ACCEPTED 03-15-00116-CR 6932118 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/15/2015 1:44:11 PM JEFFREY D. KYLE CLERK NO. 03-15-00116CR
IN THE FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS THIRD COURT OF APPEALS 9/16/2015 11:01:11 AM JEFFREY D. KYLE Clerk AUSTIN, TEXAS
CHRISTOPHER QUINN RIVERA, Appellant
VS.
THE STATE OF TEXAS, Appellee
APPEAL FROM
THE 428TH JUDICIAL DISTRICT COURT
HAYS COUNTY, TEXAS
TRIAL COURT CAUSE NO. CR14-0448
STATE'S BRIEF
John David Couch Asst. Criminal District Attorney 712 S. Stagecoach Trail, Suite 2057 San Marcos, TX 78666 Ph: (512) 393-7600 /Fax: (512) 393-7619 State Bar No.24048407 john.couch@co.hays.tx.us Attorney for the State of Texas NAMES OF PARTIES
Appellee: State of Texas
Attorneys for the State: Wes Mau, Hays County District Attorney At trial: John Couch, Assistant District Attorney On appeal: John Couch Asst. Criminal District Attorney 712 S. Stagecoach Trail, Suite 2057 San Marcos, TX 78666 State Bar No. 24048407 Attorney for the State of Texas
Appellant: Christopher Quinn Rivera
Attorney for Appellant: At trial: Erick Bovik Bovik & Meredith, P.C. PO Box 150129 Austin, TX 78715 State Bar No. 00792366 Atttoraey for Defense
On appeal: Rickey D. Jones PO Box 142416 Austin, TX 78714 Ph. (210) 710-7062/Fax (866) 589-0541 State Bar No. 00787791 Attorney for Appellant
11 TABLE OF CONTENTS
NAMES OF PARTIES ii TABLE OF CONTENTS iii INDEX OF AUTHORITIES iv STATEMENT OF THE CASE 2 STATEMENT REGARDING ORAL ARGUMENT 2 ISSUES PRESENTED 2 STATEMENT OF FACTS 3 SUMMARY OF THE ARGUMENT 3 ARGUMENT 3
STATE'S RESPONSE TO RIVERA'S SOLE POINT OF ERROR CONTRARY TO RIVERA'S ARGUMENT, THE EVIDENCE IS SUFFICIENT FOR A RATIONAL TRIER OF FACT TO HAVE FOUND THE ESSENTIAL ELEMENTS BEYOND A REASONABLE DOUBT.
CONCLUSION AND PRAYER 14 CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P., RULE 9.4 15 CERTIFICATE OF SERVICE 16
111 INDEX OF AUTHORITIES
FEDERAL CASES
Jackson v. Virginia, 443 U.S. 307 (1979) 3
STATE CASES
Brooks V. State, 323 S.W.3d 893 (Tex. Grim. App. 2010) 3
Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) 4
Lopez V. State, 03-11-00086-CR, 2013 WL 4487555 (Tex. App.^—^Austin Aug. 15, 2013, no. pet. h.) 4
Margraves v. State, 34 S.W.3d 912 (Tex. Crim. App. 2000) 4
Watson V. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) 4
STATUTES
Tex. Penal Code § 36.06 5
Tex. R. App. P. Rule 38.2 2
Tex. R. App. P. Rule 9.4 15
IV NO. 03-15-00116CR
IN THE
THIRD COURT OF APPEALS
AUSTIN, TEXAS
TRIAL COURT CAUSE NO. CRl4-0448
TO THE HONORABLE JUSTICE OF THE COURT OF APPEALS:
COMES NOW the State of Texas, by and through her Assistant District
Attorney, John Couch, and files this Brief in Opposition to Appellant's Brief
Page 1 pursuant to Texas Rules of Appellate Procedure. Rule 38.2 and would show the
Court the following:
STATEMENT OF THE CASE
The State tried Christopher Quinn Rivera ("Rivera") for the indicted charge of
Retaliation in Cause No. CRl4-0448 in the 428^^ Judicial District of Hays County, Texas on February 2, 2015.^ A jury found Rivera guilty of the charged offense and
the punishment was before the Honorable Judge Bill Henry.^ Judge Henry sentenced
Rivera to six years in the Texas Department of Corrections Institutional Division and
imposed a $500 fine on February 4, 2015.^
Rivera filed his appellate brief July 8, 2015."*
STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
ISSUES PRESENTED
Rivera's issue is whether the evidence presented at trial is sufficient to support
the conviction.
^CR 004 ^ CR 054 ^ CR 055 Third Court ofAppeals website, accessed August 21,2015 http://www.search.txcourts.gov/Case.aspx?cn=03-15-00116-CR&coa=coa03
Page 2 STATEMENT OF FACTS
The State does not object to Rivera's statement of facts; however, pertinent
facts have been supplemented in the analysis section of the State's brief
SUMMARY OF THE ARGUMENT
Sufficient evidence was presented such that a rational trier of fact could have
found that Rivera sent text messages threatening to hurt Shannon Pitcher after she
had called police to report his criminal mischief
ARGUMENT
STATE'S RESPONSE TO RIVERA'S SOLE POINT OF ERROR CONTRARY TO RIVERA'S ARGUMENT, THE EVIDENCE IS SUFFICIENT FOR A RATIONAL TRIER OF FACT TO HAVE FOUND THE ESSENTIAL ELEMENTS BEYOND A REASONABLE DOUBT.
Sufficiency of Evidence Standard of Review
Due process requires the State to prove beyond a reasonable doubt every
element of the crime charged.^ In Texas, the Jackson standard is the only standard 1
applied when courts are reviewing sufficiency of evidence claims.^ Under the
Jackson standard appellate courts:
(1) view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, and
^Jackson v. Virginia, 443 U.S. 307, 316 (1979). ^See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Page 3 (2) assume that the jury resolved conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts7
The appellate court's "role on appeal is restricted to guarding against the rare
occurrence when a factfinder does not act rationally[;]. . . [it] will uphold the verdict
unless a rational factfinder must have had reasonable doubt as to any essential
element."^ There must be an objective basis in the record in order to saythat the great
weight and preponderance of the evidence contradicts the jury's verdict.® Because the
jury is the sole judge of a witness's credibility and the weight to be given the
testimony, it may choose to believe some testimony and disbelieve othertestimony.
Where testimony at trial definitively favors or contradicts the jury's verdict, the jury's
credibility determination is paramount." Therefore, a decision is not manifestly
unjust solely because the court of appeals would have resolved the conflicting
evidence in a different way.'^
Retaliation is defined, in relevant part, by Texas Penal Code Section 36.06 as
follows:
' Lopez V. State, 03-11-00086-CR, 2013 WL 4487555 (Tex. App.—^Austin Aug. 15, 2013, no. pet. h.)(citing Laster v. State, 275 S.W.3d 512, 522 (Tex. Crim. App. 2009) (stating that under the Jackson standard, "it is thejury's duty 'to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimatefacts"). ^Za5ter,275S.W.3dat522. ®Watson V. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Margraves v. State, 34 S.W.3d912, 919 (Tex. Crim. App. 2000). " Watson, 204 S.W.3d at 417. '"•Id.
Page 4 (a)A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act:
(1) In retaliation for or on account of the service or status of another as a:
(B) person who has reported or who the actor knows intends to report the occurrence of a crime...
RetaHation is a felony of the third degree.
ANALYSIS OF RIVERA'S POINT OF ERROR
In his only raised issue, Appellant claims the evidence is legally insufficient to
support his conviction. Appellant's claim fails because the Appellant's text messages
and his own admissions make clear that he threatened Ms. Pitcher for reporting his
criminal mischiefto the police. The following Reporter's Record excerpts highlight
the evidence the jury used to find Appellant guilty of Retaliation as alleged in the
indictment.
Rivera stipulated to the underlying offense of Criminal Mischief." Rivera
retaliated against Ms. Pitcher for calling police about the Criminal Mischief:
Q: (MR. COUCH) Okay. So on or about - well, let's say February 26^ (2014),
did you ever call the police for any reason?
A: (MS. PITCHER) Yes.
Q: Okay. And what was that for?
Tex. Penal Code § 36.06. State's Exhibit No. 2.
Page 5 A: For - basically, Chris came over to my house and damaged my friend's
vehicle and my own vehicle and was trying to get in my house.
Q: Okay. Did you see him there that night?
A: Yes.
Q: Okay. What was he doing when you saw him?
A: Banging on the windows, yelling, cussing.
Q: Is that when you called the police?
A: Yes.''
Later, Detective Wray was assigned the case and contacted the Defendant
on March 3,2014:
Q: (MS. STALBAUM) Okay. Did you try to contact Christopher Rivera?
A: (DETECTIVE WRAY) I did.
Q: What date and time?
A: Let me see. It looks like on the same date within 45 minutes. It says on the 3'"'
at 1048 hours I called and started trying to leave messages on Chris Rivera's
phone.
Q: Did you leave a message for him?
A: It says I left a message, which - it all depends on the phone. Like with any f
case, I'd call and leave messages. If I can't get a - if they don't return my call
''RRVo13:59: 8-20.
Page 6 or - it depends on the phone. Sometimes I call your phone and it says "(830)
210-9451 is not available." And so all I know is it's a number and it's kind of
hard to make sure that that's attached to somebody, so I'll then try to e-mail
them. Depending on the case, I may even try to go to their house and identify
them.
Q: What number did you call when you tried to contact him?
A: The number that I had, which was given to the victim is (801) 903-2169.'^
A: ...1 sent some e-mails to him, also.
Q: Okay. What date and time did you send an email?
A: It looks like on the same day (March 3'^'^) at 1139 hours I sent an e-mail asking him to call in or can we meet because I wanted to talk with him about the case.
Q: And what e-mail address was that?
A: I don't have those e-mails in front of me, they would have been in the case file,
but it's something streamliner. I deal with so many of those. But I don't have
that part of the - the sheet doesn't print out on this thing I have, (indicating).
Q: Does streamliner210@gmail.com sound correct to you?
A: That sounds like an e-mail I used.
Q: Did you get a response?
^^RRVol 3 49:21 -50:12.
Page? A: I did not get a response from that either.
Defendant admitted sending text messages to Shannon Pitcher:
Q: (MR. COUCH) I mean, when you called her - basically, you called her a
whore -
A: (DEFENDANT) Yes.
Q: -in one of these, correct?
A: Uh - huh. On numerous times.
Q: Okay. You're trying to get a reaction, right?
A: I wasjust - you know, I was upset. And, yes, basically, I wasjust trjdng to get
a reaction out of her. I was just saying things, you know, just trying to get
some kind of reaction, which I never got, so I just basically just cut it out and
went on about my business andjust never contacted her anymore after that.
Q: All right. When you said - you referred to her as just another Sorry, lying-ass
bitch -
A: Uh-huh.
Q: ~ that was at 4:09 in the morning. What was that one about?
A: Because that's -1 was just merely statingmy opinion about her at that time. r
Q: Okay. But that wasn't the last one you-
A: After what I found out -
'^RRVolS 50:21-51:11.
Page 8 Q: ~ had sent.
Court Reporter: Hold on. Hold on.
Q: That was not the last text message you sent, right?
A: May not have been. If there's more, there's more from that day. I know I sent
a lot of them. I know I sent a lot of them because I was just going off and just
going off and I got it all out. Once it was all out, I felt better -
Q: Okay.
A: ~ and I left it alone.
Q: Well, did it- so did it take you six days and I don't know how many pages -
several pages of text messages to get it all out?
A: Well, like I said onthe r\ thephone I was sending those text messages from, I
couldn't find it anymore, so I'm assuming it was stolen. And so that's - you
know, whoever else got my phone probably read everything I sent and just
went ahead and liad a field day with it, obviously.^®
After Detective Wray sent his email at 1139 hours of March 3, 2014,
Defendant referenced the Detective's e-mail and threatened Shannon Pitcher in
text messages sent only a few minutes after the Detective's e-mail:
^^RRVol3 159:1 -160:14.
Page 9 Q: (MR. COUCH) All right. So it goes here, (indicating): "Since you chose not
to answer or comment. And you involved the cops and I got some bitch-ass
detective calling me." What does "LMFAO" stand for?
A: (MS. PITCHER) "Laughing my fucking ass off."
Q: Okay. All right. So ifwe go up, that was on March 3'^'^, right? A: Yes.
Q: Okay. So on March 3"^'^ 11:41 a.m. there's another one that says: "Yo, Bitch, so let me get this straight. Your ex can fucking break all your shit and steal
from you, no cops. Your friend's dude can break into your vehicle, no cops.
Punch bitch you had there are both not safe. Expect more visits from me. You
will hurt." Did you take that as a threat?
Q: And then 11:45 it talks about being contacted by the detective.
Q: So at that point you had already reported this, correct?
Q: Okay. So that message from Exhibit l-O carries over onto the top of State's
Exhibit 1-P. We still have a couple left, but this is the one that we saw - this is
the message that we referenced to in 1-0 about the detective contacting the
defendant, right, (indicating)?
Page 10 A: Yes.
Q: Okay. So that says: "I'm not a bitch Hke your ex. I can get the job done and
now you're gonna find out the kind of pain that I bring. And you will not be
ready, will be caught off guard."
All right. And then that at 11:50: "Most important, you will lose. IDGAF."
What is that?
A: I think that's, "I don't give a fuck."
Defendant admits to using his Sister's phone and other phones during the
time the retaliatory text messages were sent. These devices gave him access to
his email address and password so he could have sent the retaliatory text
messages.
Q: (MR. COUCH) Okay. So were you saying that the phone was stolen March
1^ right?
Q: Okay. So March 2"^", March 3'^'^, when did you start using her (Sister's) phone? A: Yeah. It was probablythat same day or the next day. Because I would log her
out and I'd log me in and upload stuff and then log back out, because it was
her phone, it wasn't mine, I couldn't carry it around with me.^^
^^RRVol3 173:23-174:6.
Page 11 Q: Well, so, when did you log in? I mean, what were you logging in? I mean, I
don't understand what you mean. You said you were logging her out.
Logging her out of what?
A: Facebook.
A: Facebook. It's standard on every Android phone that you get. You don't have
to download the app, it's already preloaded on there for you.
Q: So you were using the Internet after you lost the phone, correct?
A: Yeah, Facebook, I was. Yeah, because I made --
Q: So what you - -
THE COURT: Please do not speak over one another.
Question, Counsel.
Q: (Mr. Couch) Don't you need Internet for Facebook?
Q: Okay, so you would have had Internet during this period, correct?
A: Yes.'°
Rivera contradicts himself and admits he had access to several phones
and internet access so he could have sent the threatening text messages.
Rivera's testimony is not credible.
^°RRVol 3 174:14- 175:8.
Page 12 Q: (MR. COUCH) Okay. So the only time you had Internet access was with your
sister's phone?
A: (DEFENDANT) Yes.'^
Q: Okay. So you had access to several phones and you sent texts from several
different phones, as well, correct?
A: Yes. Ms. Pitcher could also tell you that I had two phones every time I went to
her house: one of them was activated, the other one wasn't. The other one was
the one that was the 801 number that would use the Wi-Fi.^^
A: Yes. It's not really a big hassle for me to borrow one of my friend's phones
that I happen to be hanging around with and just say, like, "Hey, can I use your
phone real quick, so I can check my Facebook?"^^
As the highlighted record makes clear, the State proved all of the elements of
Retaliation to support Appellant's conviction. The Defendant stipulated to the
underlying offense of criminal mischief that caused Ms. Pitcher to call police in the
first place. The Defendant knew Ms. Pitcher had contacted the police because he
sent her text messages referencing the email sent by Detective Wray. Defendant then
threatened Ms. Pitcher by stating, "You will hurt" in another text message.
^^RRVol3 176: 16-18. 22 RRVol 3 191:22-191:2. ^^RRVolB 190:2-5.
Page 13 CONCLUSION AND PRAYER
Ms. Pitcher's testimony, as well as the Appellant's own admissions and his
text messages, make clear that Appellant retaliated against Ms. Pitcher for calling the
police to report his criminal mischief. Appellant's threatening text messages were
sent to Ms. Pitcher within hours of her calling police. The text messages' plain
language references the pending investigation giving the Appellant knowledge that
Ms. Pitcher reported the criminal mischief to police. Because Ms. Pitcher reported
the criminal mischief to police, the Appellant threatened that she would hurt
satisfying all elements of the offeiise.
Wherefore, premises considered, the State respectfully requests the Court
overrule Rivera's appeal and affirm the trial court's judgment of Guilty in Cause No.
CR14-0448, including affirmation of the punishment, and grant the State all relief to
which it is justly entitled.
Page 14 Respectfully submitted,
By:
JohrvCouch Asst. Criminal District Attorney 712 S. Stagecoach Trail, Suite 2057 San Marcos, TX 78666 Ph. (512) 393-7600 Fax (512)393-7619 State Bar No.24048407 john.couch@co.hays.tx.us Attorney for the State of Texas
CERTIFICATE OF COMPLIANCE WITH TEX. R. APR P.. RULE 9.4
I certifythat this brief contains 2,326 words, exclusive of the caption, names of
parties and counsel, table of contents, index of authorities, statement of the case,
statement regarding oral argument, issues presented, statement of facts, summary of
the argument, signature, certificate of compliance, and certificate of service.
John Couch Asst. Criminal District Attorney
Page 15 CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing brief has been e-delivered to:
Rickey D. Jones PO Box 142416 Austin, TX 78714 Ph. (210) 710-7062/Fax (866) 589-0541 State Bar No. 00787791 Attorney for Appellant
on this the day of September, 2015.
Johitouch Asst. Criminal District Attorney
Page 16