mitchell testified
that he and his cousin, Co-Defendant Troy Mouton, living together (R.R., Vol. 4,
Pg. 10, L. 16), but Co-Defendant Colby Mitchell's driver's license had been
suspended (R.R., Vol. 4, Pg. 11, L. 4), and Co-Defendant Troy Mouton's vehicle
was impounded (R.R., Vol. 4, Pg. 11, L. 12). Thus, Co-Defendant Joshua Breaux,
with a valid license and vehicle, also joined the road trip (R.R., Vol. 4, Pg. 11, L.
12).
The four Co-Defendants stopped at a friend's house (R.R., Vol. 4, Pg. 11, L.
24) (Exhibit 30), and stores (R.R., Vol. 3, Pg. 103, L. 3), (R.R., Vol. 3, Pg. 104, L.
1), (R.R., Vol. 4, Pg. 12, L. 4), (R.R., Vol. 4, Pg. 12, L. 16), (Exhibit 30) for
cigarettes (R.R., Vol. 3, Pg. 103, L. 5), (R.R., Vol. 3, Pg. 104, L. 6), (R.R., Vol. 3,
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Pg. 104, L. 20) (R.R., Vol. 4, Pg. 12, L. 18) (R.R., Vol. 4, Pg. 12, L. 20) drinks
(R.R., Vol. 3, Pg. 104, L. 20) and McDonald's for food (R.R., Vol. 4, Pg. 12, L.
19). The four Co-Defendants stopped for gas when Co-Defendant Breaux came
running out of the store and they drove away (R.R., Vol. 4, Pg. 12, L. 22) (R.R.,
Vol. 4, Pg. 24, L. 3). Co-Defendant Colby Mitchell, knowing Co-Defendant
Breaux has a history of violence and running off at the mouth (R.R., Vol. 4, Pg. 24,
L. 23), believed Co-Defendant Joshua Breaux was running from a fight (R.R., Vol.
4, Pg. 12, L. 24) (R.R., Vol. 4, Pg. 25, L. 7).
Later, Co-Defendant Colby Mitchell realize Co-Defendant Breaux was
possessing counterfeit money. (R.R., Vol. 4, Pg. 12, L. 25). Co-Defendant Colby
Mitchell testified that Co-Defendant Colby Mitchell (R.R., Vol. 4, Pg. 13, L. 9),
Co-Defendant Joshua Breaux (R.R., Vol. 4, Pg. 13, L. 4), (R.R., Vol. 4, Pg. 13, L.
14) and Co-Defendant Troy Mouton received the Counterfeit money from
Appellant (R.R., Vol. 4, Pg. 13, L. 19).
Co-Defendant Mouton testified he knew the money was fake (R.R., Vol. 3,
Pg. 105, L. 10) (R.R., Vol. 3, Pg. 114, L. 13) (R.R., Vol. 3, Pg. 114, L. 15) because
Co-Defendant Joshua Breaux told him the money was fake (R.R., Vol. 3, Pg. 105,
L. 12), (R.R., Vol. 3, Pg. 105, L. 14) (R.R., Vol. 3, Pg. 106, L. 2). Co-Defendant
Mouton also stated that Appellant had all the money and that he would ask Co-
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Defendant Mouton to spend money for Appellant (Exhibit 27).
Officers stopped the vehicle at J.J.'s 107 (R.R., Vol. 3, Pg. 9, L. 4) and
detained Co-Defendant Troy Mouton, Co-Defendant Colby Mitchell, and Co-
Defendant Breaux (R.R., Vol. 3, Pg. 10, L. 22). Appellant had walked across the
street and passed a counterfeit fifty dollar bill at the Boxcar Deli (R.R., Vol. 3, Pg.
11, L. 9) (R.R., Vol. 3, Pg. 11, L. 5), (R.R., Vol. 3, Pg. 13, L. 21), (R.R., Vol. 3, Pg.
111, L. 18). Appellant saw the police detained Co-Defendant Troy Mouton, Co-
Defendant Colby Mitchell, and Co-Defendant Breaux at J.J.'s 107, and left the
scene (Exhibit 28). The State eventually took Appellant into custody at the
Dogwood Theater (R.R., Vol. 3, Pg. 12, L. 9). Appellant was found in possession
of five counterfeit fifty dollar bills (R.R., Vol. 3, Pg. 14, L. 3),
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SUMMARY OF THE ARGUMENT
THE EVIDENCE IS LEGALLY INSUFFICIENT TO
SUPPORT A CONVICTION FOR ENGAGING IN
ORGANIZED CRIMINAL ACTIVITY.
The legal sufficiency standard is the only standard a reviewing Court should
apply in determining whether the evidence is sufficient to support a guilty verdict.
The critical inquiry is, in viewing the evidence in the light most favorable to the
prosecution after a verdict of guilt, whether any rational jury could have found the
essential elements of the crime beyond a reasonable doubt.
Each fact does not need to directly and independently point to the guilt of the
Appellant as long as the cumulative force of all the incriminating circumstances is
ultimately sufficient to support the conviction.
When performing a legal sufficiency review, Courts may not reevaluate the
weight and credibility of the evidence and substitute their own judgment for that of
the jury. When faced with record supporting contradictory inferences, we presume
the jury resolved conflicts in favor of the verdict.
A Defendant commits the offense of Engaging in Organized Criminal
Activity if, with the intent to establish, maintain, or participate in a combination, he
commits or conspires to commit one or more of the enumerated offenses, including
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forgery. A "combination" is three or more persons who collaborate in carrying on
criminal activities. The Court has construed this language as requiring a
"continuing course of criminal activities." This involves more than the intent to
merely commit an enumerated offense, a plan to commit a single act, or proof of
working jointly to commit a crime—it requires proof of continuity.
The activities do not have to individually be criminal offenses to satisfy the
statutory requirement, and a single criminal offense can be sufficient. However, the
statute requires proof of intended continuity, i.e., that "the appellant intended to
establish, maintain, or participate in' a group of three or more, in which the
members intend to work together in a continuing course of criminal activities."
Evidence that multiple criminal violations occurred is not alone sufficient to
establish intent to engage in a continuous course of criminal activity when all of the
alleged violations occurred during a single criminal episode.
To satisfy the continuity element, the State must offer evidence to prove the
Defendant intended to participate in a continuing course of criminal activity. The
combination's members must be more than temporarily organized to engage in a
single criminal episode. There must be proof of intent to participate in a criminal
combination that extends beyond a single criminal episode, ad hoc effort, or goal,
regardless of whether multiple laws were broken within the confines of that episode
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or effort. Evidence of multiple criminal violations alone does not permit the
inference that the members of the group intended to continue working together
beyond the completion of an episode or achievement of a goal. The State must
offer evidence that allows a jury to infer that the group intended to continue
engaging in illegality over a period of time.
Appellee failed to evidence that Appellant intended to participate in a
continuing course of criminal activity. Appellee failed to evidence the
combination's members were more than temporarily organized to engage in a single
criminal episode. Appellee failed to evidence an intent to participate in a criminal
combination that extends beyond a single criminal episode, ad hoc effort, or goal,
despite the multiple laws that were broken within the confines of that episode or
effort. Appellee failed to introduce evidence that allowed the Jury to infer that the
group intended to continue engaging in illegality over a period of time. Essentially,
Appellee proved nothing more than a single criminal episode that merely contained
more than one criminal offense.
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ARGUMENT
THE EVIDENCE IS LEGALLY INSUFFICIENT TO
SUPPORT A CONVICTION FOR ENGAGING IN
ORGANIZED CRIMINAL ACTIVITY.
The legal sufficiency standard is the only standard a reviewing Court should
apply in determining whether the evidence is sufficient to support a guilty verdict
Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010). The critical inquiry is,
in viewing the evidence in the light most favorable to the prosecution after a verdict
of guilt, whether any rational jury could have found the essential elements of the
crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912
(Tex.Crim.App.2010) (Holding that all Texas criminal cases are only to be
reviewed under the standard announced in Jackson v. Virginia, 443 U.S. 307, 319,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
Each fact does not need to directly and independently point to the guilt of the
Appellant as long as the cumulative force of all the incriminating circumstances is
ultimately sufficient to support the conviction. Circumstantial evidence is equally
as probative as direct evidence in establishing guilt, and circumstantial evidence
alone can be sufficient to support a conviction. Hooper v. State, 214 S.W.3d 9, 13
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(Tex.Crim.App.2007).
When performing a legal sufficiency review, Courts may not reevaluate the
weight and credibility of the evidence and substitute their own judgment for that of
the jury. Montgomery v. State, 369 S.W.3d 188, 192 (Tex.Crim.App.2012); see also
Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.2010) ("[O]ur role is not to
become a thirteenth juror."). When faced with a record supporting contradictory
inferences, we presume the jury resolved conflicts in favor of the verdict.
Montgomery v. State, 369 S.W.3d 188, 192 (Tex.Crim.App.2012).
A Defendant commits the offense of Engaging in Organized Criminal
Activity if, with the intent to establish, maintain, or participate in a combination, he
commits or conspires to commit one or more of the enumerated offenses, including
forgery. Tex. Penal Code § 71.02(a) (1). Section 71.01 (a), Texas Penal Code,
defines a "combination" as three or more persons who collaborate in carrying on
criminal activities. The Court of Criminal Appeals has construed this language as
requiring a "continuing course of criminal activities." Nguyen v. State, 1 S.W.3d
694, 697 (Tex.Crim.App.1999). This involves more than the intent to merely
commit an enumerated offense, a plan to commit a single act, or proof of working
jointly to commit a crime—it requires proof of continuity. Hart v. State, 89 S.W.3d
61, 63-64 (Tex.Crim.App.2002); Nguyen v. State, 1 S.W.3d 694, 696-97
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(Tex.Crim.App.1999).
The activities do not have to individually be criminal offenses to satisfy the
statutory requirement, and a single criminal offense can be sufficient. Nguyen v.
State, 1 S.W.3d 694, 697 (Tex.Crim.App.1999); see also Dowdle v. State, 11
S.W.3d 233, 236 (Tex.Crim.App.2000) (continuous activities after a shooting
included fleeing, re-grouping, discussing a plan of action, and traveling to another
country with stolen goods). However, the statute requires proof of intended
continuity, i.e., that "the appellant intended to establish, maintain, or participate in'
a group of three or more, in which the members intend to work together in a
continuing course of criminal activities." Nguyen v. State, 1 S.W.3d 694, 697
(Tex. Crim.App .1999).
Evidence that multiple criminal violations occurred is not alone sufficient to
establish an intent to engage in a continuous course of criminal activity as required
under Section 71.01(a), Texas Penal Code, when all of the alleged violations
occurred during a single criminal episode. See Arredondo v. State, 270 S.W.3d 676
(Tex.App.-Eastland 2008, no pet.) (Holding proof of numerous crimes at a party
alone was not sufficient to demonstrate the crimes were more than a one-time event
or episode); Ross v. State, 9 S.W.3d 878 (Tex.App.-Austin 2000, pet. ref d)
(Holding evidence of a series of assaults alone was not sufficient to show an intent
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to engage in a continuing course of criminal activity beyond a single criminal
episode); Munoz v. State, 29 S.W.3d 205 (Tex.App.-Amarillo 2000, no pet.).
(Holding proof of multiple criminal violations alone was not sufficient to show that
group's criminal activity would endure beyond achievement of single goal).
To satisfy the continuity element as set forth in Nguyen, the State must
offer evidence to prove the Defendant intended to participate in a continuing course
of criminal activity. E.g., Ross v State, 9 S.W.3d 878, 882 (Tex.App..-Austin 2000,
pet. ref d). The combination's members must be more than temporarily organized
to engage in a single criminal episode. See Munoz v. State, 29 S.W.3d 205, 208-09
(Tex.App.-Amarillo 2000, no pet.). There must be proof of an intent to participate
in a criminal combination that extends beyond a single criminal episode, ad hoc
effort, or goal, regardless of whether multiple laws were broken within the confines
of that episode or effort. See Arredondo v. State, 270 S.W.3d 676, 682-83
(Tex.App.-Eastland 2008, no pet.). Evidence of multiple criminal violations alone
does not permit the inference that the members of the group intended to continue
working together beyond the completion of an episode or achievement of a goal.
See Munoz v. State, 29 S.W.3d 205, 210 (Tex.App.-Amarillo 2000, no pet.). The
State must offer evidence that allows a jury to infer that the group intended to
continue engaging in illegality over a period of time Munoz v. State, 29 S.W.3d
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205, 210 (Tex.App.-Amarillo 2000, no pet.).
Furthermore, Appellee failed to evidence that Appellant intended to
participate in a continuing course of criminal activity. Appellee failed to evidence
the combination's members were more than temporarily organized to engage in a
single criminal episode. Appellee failed to evidence an intent to participate in a
criminal combination that extends beyond a single criminal episode, ad hoc effort,
or goal, despite the multiple laws that were broken within the confines of that
episode or effort. Appellee failed to introduce evidence that allowed the Jury to
infer that the group intended to continue engaging in illegality over a period of
time.
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PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays the Appellate
Court find the evidence is legally insufficient to support a conviction for engaging
in Organized Criminal Activity and reverse Appellant's conviction on Engaged in
Organized Criminal Activity and render a judgment acquitting him of Engaged in
Organized Criminal Activity.
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CERTIFICATE OF COMPLIANCE
I, Colin D. McFall, Attorney of Record for the above styled Appellant,
pursuant to Rule 9.4(0(3), Texas Rules of Appellate Procedure, hereby certify the
number of words within Appellant's Brief at three thousand, one hundred, thirty
two (3,132).
RESPECTFULLY SUBMITTED,
513 North Church Street
Palestine, Texas 75801-2962
COLIN D. TFALL Telephone: 903-723-1923
Attorney at Law Facsimile: 903-723-0269
Texas Bar Number: 24027498 Email: cmcfall@mcfall-law-office.corn
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CERTIFICATE OF SERVICE
I, Colin D. McFall, Attorney of Record for the above styled Appellant,
hereby certify service of a true and correct copy of the above and foregoing
document upon Anderson County Assistant Criminal District Attorney, Scott
Holden, at sholden@co.anderson.tx.us, by email transmission, on the 29th day of
September 2015.
RESPECTFULLY SUBMITTED,
513 North Church Street
Palestine, Texas 75801-2962
COLIN D. TALL Telephone: 903-723-1923
Attorney at Law Facsimile: 903-723-0269
Texas Bar Number: 24027498 Email: cmcfall@mcfall-law-office.com
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