Timothy Tanner Viator v. State
Opinion
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.
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).
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
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
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).
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