                                                                                 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-
