                               673-/5
                             IN     THE

                 COURT OF CRIMINAL APPEALS OF TEXAS              ORIGINAL


                   JAMARIOS LEGHRISTOPHER CANTON,
                                                                 FILED IN
                                                         COURT OF CRIMINAL APPEALS
                                  -vs-
                                                                    03 2015
                         THE STATE OF TEXAS,                       . t _. ,
                                                             Abel Acosta, Cierk



              ON PETITION SEEKING DISCRETIONARY REVIEW
           OF COURT OF APPEALS NO. 12-12-00118-CR FROM THE
      COURT OF APPEALS FOR THE TWELFTH COURT OF APPEALS DISTRICT
              AFFIRMING THE CONVICTION AND SENTENCE IN
                TRIAL COURT CASE NO. F1017409 OUT OF
   THE 145th JUDICIAL DISTRICT COURT OF NACOGDOCHES COUNTY]


                  PETITION FOR DISCRETIONARY REVIEW




                                         JAMARIOS L. CANTON, pro se-
                                         Robertson Unit, TDCJ No. 1771951
                                         12071 FM 3522
                                         Abilene, Texas     79601

                                         Appellant-Petitioner




5CAM&
 (CCA>




  A
                              TABLE OF CONTENTS


SECTION                                                                   PAGE

INDEX OF AUTHORITIES                                                        ii

STATEMENT REGARDING ORAL ARGUMENT                                           iv

STATEMENT OF THE CASE.,                                                      v

STATEMENT OF PROCEDURAL HISTORY                                              v

GROUNDS FOR REVIEW                                                           1

ARGUMENT AND AUTHORITIES                                                     2

    THE COURT OF APPEALS APPLIED THE WRONG STANDARD OF REVIEW ••             2

    THE COURT OF CRIMINAL APPEALS' DECISION IN BROOKS v. STATE IS WRONG      2

CONCLUSION                                                                   6

PRAYER FOR RELIEF                                                            &

VERIFICATION BY UNSWORN DECLARATIONS-                                        7

CERTIFICATE OF SERVICE                                        *              7
APPENDIX                                          •                          8
    OPINION OF THE TWELFTH COURT OF APPEALS — TYLER, TEXAS
    Mot Reported in S.W.3d,        WL         ,       Tex.App. LEXIS
    JUDGMENT OF THE TWELFTH COURT OF APPEALS — December 20, 2012
                            INDEX OF AUTHORITIES

FEDERAL CASES                                                           £M£

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979)                passim
Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211 (1982)          ._       passim
United States v. Schorr, 462 F.2d 953 (5th Cir. 1972)                      4
Winship; In re, 397 U.S. 358, 90 S.Ct. 1068 (1970)                          2

STATE CASES                                                             PAGE
Alexander v. State, 740 S.W.2d 749 (Tex.Crim.App. 1987)                     3
Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010)                   passim
Cardenas v. State, 30 .S.W.3d 384 (Tex.Crim.App. 2000)                      3
Citizens National Bank v. Allen Rae Investments, Inc.,
     142 S.W.3d 459 (Tex.App.- Fort Worth 2004)                             4
Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996)                   passim
Conner v. State, 67 S.W.3d 192 ..(Tex.Crim.App. 2001)                       4
Dewberry v. State, 4 S.W.3d 735 (Tex.Crim.App. 1999)                        4
Fisher v. State, 851 S.W.2d 298 (Tex.Crim.App. 1993)                     2,3
Garcia v. State^ 919 S.W.2d 370 (Tex.Crim.App. 1994)                        4
Grant v. State. 989 S.W.2d 428 (Tex.App.-Houston [14th Dist.]%L999)       4-5
Green v. State, 840 S.W.2d 394 (Tex.Crim.App. 1992)                         4
Guevara v. State, 152 S..U.3 45 (Tex.Crim.App. 2004)                      3, 4
Hall v. State, 86 S.W.3 235 (Tex.App.-Austin 2002)                        4-5
Hammerlv Oaks, Inc. v. Edwards, 958 S.W.2d 387 (Tex. 1997)         ,        4
J.M.C.D.; In re, 190 S.W.3d 779 (Tex.App.-El Paso 2006)                   4-5
Johnson v. State, 871 S.W.2d 183 (Tex.Crim.App. 1993)        ..             4
 Jones v. State, 944 S.W.2d 642 (Tex.Crim.App. 1996)                        3
 King v. State, 29 S.W.3d 556 (Tex.Crim.App. 2000)                              3
 Lee v. State, 152 Tex.Crim. 401, 214 S.W.2d 619 (1948)                         4
 Louis v. State, 159 S.W.3d 236 (Tex.App.-Beaumont 2005)                   4-5

                                        -li-
STATE CASES (continued)                                         PAGE

Marathon Corp. v. Pitzner, 106 S.W.3d 724 (Tex. 2003)              4
Margraves v. State, 34 S.W.3d 912 (Tex.Crim.App. 2000)             3
Matson v. State, 819 S.W.2d 839 (Tex.Crim.App. 1991)               4
Moreno v. State, 755 S.W.2d 866 (Tex.Crim.App. 1988)               3
Narvaiz v. State, 840 S.W*.2d 415 (Tex.Crim.App. 1992)             3
Roberson v. State, 16 S.W.3d 156 (Tex.App.-Austin 2000)            3
Rodriguez v. State, 939 S.W.2d 211 (Tex.App.-Austin 1997)          3
Sanders v. State, 119 S.W.3d 818 (Tex.Crim.App. 2003)              3
Sharp v. State, 707 S.W.2d 611 (Tex.Crim.App. 1986)                3
Urbano v. State, 837 S.W.2d 115 (Tex.Crim.App. 1992)             4-5
Ward v. State, 143 S.W.3d 271 (Tex.App.- Waco 2004)                3
Ware v. State, 62 S.W.3d 344 (Tex.App.-Fort Worth 2001)            4
Williams v. State, 692 S.W.2d 671 (Tex.Crim.App. 1984)             3
Williamson v. State, 156 Tex.Crim. 520, 244 S.W.2d 202 (1951)      4

CONSTITUTION. STATUTES, CODES, AND RULES                        PAGE

U.S. CONST., amend. XIV....                                        3
TEXAS PENAL CODE §2.01               •                            2~3




                                      -in-
                     STATEMENT REGARDING ORAL ARGUMENT

      Jamarios LeChristopher Canton, Petitioner pro se in this case, believes
that oral argument will be absolutely necessary for being able to fully explain
the underlying reasons that this Court's Brooks v. State opinion and decision
is   patently incorrect and flawed where it was contrary to the Supreme Court of
the United    States'   holding and decision handed down in Tibbs v. Florida, 457
U.S. 31, 102 S.Ct. 2211 (1982).    This issue is central and crucial to the Court
of Appeals' erroneous reading and application of Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781 (1979), and this Court's intended purposes behind its Clewis
v. State decision.

       In the event that this Court determines that oral argument is necessary,

Petitioner respectfully moves the Court to invite the attorney who briefed the
appeal in tha court below, to participate on Petitioner's behalf in presenting
oral argument.



                                                   JAMARIOS L.    CANTON




                                        -IV-
                            STATEMENT OF THE CASE

      Petitioner   Jamarios Canton ("Canton") was indicted on February 19, 2010,
for one count of aggravated assault with a deadly weapon in Cause No. F1017409
in   the 145th Judicial District Court of Nacogdoches County, Texas.   Contained

within the indictment was      an enhancement paragraph alleging that Canton had
previously been convicted of attempted robbery in 1995. The case was called
for trial on February 27, 2012, at which time both sides were present and_an-
nounced ready for trial, and a jury was then selected and empaneled. Trial be
gan on March 5, 2012, and after all of the evidence had been presented, and the
prosecution:, and defense, closed and rested, the jury found Canton guilty the
next day, on March 6, 2012. That same day, the jury heard evidence and argu
ment on punishment. The jury's verdict found the enhancement paragraph "True,"
and sentenced Canton to life imprisonment in the Texas Department of Criminal
Justice, Correctional Institutions Division ("TDCJ").
      The Twelfth Court of Appeals at Tyler, Texas, affirmed the conviction and
sentence, overruling Canton's sole issue he urged on appeal, which was that the
evidence was legally and factually insufficient to support a guilty verdict and
rejected Canton's factually insufficient ground in light of Brooks v. State,
323 S.W.3d 893 (Tex.Crim.App. 2010)(plurality op.)(holding that the legal suf
ficiency standard enunciated in Jackson v. Virginia 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).
                       STATEMENT OP PROCEDURAL HISTORY
        This case was tried in the 145th Judicial District Court of Nacogdoches
 County, Texas, before the Honorable Campbell Cox, II, in which aguilty verdict
 was returned by the jury on March 6, 2012. Following the verdict on guilt, the
 jury sentenced Canton to life imprisonment in the TDCJ.       Canton then perfec-


                                        -v-
ted a timely appeal, submitting his Brief of Appellant on July 9, 2012; there
after, on July 18, 2012, the State filed its Brief of Appellee.      The case was
submitted to the appellate panel on August 23, 2012, with the opinion being de
livered, and the Judgment rendered, on December 20, 2012.
        On January 16, 2013, Canton submitted his First Motion For Extension Of
Time To File Petition For Discretionary Review; and his Motion For Suspension

Of Rule[ 9.3(b) of the Texas Rules of Appellate Procedure].    Both motions were
granted by the Court: Rule 9.3(b) was suspended, and Canton was granted-the ex
tension of time and given up to, and including, Friday, March 22, 2013, to file
this instant petition.      The Certificate of Service attached hereto certifies
that    this petition was deposited into the prison's internal Legal Mail System,
under    the Prison Mailbox Rule, for mailing to the Clerk of the Court of Crimi
nal Appeals, on Friday afternoon, March 22, 2013.




                                        -vi-
                             GROUNDS FOR REVIEW

     As required by the Texas Rules of Appellate Procedure, Canton indicates

the specific rule provisions under which he asks that the Court of Criminal Ap
peals to review the Court of Appeals' decision and judgment, where it:
      A. Conflicts with other opinions of other courts of appeals [Tex.R.App.P.
         Rule 66.3(a)].
      B. Has decided an important question of state and federal law in such a
         way that it conflicts with applicable decisions, of the Court of Crimi
         nal Appeals, and the Supreme Court of the United States [Tex.R.App.P.
         Rule 66.3(c)].
      C. The Court of Appeals' decision had been based upon an erroneous deci
         sion in Brooks v. State, in which the Court of Criminal Appeals had
         incorrectly overruled and abrogated its insufficiency of the evidence
         standard that the Court had enunciated in Clewis v. State, where the
         Clewis.'-. Court had based its two-pronged insufficiency of evidence stan
         dards on (1) Jackson v. Virginia for "legal insufficiency" challenges;
         and on (2) Tibbs v. Florida, for challenges that are directed at the
         weight of the evidence, a standard that over the years following Clew-
         Is and its progeny of cases, had eventually been recharacterized ;as a
         "factual insufficiency" standard, instead of the "weight of evidence"
         standard that had originally been intended by the Clewis Court LTex.R.
         App.P. Rule 66.3(f)].
      Specifically, the Court of Appeals' decision requires review by the Court
of Criminal Appeals for determining—

      1. Whether the Court of Criminal Appeals should revisit Brooks v. State,
         323 S.W.3d 893 (Tex.Crim.App. 2010), for determining if Clewis had or
         iginally mandated that (1) "legal insufficiency" challenges were to be
         reviewed under Jackson v. Virginia; whereas (2), "factual insufficien
         cy" challenges were to be reviewed under Tibbs V. Florida as a chal
         lenge regarding the "weight of the evidence."
      2. Should grounds on, appeal that challenges the evidence's legal and fac
         tual sufficiency, be strictly construed as such, or should they be re
         cognized as grounds challenging the evidence's legal sufficiencyand
         its weight, as required by Tibbs v. Florida?




                                       -1-
                             ARGUMENT AND AUTHORITIES

       In Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996), this Court had
authorized a two-pronged review of evidence utilizing Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781 (1979), when examining the legal sufficiency of the evi
dence, and Tibbs v. Florida, 457 U.S. 31, 102 S.Ct.. 2211 (1982), for review of
the weight of the evidence.        This evidentiary standard of review has served the
State well       for almsot fifteen years.    However, in Brooks v. State, 323 S.W.3d
893,       894-95 (Tex.Crim.App.    2010)(plurality op.), the; Court has now concluded
that the Supreme Court of the United States was incorrect in its Tibbs' deci
sion in which the Supreme Court had "explained the difference between reversals
based on evidentiary sufficiency ... and reversals based on evidentiary weight
(i:.'e,,     factual-sufficiency)...." Brooks v. State, 323 S.W.3d at 899-900,.,n. 14
(citing Tibbs^ 457 U.S. at 38 n.ll, 102 S.Ct. 2211). Tibbs mandated that evi
dentiary sufficiency reviews were to be conducted under Jackson v. Virginia,
and that matters concerning the "weight of the evidence" were to be conducted
under a different standard of review. The long line of the Clewis line of cas
es calls into question the correctness of this Court's Brooks rationale and its
conclusion that now, both prongs of an evidence inquiry — its legal sufficien
cy and its weight — are to be reviewed Only under Jackson v. Virginia, instead
of the two-pronged review utilizing both, Jackson and Tibbs.
      Why did the Supreme Court of the United States determine that the weight
of the evidence was to be reviewed under a different standard that reviews con
cerning the evidence's legal sufficiency? The due Process Clauses of the Texas
and United States constitutions requires that every criminal conviction is_to
be supported by evidence that a rational trier of fact could accept as being
sufficient to prove all of the elements of. the charged offense beyond a reason
able doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068 (1970); Fisher
v. State, 851 S.W.2d 298, 302 (Tex.Crim.App. 1993);;fsea also TEX. PENAL CODE



                                             -2-
ANN. §2.01 (Vernon 2009); Ward v. State, 143 S.W.3d 271, 274 (Tex.App.-Waco__20-
04, pet. ref'd).   Under the Due Process Clauses, the task of a reviewing court
is   to consider all of the evidence in the light most favorable to the verdict,
and determine if any rational trier of fact could have found beyond a reasona
ble doubt, all of the essential elements of the offense. See Jackson v. Vir
ginia, 443 U.S. at 319, 99 S.Ct. 2781; Sanders v. State, 119 S.W.3d 818 (Tex.
Crim.App. 2003); Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex.Crim.App. 2000).
Reviewing courts are not fact-finders, the role of the courts is that of a Due
Process safeguard, ensuring';,; only the rationality of the trier of fact's find
ing of the essential elements of the offense beyond a reasonable doubt.       See
Moreno v. State,   755 S.W.2d 866, 867 (Tex.Crim.App. 1988). "If, based onall
the evidence, a reasonably minded jury must necessarily entertain a reasonable
doubt of the defendant's guilt, due process requires that we reverse and order
a judgment of acquittal." Fisher, 851 S.W.2d at 302 (quoting Narvalz v. State,
 840 S.W.2d 415, 423 (Tex.Crim.App. 1992); see also Guevara v. State, 152 S.W.3d
 45, 49 (Tex.Crim.App. 2004). The sufficiency of the evidence is determined, from
 the cumulative effect of all the evidence; each fact in isolation need not es
 tablish the guilt of the accused. See.Alexander v. State, 740 S.W.2d 749, 758
 ^Tex.Crim.App. 1987); Roberson v. State, 16 S.W.3d 156, 164 (Tex.App.-Austin
 2000, pet. ref'd). In analyzing a challenge to the legal sufficiency of the
 evidence, a reviewing court does not reevaluate, disregard, or weigh the evi
 dence. See King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); Rodriguez
 v. State, 939 S.W.2d 211, 218 (Tex.App.-Austin 1997, no pet.). The jury, as
 *he trier;of fact, is the sole judge of the credibility of the witnesses and of
 the weight to be given the testimony and may accept or reject all or any part
 of a witness' testimony. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.
 App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996); Sharp v.
 State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); Williams v. SUte, 692 S.W.2d
 671, 676 (Tex.Crim.App. 1984). The verdict may not be overturned unless it is


                                        -3-
irrational or unsupported by proof beyond a reasonable doubt.      See Matson v.
State, 819 S.W.2d 839, 846 (Tex.Crim.App. 1991); Ware v. State, 62 S.W.3d 344,
349 (Tex.App.-Fort Worth 2001, pet. ref'd).
      But a review to determine whether a jury accorded the correct and proper
weight to the evidence, in regard to a fact of consequence, is an entirely dif
ferent matter.   This is because in some situations the jurors do not know what
weight is to be given to certain types or classes of evidence); and that is why
the Supreme Court had held that when matters concerning the evidentiary weight
arise (i.e., its factual sufficiency), the appellate court may be drawn into
questions .of reliability and credibility. See Tibbs v. Florida, 457 U.S. at 38
n.ll, 102 S.Ct. 2211. In evaluating all of the evidence, a court must consider
all of it, rightly or wrongly admitted, that the fact finder was permitted to
consider. See Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001); Dew
berry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999); Garcia v. State, 919
S.W.2d 370, 378 (Tex.Crim.App. 1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex.
Crim.App. 1993). The standard of review concerning the weight of the evidence
is the same for both direct and circumstantial evidence. See Guevarra, 152 S.W.
3d at 49; Green v. State,.840 S.W.2d 394, 401 (Tex.Crim.App. 1992). A jury may
not reasonably infer an ultimate fact from meager circumstantial evidence, none
more probable than another. See Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387,
 392 (Tex. 1997). With regard to the weight of the evidence in circumstantial
 evidence cases, one inference cannot be based upon another inference to reach a
 conclusion or to sustain a conviction. See United States v. Schorr, 462 F.2d
 953, 959 (5th Cir. 1972); Williamson v. State, 156 Tex.Crim. 520, 244 S.W.2d 202,
 204 (1951); Lee v. State, 152 Tex.Crim. 401, 214 S.W.2d 619, 622 (1948). The
 stacking of one inference upon another is not considered to be evidence. Mara
 thon, Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003); Citizens National. Bank
 v. Allen Rae Investments, Inc., 142 S.W.3d 459, 482 (Tex.App.-Fort Worth 2004,
 no pet.Xopinion on reh'g). Proof that amounts to only a strong suspicion or a

                                        -4-
mere probability of guilt is insufficient to sustain a conviction.   See Urbano
v. State, 837 S.W.2d 114, 116 (Tex.Crim.App. 1992); In re J.M.CD., 190 S.W. 3d
7,79, 781 (Tex.App.-El Paso 2006, no pet.); Hall v. State, 86 S.W.3d 235 (Tex.
App.-Austin 2002, pet. ref'd); Grant v. State, 989 S.W.2d 428, 433 (Tex.App.-
Houston [14th Dist.j 1999, no pet.).   If circumstantial evidence provides noth
ing more than a suspicion, the jury is not permitted to reach a speculative
conclusion.    See Louis v. State, 159 S.W.3d 236, 246 (Tex.App.-Beaumont 2005,
pet. ref'd). The weight that is to be accorded evidence under the Tibbs' stan
dard is a question.of law that permits an inquiry into the evidence's factual
sufficiency.    See .457 U.S. at 42, 102 S.Ct. 2211 (under a factual sufficiency
review, the reviewing court views the evidence in a "neutral light" where the
court is.not required to defer to the jury's credibility and'weight determina
tions).
      If cases such as the foregoing are to be reviewed only for legal suffici
ency under Jackson v. Virginia only, then the chance is very great that there
will be an awful lot of defendants who will remain in prison because the Texas
justice system will have failed them where the jury had given great weight to
evidence that should have been accorded very little weight, or none at all, but
it was evidence that was legally sufficient under Jackson.   An example of cases
 in this category would be those in which DNA later proves the defendant was in
 nocent of the crime; but he had been convicted, and his conviction affirmed on
 appeal, because the evidence convicting him had been legally sufficient. If it
 were not for Chapter 64 of the Code of Criminal Procedure, there are many that
 would still be confined in prison, with the exception, that is, of those who
 would have already been executed for a crime they had not committed. It is the
 factual sufficiency standard that is the only means available to defendants for
 which DNA testing is not an option or is unavailable. In these circumstances,
 the courts have an affirmative duty — the conviction must be overturned and an
 order of acquittal entered. Tibbs v. Florida, 457 U.S. at 41, 102 S.Ct. at 2218.

                                        -5-
     The Court of Criminal Appeals' Brooks holding is internally contradictory
and is inconsistent with, and contrary to, the Supreme Court's Tibbs holding.
First, the Brooks Court rationalizes that the legal-sufficiency standard of
Jackson is "indistinguishable" from the factual-sufficiency standard of Tibbs.
Brooks, 323 S-.W.3d at 901 (emphasis added).' But then, throughout the Brooks
opinion, the Court points out those very important areas of difference underly
ing the Supreme Court's reasons for holding that the fact-finders were not to
be accorded deference when reviewing the evidence's factual-sufficiency or its
weight. The Court of Criminal Appeals has essentially chunked binding Supreme
Court precedent into the toilet, and the Court's action should be reconsidered.
                            CONCLUSION

      The Court of Criminal Appeals has discarded the factual sufficiency stan
dard that had been premised upon the Supreme Court's Tibbs v. Florida decision,
and has chosen to retain ONLY the Supreme Court's Jackson v. Virginia legal
sufficiency standard.   So as to prevent any occurrences of manifest injustices,
i.e., incarcerating persons who are actually innocent, the Court should revisit
not only Brooks, but Clewis and its entire progeny of cases. After a thorough
analysis, this Court should determine that the factual-sufficiency, weight-of-
the-evidence standard, should be' restored.
                    PRAYER           FOR         RELIEF
      Petitioner Jamarios Canton prays this Honorable Court will conclude that
it was error for the factual sufficiency, weight-of-the-evidence, standard.not
 to be applied by the Court of Appeals when reviewing his case, as required_by
justice; and will order that the issue be briefed and submitted to the Court of
Criminal Appeals. Alternatively, the Court should find it appropriate to dis
 pose of this case by sending it back to the Court of Appeals to reconsider the
 factual sufficiency question under a proper application of the Tibbs v. Florida
 standard.

                                              Respectfully submitted,


                                       -f>-
                                          &/IARIOS L. CANTON, Petitioner
                                          *6bertson Unit, TDCJ No. 1771951
                                          12071 FM 3522
                                          Abilene, Texas     79601


                  VERIFICATION BY UNSWORN DECLARATION
      I, Jamarios L. Canton, TDCJ-CID No. 1771951, being presently incarcerated
at the Robertson Unit of the Correctional Insitutions Division of the Texas De
partment of Criminal Justice, located in Jones County, Texas, declares under
penalty of perjury that the foregoing is true and correct.
      EXECUTED on this, the TWENTY-FIRST day of MARCH, 2013.


                                              \AjA**arJ>JJnL/ (yd^^^jertrJ
                                                 JAMARIOS L.    CANTON



                          CERTIFICATE OF SERVICE
      I, Jamarios L. Canton, Petitioner pro se, do hereby certify that a true
and correct carbon copy of the above and foregoing PETITION FOR DISCRETIONARY
REVIEW, has been served on the following individuals by regular U.S. Postal
Service first class mail, by depositing same enclosed in a postpaid, properly
addressed wrapper, into the prison's internal Legal Mail System, under the Pri
son Mailbox Rule, on the TWENTY-SECOND day of MARCH, 2013, addressed to:
      Ms.   Nicole Lostracco,    Esq.
      Nacogdoches County District Attorney s Office
      Nacogdoches County Courthouse
      101 West Main Street, Suite 250
      Nacogdoches, Texas      75961
And to:
       State Prosecuting Attorney
      Court of Criminal Appeals Building
      P.O. Box 12405 -- Capitol Station
       Austin, Texas     78711-2405



                                                  JAMARIOS L.   CANTON




                                        -7-
A P ? E N D I X




      -8-
                            NO.   12-12-00118-CR

                         IN THE COURT OF APPEALS

                    TWELFTH COURT OF APPEALS DISTRICT
                                  TYLER, TEXAS           .

JAMARIOS LECHRISTOPHER CANTON,          §       APPEAL FROM THE 145TH
APPELLANT
v>                                      §    JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE                                §   NACOGDOCHES COUNTY, TEXAS


                            MEMORANDUM OPINION

      Jamarios LeChristopher Canton appeals his conviction for aggravated as
sault with a deadly weapon. In his sole issue on appeal, he alleges that the
evidence is legally and factually insufficient to support the iury's guilty
verdict,    we affirm.

                                   BACKGROUND

      On January 10, 2012, in the early morning hours, the Nacogdoches Police
 Department (NPD) received a911 call from awoman who said that she had been
 stabbed and that the assault occurred in the 1000 block of First Street in Nac
 ogdoches, Texas. Several officers from the NPD, including Corporal Charles
 Cain, responded and located awoman on the ground lying in apool of blood. The
 victim, Tone Curl, appeared to be fading in and out of consciousness. When she
 was asked who had "done this," she responded with the name "Chris/1 Police lo
 cated the handle to aknife on the ground near the victim. After the victim
 was rolled over, the police found the blade to the knife underneath where she
 had been laying.
       During the investigation. Corporal Cain received information from Appel
 lant's mother, saying that he was in anearby housing project.and that, accord
 ing to Corporal Cain, Appellant said
he was "waiting         there for officers to come and kill him basically." From a
separate caller,        NPD received information that Appellant was obtaining a ride
back to the scene.       When Appellant arrived, they noticed that he appeared to be
under    the influence of a narcotic, that he was aggressive, and that he was un
able to answer any questions. The officers visually observed that Appellant's
clothes and shoes were covered, in blood, and that his hands were "caked" in
blood,     but he did not appear to have any wounds himself.           Since he was not co
operative,     could not answer questions, and did not appear to understand his
rights as they were read to him, the police arrested him based on their obser
vations.      While    the police were making the arrest., Appellant voluntarily said
bo the officers, "Made me do it." Appellant was later charged and indicted for
the offense, which was enhanced due to a prior offense he had committed.
         Darren Martin      is a twenty-three year old family friend of Appellant and
his mother who often stayed overnight at the home.                 Martin testified that he
and Appellant were at the home of Appellant's mother on the night of the as
sault.      Curl,     an acquaintance of Appellant's mother, went to the home to dis
cuss whether Appellant's mother knew the whereabouts of the mother's sister,
who was Curl's close friend.1 Martin told Curl that Appellant's mother was not
home and he thought Curl left. Martin testified that Appellant was no longer
in the living room at that point, but that he believed he was still inside the
home.      Martin went to another room,              and when he came back, he could see,
 through the screen door, that Appellant was outside sitting or standing next to
 the victim as she lay moaning on the ground.               Martin stated that he was scared
and in shock. Appellant entered the home, grabbed Martin, and held him on his
 lap, saying that he "wasn't going to go down for this, like, by his self."
         Martin's uncle, Cory Flemon, who also knew Appellant, testified that he
 happened to be driving by the scene when he saw Appellant making stabbing mo
 tions, and kicking and stomping on something. Flemon testified that Appellant
 looked up, saw him, and then ran into the home. Flemon, who was concerned for
 his nephew's safety, exited the car and gave chase. He entered just as Appel- .

             Curl testified that she had never met Appellant.
lant   indicated     that he would not be "going down" for this by himself.              Flemon
grabbed'Martin, and told him to leave and call 911.             Martin left to find Appel
lant's mother,       but never called 911.        Flemon also left, but did not call 911
because   he was afraid that he would be falsely accused of the crime due to his
own criminal history.         Although she did not know Appellant, the victim testi
fied that as she was being attacked, she learned the name of her assailant be
cause she heard the peron later identified as Martin saying, ''Stop it, Chris.
Stop it." A Texas Department of Public Safety (DPS) DNA analyst testified that
she tested blood samples found on Appellant's clothes and shoes, which showed
that the blood belonged to Curl.
       The jury found Appellant guilty of the offense, and the enhancement to be
true, and assessed a sentence of imprisonment, for life. This appeal followed.

                            SUFFICIENCY OF THE EVIDENCE

       In his sole issue, Appellant argues that the evidence is insufficient to
support the jury's guilty verdict because the State failed to prove that he was
the perpetrator of the assault on Curl.^
Standard of Review                                    t
       Under the single sufficiency standard, we view the evidence in the light
most favorable to the verdict and 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, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560
(1979); see also Brooki V. StatO, 323 S.W.3d 893, 899 (Tex.Crim.App. 2010). We
defer to the trier of fact's responsibility to resolve conflicts in testimony,
weigh evidence, and draw reasonable inferences from basic facts to ultimate
facts. Jackson, 443 U.S. at 319, 99 S.Ct. at. 2789. "A court faced with a re
cord of historical facts that supports conflicting inferences must presume—


       2 Appellant invokes both legal and factual sufficiency review of the evidence. The lexas
 Court of Criminal Appeals has held that the legal sufficiency standard enunciated in Jb&soi v.
 VUxWfl, 443 U.S. 307, 99 S.Ct. 2781, 61 L. Si. 2d (1979), is the oily standard a reviewing court
 drxild apply in determinire vhether the evidence is sufficient to support each elflrentof a crimi
 nal offense that the state is required to prove beyund a reasonable doubt. See aooics v. State,
 323 S.W.3d 893, 894-95 (Tex.Crim.Acp. 2010)(plurality op.). Vfe will review the evidence under the
 Jackson standard.                              _-,
even   if it does not affirmatively appear in the record—that the trier of fact
resolved any such conflicts in favor of the prosecution...." Id., 443 U.S. at
326, 99 S.Ct. at 2793.    Appellate courts do not reevaluate the weight and cred
ibility of the evidence; they only ensure that the iury reached a rational de
cision.   Laster V. State, 265 S.W.3d 512, 517 (Tex.Crim.App. 2009).
       Eech   fact need not scint directlv and independently to the guilt of the
appellant, as lone as the cumulative force of all'the incriminating circumstan
ces is sufficient to support the conviction.    Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007).    Circumstantial evidence is as probative as direct evi
dence in establishing the guilt of an actor, and circumstantial evidence alone
can be sufficient to establish guilt.    Id.
Applicable Law

       A person is guilty of aggravated assault if he intentionally, knowingly,
or recklessly causes serious bodily iniury to another or uses or exhibits a
deadly weapon during the commission of the assault. TEX. PENAL CODE ANN. §§
22.01(a)(1), 22.02(a) (West .2011).       The state is required to prove beyond a
reasonable doubt that the accused is the person who committed the crime char
ged. JohtlSon V. State, 673 S.W.2d 190, 196 (Tex.Crim.App. 1984). The identity
of a perpetrator in an assault case may be proven by either direct or circum
stantial evidence. See EarIs V. State, 707 S.W. 2d 82, 85 (Tex.Crim.App. 1986)
(en banc). The -jury may use its common knowledge and experience to make infer
ences in determining whether the evidence establishes the defendant as the per
petrator of the alleged crime. See Roberson V. State, 16 S.W.3d 156, 167 (Tex.
App.-Austin 2000, pet. ref'd)("[l]dentity may be proven by inferences."); Clark
V. State, 47 S.W.3d 211, 214 (Tex.App.-Beaumont 2001, no pet.)(same) Jones V.
State, 900 S.W.2d 392, 399 (Tex.App.-San Antonio 1995, writ ref'd)(explaining
 that the jury may use common sense and apply common knowledge, observation, and
 experience gained in ordinary affairs of life when giving effect to inferences
 that may reasonably be drawn from evidence). It is up to the fact finder to
 decide which inferences is most reasonable. Laster, 275 S.W.3d at 523; Hooper,
 214 S.W.3d at i4. '


                                         -4-
        "When    there is no direct evidence of the perpetrator's identity elicited
from    trial    witnesses,   no   formalized    procedure is required for the State to
prove    the identity of the accused." Clark, 47 S.W.3d at 214. Moreover, circum
stantial evidence is not subject to a more rigorous standard of review than di
rect    evidence, and "[f]or purposes of proving guilt beyond a reasonable doubt,
direct and circumstantial evidence are equally probative." Id.

Discussion

        Appellant argues that the victim never specifically identified his as her
assailant,       and that there were other men named "Chris" who could have been the
assailant but were never investigated. He also contends that Martin's testimony
is inconsistent with the victim's testimony and should be discredited. Moreover
he argues that Martin and Flemon behaved suspiciously by fleeing the scene and
failing to call 911.
        First,     the victim is not required to make a positive identification of
the defendant as the perpetrator of the alleged offense so long as other direct
or circumstantial evidence of his identity exists. See Gardner V. State, 306
S.W.3d 274. 285 (Tex.Crim.Ann. 2009)(noting that eyewitness testimony implica
ting the defendant is not necessarily required to support a conviction).
        Next. Detective Scott Weems testified that the police had been made aware
of other individuals named Chris who were associated with the house, but the
police remained focused on Appellant, and never investigated the information.
This was because the Appellant, who went by the name of "Chris," arrived at the
scene with blood all over him, acting aggressively, and said, "Made me do it."
Additionally, Detective Weems testified that Martin never mentioned Cory Fle
mon 's presence at the scene that night to law enforcement. Moreover, no blood
was     discovered on Martin or on any of the furniture inside the residence, even
 though Appellant went back inside the home after the attack. Appellant contends
 that since there was blood on his clothes, shoes, and hands, there should have
been a transfer pattern inside the home or on the couch where he held Martin.
 Appellant infers from the absence of blood, coupled with their failure to call
 911, that Martin and Flemon must not be telling the truth. Appellant contends


                                                -5-
that     the blood evidence was iust as consistent with the theory that he attemp

ted to aid the victim, and that the person saying "Stop it, Chris," was the ac
tual     assailant, who said those words to Appellant as he tried to help the vic

tim.     As    we have stated, it is for the iury to resolve conflicts in testimony,

weigh evidence, and draw reasonable inferences from the evidence. Jackson, 443
U.S. at 319, 99 S.Ct. at 2789. Therefore, it was for the jury to decide whether

Martin's and Flemon's testimony was credible, whether they took part in the as

sault,        and what weight should be attributed to the police's alleged failure to
investigate        other individuals named Chris who may have had a connection to the

assault.

         Viewing the evidence in the light most favorable to the iury's verdict,
the    evidence       shows   that Appellant returned to the scene shortly after police
arrived.        His   clothes were covered in Curl's blood. The victim stated that she
overheard Martin say that a man named "Chris" was her assailant. Appellant goes
by the name of "Chris." While detained by police. Appellant, who appeared to be
under the influence of narcotics, said, "Made me do it." Martin and Flemon both
testified that Appellant said he "wasn't going down for this" by himself.          Fle
mon    testified       that he observed Appellant making stabbing motions in the front
yard. Martin stated that he saw Appellant standing or sitting beside the victim
and he knew something terrible had iust occurred. In fact, the testimonies of-
Martin and Flemon were             largely consistent. Bsed on this evidence, the iury
could have reasonabvly concluded that Appellant was the perpetrator of the as
sault against Curl. Consequently, the evidence is sufficient to support the iu
ry's finding of guilt.
         Appellant's sole issue is overruled.


                                         DISPOSITION

         Having overruled Appellant's sole issue, we affirm the Judgment of the
trial court.

                                                    JAMES T. WORTHEN
                                                      Chief Justice

Opinion delivered December 20, 2012.
Banel consistedof Wbrthai. C.J.. Griffith, J., ad Hoyle, J.
                                      (DO NOT PUBLISH)
                                              -6-
                        COURT          OF       APPEALS

             TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                JUDO MINT


                               DECEMBER 20, 2012

                              NO.   12-12-00118-CR


                     JAMARIOS LECHRISTOPHER CANTON,
                                      Appellant
                                           V.

                              THE STATE OF TEXAS,
                                       Appellee



                Appeal from the 145th Judicial District Court
             of Nacogdoches County, Texas. (Tr.Ct.No. F1017409)

             THIS CAUSE came to be heard on the appellate record and briefs
filed herein, and the same being considered, it is the opinion of this court
that there was no error in the iudgment.
              It is therefore ORDERED, ADJUDGED.and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certi
fied to the court below for observance.

              James T. Worthen, Chief Justice.
              fenel consisted of Ubrthen, C.J., Griffith, J., and Hoyle, J.
