                                                                   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



                     CHRISTOPHER QUINN RIVERA,
                               Appellant

                                    VS.


                          THE STATE OF TEXAS,
                                 Appellee


                              APPEAL FROM


                 THE 428TH JUDICIAL DISTRICT COURT

                         HAYS COUNTY, TEXAS

                  TRIAL COURT CAUSE NO. CRl4-0448



                             STATE'S BRIEF



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?

A:   Yes.


Q:   And then 11:45 it talks about being contacted by the detective.

A:   Yes.


Q:   So at that point you had already reported this, correct?

A:   Yes.


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?

A:    (DEFENDANT) Yes.

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.


Q:    Okay.

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?

A:    Yes.


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
