ACCEPTED
12-15-00018-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
12/14/2015 3:53:50 PM
Pam Estes
CLERK
ORAL ARGUMENT NOT REQUESTED
CAUSE NO. NO. 12-15-00018-CR FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE 12/14/2015 3:53:50 PM
COURT OF APPEALS PAM ESTES
TWELFTH DISTRICT OF TEXAS Clerk
TYLER, TEXAS
__________________________________________________________________
TIMOTHY TANNER VIATOR,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
__________________________________________________________________
Appeal in Cause No. 31699
On Appeal from the Third Judicial District Court
of Anderson County, Texas
__________________________________________________________________
BRIEF FOR STATE
__________________________________________________________________
M. Brian Evans
Asst. Criminal District Attorney
Anderson County, Texas
Anderson County Courthouse
Palestine, Texas 75801
Texas Bar No. #24082972
903/723-7400
i
IDENTITY OF PARTIES AND COUNSEL
JUDGE PRESIDING:
THE HONORABLE DEBORAH OAKES EVANS
DEFENDANT/APPELLANT:
TIMOTHY TANNER VIATOR
FOR THE DEFENDANT:
APPELLATE ATTORNEY
COLIN D. MCFALL
513 NORTH CHURCH ST
PALESTINE, TEXAS 75801
TRIAL COUNSEL
COLIN MCFALL
513 NORTH CHURCH ST
PALESTINE, TX 75801
FOR THE STATE:
TRIAL COUNSELS
STANLEY SOKOLOWSKI
1ST ASSISTANT CRIMINAL DISTRICT ATTORNEY
ANDERSON COUNTY COURTHOUSE
500 NORTH CHURCH ST
PALESTINE, TX 75801
(903) 723-7400
ON APPEAL
M. BRIAN EVANS
ASSISTANT CRIMINAL DISTRICT ATTORNEY
ANDERSON COUNTY COURTHOUSE
500 NORTH CHURCH ST
PALESTINE, TX 75801
(903) 723-7400
ii
TABLE OF CONTENTS
PAGE
Identity of Parties and Counsel . . . . . . . ii
Table of Contents . . . . . . . . . iii
Index of Authorities . . . . . . . . iv
Statement of the Case . . . . . . . . 1
Issues Presented . . . . . . . . . 1
Statement of Facts . . . . . . . . . 1
Summary of Argument . . . . . . . . 2
State’s Reply to Appellant’s Point of Error 1 . . . . 2-6
Prayer . . . . . . . . . . 7
Certificate of Service . . . . . . . . 8
Certificate of Word Count . . . . . . . 8
iii
INDEX OF AUTHORITIES
Cases Page
Acosta v. State, 429 S.W.3d 621 (Tex.Crim.App.2014) . . . 2,3
Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App.2010) . . . 2
Brown v. State, 270 S.W.3d 564 (Tex.Crim.App.2009) . . . 3
Chambers v. State, 805 S.W.2d 459 (Tex. Crim. App. 1991) . . 4
Clayton v. State, 235 S.W.3d 772 (Tex.Crim.App.2007) . . . 3,4
Dewberry v. State, 4 S.W.3d 735 (Tex.Crim.App.1999) . . . 3
Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App.2007) . . . 4
Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . 2,3,4
Martinez v. State, 178 S.W.3d 806 (Tex.Crim.App. 2005) . . . 4
Nguyen v. State, 1 S.W.3d 694 (Tex.Crim.App. 1999) . . . 5
Wirth v. State, 361 S.W.3d 694 (Tex.Crim.App.2013) . . . 2
Statutes
Tex. Code Crim. Proc. Ann. Art. 38.04 (Vernon Supp. 2009) . . 3
Tex. Penal Code Ann. § 71.02 (Vernon Supp. 2009) . . . 5
iv
STATEMENT OF THE CASE
The Statement of the case is as stated in Appellant’s brief pages 10 -
12. The Reporter’s Record will be referred to as “RR” unless otherwise
noted. The Clerk’s Record will be referred to as “CR”. Appellant’s Brief
will be referred to as “AB” unless otherwise noted. Appellee is referred to
as “State”.
ISSUES PRESENTED
POINT OF ERROR 1:
Appellant contends the evidence is legally insufficient to support a
conviction for Engaging in Organized Criminal Activity.
STATEMENT OF FACTS
The Statement of Facts are as stated in Appellant’s brief.
-1-
SUMMARY OF ARGUMENT
POINT OF ERROR 1 RESTATED:
Appellant contends the evidence is legally insufficient to support a
conviction for Engaging in Organized Criminal Activity.
ARGUMENT
The evidence is legally sufficient to support a conviction for Engaging
in Organized Criminal Activity.
STATE’S REPLY TO APPELLANT’S POINT OF ERROR:
The Court of Criminal Appeals held that there is “no meaningful
distinction between the Jackson v. Virginia legal-sufficiency standard and
the Clewis factual-sufficiency standard” and that the Jackson v. Virginia
standard is the “only standard that a reviewing court should apply in
determining whether the evidence is sufficient to support each element of a
criminal offense that the State is required to prove beyond a reasonable
doubt. All other cases to the contrary, including Clewis, are overruled.”
Brooks v. State, 323 SW3d 893, 894 (Tex.Crim.App. 2010); See also Writh
v. State, 361 S.W.3d 694 (Tex.Crim.App. 2013) reaffirming the reversal of
Clewis and it’s progeny; and Acosta v. State, 429 S.W.3d 621, 624-5, (Tex.
Crim. App. 2014).
-2-
In reviewing the sufficiency of the evidence to support a conviction,
appellate courts view all of the evidence in the light most favorable to the
prosecution in order to determine whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex.Crim.App.2007); Acosta 429 S.W.3d at 624-5. This standard
gives full play to the responsibility of the trier of fact to resolve conflicts in
the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235
S.W.3d at 778. The trier of fact is the sole judge of the weight and credibility
of the evidence. See Tex.Code Crim. Proc. Ann. art. 38.04 (Vernon 2013);
Brown v. State, 270 S.W.3d 564, 568 (Tex.Crim.App.2008), cert. denied,
556 U.S. 1211 (2009), vacated on other grounds by Ex parte Brown, 2014
Tex. Crim. App. Unpub. LEXIS 984 (2014).
Thus, reviewing courts may not re-evaluate the weight and credibility
of the evidence and substitute their judgment for that of the fact finder.
Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied,
529 U.S. 1131 (2000). Instead, appellate courts “determine whether the
necessary inferences are reasonable based upon the combined and
-3-
cumulative force of all the evidence when viewed in the light most favorable
to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.Crim.App.2007).
Reviewing courts must presume that the fact finder resolved any conflicting
inferences in favor of the prosecution and defer to that resolution. Jackson,
443 U.S. at 326; Clayton, 235 S.W.3d at 778. It is well established that the
fact finder is entitled to judge the credibility of witnesses and can choose to
believe all, some, or none of the testimony presented by the parties.
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
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, 214 S.W.3d at 13.
Appellant asserts on appeal that the evidence is insufficient to support
his conviction for one count Engaging in Organized Criminal Activity.
A person commits engaging in organized criminal activity if, with the
intent to establish, maintain, or participate in a combination or in the profits
of a combination, the person commits or conspires to commit one or more of
-4-
the enumerated offenses, including forgery. Tex. Penal Code Ann. §
71.02(a)(1). 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, 696-97 (Tex.Crim.App. 1999).
Count Five alleged Appellant “did then and there commit the above
offenses (four counts of forgery) with the intent to establish, maintain, or
participate in a combination or in the profits of a combination who
collaborated in carrying on said criminal activity.” (CR, p. 7). The
additional Counts alleged forgery charges against Appellant. (CR, pp. 5-7).
During the trial, the jury heard testimony that four individuals, Troy
Mouton, Colby Mitchell, Joshua Breaux, and the Appellant were on all a
road trip together. (RR, Vol. 4, p. 10). There was testimony that these
individuals were passing counterfeit money to various businesses during this
road trip. (RR, Vol. 4, p. 12). In fact, the Appellant was using a counterfeit
fifty dollar bill when officers stopped the vehicle at J.J.’s 107. (RR, Vol. 3,
p. 9). The Appellant fled the scene but was eventually taken into custody.
(RR, Vol. 3, p. 12). Appellant was found in possession of five counterfeit
fifty dollar bills when he was arrested. (RR, Vol. 3, p. 14).
-5-
The jury, as finder of fact, could choose to believe the testimony and
convicted the Appellant guilty of four counts of Forgery and a single count
of Engaging in Organized Criminal Activity. (CR, pp. 71-72). The
testimony explained that the individuals were on a road trip and
continuously passed counterfeit money to different businesses. This
continuous criminal activity is differentiated from the cases asserted by the
Appellant where multiple charges stemmed from one incident. The
testimony in the present case established that the four individuals were
engaged in continuing course of criminal activity, specifically forgery,
during their road trip. Therefore, the jury found the Appellant guilty on all
counts based on this testimony. As such, there is legally sufficient evidence
to support Appellant’s conviction on the count of Engaging in Organized
Criminal Activity and his appeal should be denied.
-6-
PRAYER
WHEREFORE the Appellee prays that the Court upon consideration
hereof affirm the decision of the Trial Court and overrule Appellant’s Point
of Error.
Respectfully submitted by,
/s/ M. Brian Evans
M. BRIAN EVANS
Asst. Criminal District Attorney
Anderson County, Texas
Anderson County Courthouse
500 N. Church Street, RM 38
Palestine, Texas 75801
Texas Bar No. #24082972
(903)723-7400
-7-
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing Brief for the State
has been delivered via fax/email to: COLIN MCFALL on this the 14th day
of December, 2015, in accordance with the provisions of the Texas Rules of
Criminal and Appellate Procedure.
/s/ M. Brian Evans
M. BRIAN EVANS, ASSISTANT CRIMINAL
DISTRICT ATTORNEY
CERTIFICATE OF WORD COUNT
I also certify that the entire word count of the State’s reply brief is 1644
words.
/s/ M. Brian Evans
M. BRIAN EVANS, ASSISTANT CRIMINAL
DISTRICT ATTORNEY
-8-