                                                                     ACCEPTED




                                                                            S I OZ-6Z-60
                                                                 12-15-00018-CR
                                                    TWELFTH COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                            9/29/2015 4:28:07 PM
                                                                       Pam Estes
                                                                          CLERK



    CAUSE NUMBER 12-15-00018-CR
                                          RECEIVED IN
                                    12th COURT OF APPEALS
                                         TYLER, TEXAS
  IN THE   COURT OF APPEALS FOR THE 9/29/2015 4:28:07 PM
                                           PAM ESTES
TWELFTH    APPELLATE DISTRICT OF TEXAS       Clerk


                AT TYLER
                                                     9/29/2015



      TIMOTHY TANNER VIATOR

                    VS.

           THE STATE OF TEXAS



           CAUSE NUMBER 31,699

 IN THE 3RD JUDICIAL DISTRICT COURT

     ANDERSON COUNTY, TEXAS


           APPELLANT'S BRIEF


                   Colin D. McFall
                   Attorney at Law
                   513 North Church Street
                   Palestine, Texas 75801-2962
                   Telephone: 903-723-1923
                   Facsimile: 903-723-0269
                   Email:       cmcfall@mcfall-•law-office.com
                   Counsel for Appellant
                                                                                  S 10Z-6Z-60
                  IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Rule 38.1 (a), Texas Rules of Appellate Procedure, Appellant

provides a complete list of all parties and the names and addresses of Counsel:

Defendant:                      Timothy Tanner Viator
                                1200 East Lacy Street
                                Palestine, Texas 75801

Defendant's Trial Counsel:      Colin D. McFall
                                Attorney at Law
                                513 North Church Street
                                Palestine, Texas 75801-2962
                                Telephone: 903-723-1923
                                Facsimile: 903-723-0269

State's Trial Counsel:          Stanley Sokolowski
                                First Assistant Criminal District Attorney
                                Anderson County Courthouse
                                500 North Church Street
                                Palestine, Texas 75801
                                Telephone: 903-723-7400
                                Facsimile: 903-723-7818




                                     Page 2 of 23
                                                     S 10Z-6Z-60
Appellant:             Timothy Tanner Viator
                       Hutchins Unit
                       1500 East Langdon Road
                       Dallas, Texas 75241

Appellant's Counsel:   Colin D. McFall
                       Attorney at Law
                       513 North Church Street
                       Palestine, Texas 75801-2962
                       Telephone: 903-723-1923
                       Facsimile: 903-723-0269

Appellee's Counsel:    Allyson Mitchell
                       Criminal District Attorney
                       Anderson County Courthouse
                       500 North Church Street
                       Palestine, Texas 75801
                       Telephone: 903-723-7400
                       Facsimile: 903-723-7818




                           Page 3 of 23
                                                                  S I OZ-6Z-60
                     TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                              2

TABLE OF CONTENTS                                            4

INDEX OF AUTHORITIES                                         5

STATEMENT OF THE CASE                                        7

STATEMENT REGARDING ORAL ARGUMENT                            8

IS SUES PRESENTED

    I.   THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A

         CONVICTION FOR ENGAGING IN ORGANIZED CRIMINAL

         ACTIVITY                                            9

STATEMENT OF FACTS                                           10

SUMMARY OF THE ARGUMENT                                      13

ARGUMENT                                                 16

PRAYER                                                   21

CERTIFICATE OF COMPLIANCE                                22

CERTIFICATE OF SERVICE                                       23




                            Page 4 of 23
                       INDEX OF AUTHORITIES

CASES                                                            PAGE

    FEDERAL

        Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

              (1979)                                                       .16

    TEXAS

        Arredondo v. State, 270 S.W.3d 676
              (Tex.App.-Eastland 2008, no pet.)                             18

        Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App.2010)                 16

        Dowdle v. State, 11 S.W.3d 233 (Tex.Crim.App.2000)                  18

        Hart v. State, 89 S.W.3d 61, (Tex.Crim.App.2002)                    17

        Hooper v. State, 214 S.W.3d 9 (Tex.Cri,App.2007)                    16

        Isassi v. State, 330 S.W.3d 633 (Tex.Crim.App.2010)                 17

        Montgomery v. State, 369 S.W.3d 188 (Tex.Crim.App.2012)             17

        Munoz v. State, 29 S.W.3d 205
            (Tex.App.-Amarillo 2000, no pet.)                               .19

        Nguyen v. State, 1 S.W.3d 694 (Tex.Crim.App.1999)                17, 18

        Ross v. State, 9 S.W.3d 878 (Tex.App.-Austin 2000, pet. ref d)      18




                               Page 5 of 23
                                                                          S 10Z-6Z-60
RULES AND STATUTES                                            PAGE

    TEXAS PENAL CODE

        Section 71.01(a), Texas Penal Code.                      17, 18

        Section 71.02(a) (1), Texas Penal Code                       17

    TEXAS RULES OF APPELLATE PROCEDURE

        Rule 9.4(i) (3), Texas Rules of Appellate Procedure          22

        Rule 38.1(a), Texas Rules of Appellate Procedure             2

        Rule 38.1(e), Texas Rules of Appellate Procedure              8




                               Page 6 of 23
                          STATEMENT OF THE CASE

      On the 10th day of April 2014, an Anderson County Grand Jury returned a

five count Indictment, charging Appellant with four counts of Forgery (Counts I -

IV) and a single count (County V) of Engaging in Organized Criminal Activity

(C.R., Vol. 1, Pg. 5).

      On the 7th day of October 2014, Appellant plead not guilty to the four counts

of Forgery (R.R., Vol. 2, Pg. 82, L. 21), (R.R., Vol. 2, Pg. 82, L. 24), (R.R., Vol. 2,

Pg. 83, L. 2), (R.R., Vol. 2, Pg. 83, L. 5) and the single count of Engaging in

Organized Criminal Activity (R.R., Vol. 2, Pg. 83, L. 8).

      On the 9th day of October 2014, the jury found Appellant guilty of four

counts of Forgery (R.R., Vol. 4, Pg. 106, L. 4), (R.R., Vol. 4, Pg. 106, L. 9), (R.R.,

Vol. 4, Pg. 106, L. 14), (R.R., Vol. 4, Pg. 106, L. 19) and a single count of

Engaging in Organized Criminal Activity (R.R., Vol. 4, Pg. 106, L. 24).

      On the 19th day of December 2014, the Court sentenced Appellant to ten (10)

years confinement in Count I (R.R., Vol. 5, Pg. 27, L. 23), ten (10) years

confinement in Count II (R.R., Vol. 5, Pg. 28, L. 3), ten (10) years confinement in

Count III (R.R., Vol. 5, Pg. 28, L. 6), ten (10) years confinement in Count IV (R.R.,

Vol. 5, Pg. 28, L. 9), and twelve (12) years confinement in Count V (R.R., Vol. 5,

Pg. 28, L. 12).
                                     Page - 7 - of 23
                                                                                S 10Z-6Z-60
             STATEMENT REGARDING ORAL ARGUMENT

     Pursuant to Rule 38.1 (e), Texas Rules of Appellate Procedure, Appellant

provides the following Statement Regarding Oral Argument:

     Appellant does not request Oral Argument.




                                 Page - 8 - of 23
                                          S 10Z-6Z-60
            ISSUE PRESENTED

THE EVIDENCE IS LEGALLY INSUFFICIENT TO

SUPPORT A CONVICTION FOR ENGAGING IN

ORGANIZED CRIMINAL ACTIVITY.




                Page - 9 - of 23
                             STATEMENT OF FACTS

       Appellant and Co-Defendant Colby Mitchell developed a history of taking

road trips together. Co-Defendant Colby Mitchell testified he would provide a

vehicle and drive, while Appellant would pay for Co-Defendant Colby Mitchell's

time, gas and expenses (R.R., Vol. 4, Pg. 10, L. 5-13). Co-Defendant Colby

Mitchell further testified that in February of 2014, Appellant contacted him to make

a road trip to Texas (R.R., Vol. 4, Pg. 10, L. 16). Although Appellant stated, via a

videotaped statement, that Co-Defendant Colby Mitchell offered to pay Appellant's

way on the Texas road trip (Exhibit 28). Co-Defendant Colby Mitchell testified

that he and his cousin, Co-Defendant Troy Mouton, living together (R.R., Vol. 4,

Pg. 10, L. 16), but Co-Defendant Colby Mitchell's driver's license had been

suspended (R.R., Vol. 4, Pg. 11, L. 4), and Co-Defendant Troy Mouton's vehicle

was impounded (R.R., Vol. 4, Pg. 11, L. 12). Thus, Co-Defendant Joshua Breaux,

with a valid license and vehicle, also joined the road trip (R.R., Vol. 4, Pg. 11, L.

12).

       The four Co-Defendants stopped at a friend's house (R.R., Vol. 4, Pg. 11, L.

24) (Exhibit 30), and stores (R.R., Vol. 3, Pg. 103, L. 3), (R.R., Vol. 3, Pg. 104, L.

1), (R.R., Vol. 4, Pg. 12, L. 4), (R.R., Vol. 4, Pg. 12, L. 16), (Exhibit 30) for

cigarettes (R.R., Vol. 3, Pg. 103, L. 5), (R.R., Vol. 3, Pg. 104, L. 6), (R.R., Vol. 3,
                                     Page - 10 - of 23
                                                                                        S I OZ-6Z-60
Pg. 104, L. 20) (R.R., Vol. 4, Pg. 12, L. 18) (R.R., Vol. 4, Pg. 12, L. 20) drinks

(R.R., Vol. 3, Pg. 104, L. 20) and McDonald's for food (R.R., Vol. 4, Pg. 12, L.

19). The four Co-Defendants stopped for gas when Co-Defendant Breaux came

running out of the store and they drove away (R.R., Vol. 4, Pg. 12, L. 22) (R.R.,

Vol. 4, Pg. 24, L. 3). Co-Defendant Colby Mitchell, knowing Co-Defendant

Breaux has a history of violence and running off at the mouth (R.R., Vol. 4, Pg. 24,

L. 23), believed Co-Defendant Joshua Breaux was running from a fight (R.R., Vol.

4, Pg. 12, L. 24) (R.R., Vol. 4, Pg. 25, L. 7).

      Later, Co-Defendant Colby Mitchell realize Co-Defendant Breaux was

possessing counterfeit money. (R.R., Vol. 4, Pg. 12, L. 25). Co-Defendant Colby

Mitchell testified that Co-Defendant Colby Mitchell (R.R., Vol. 4, Pg. 13, L. 9),

Co-Defendant Joshua Breaux (R.R., Vol. 4, Pg. 13, L. 4), (R.R., Vol. 4, Pg. 13, L.

14) and Co-Defendant Troy Mouton received the Counterfeit money from

Appellant (R.R., Vol. 4, Pg. 13, L. 19).

      Co-Defendant Mouton testified he knew the money was fake (R.R., Vol. 3,

Pg. 105, L. 10) (R.R., Vol. 3, Pg. 114, L. 13) (R.R., Vol. 3, Pg. 114, L. 15) because

Co-Defendant Joshua Breaux told him the money was fake (R.R., Vol. 3, Pg. 105,

L. 12), (R.R., Vol. 3, Pg. 105, L. 14) (R.R., Vol. 3, Pg. 106, L. 2). Co-Defendant

Mouton also stated that Appellant had all the money and that he would ask Co-
                                     Page - 11 - of 23
                                                                                            S I OZ-6Z-60
Defendant Mouton to spend money for Appellant (Exhibit 27).

      Officers stopped the vehicle at J.J.'s 107 (R.R., Vol. 3, Pg. 9, L. 4) and

detained Co-Defendant Troy Mouton, Co-Defendant Colby Mitchell, and Co-

Defendant Breaux (R.R., Vol. 3, Pg. 10, L. 22). Appellant had walked across the

street and passed a counterfeit fifty dollar bill at the Boxcar Deli (R.R., Vol. 3, Pg.

11, L. 9) (R.R., Vol. 3, Pg. 11, L. 5), (R.R., Vol. 3, Pg. 13, L. 21), (R.R., Vol. 3, Pg.

111, L. 18). Appellant saw the police detained Co-Defendant Troy Mouton, Co-

Defendant Colby Mitchell, and Co-Defendant Breaux at J.J.'s 107, and left the

scene (Exhibit 28). The State eventually took Appellant into custody at the

Dogwood Theater (R.R., Vol. 3, Pg. 12, L. 9). Appellant was found in possession

of five counterfeit fifty dollar bills (R.R., Vol. 3, Pg. 14, L. 3),




                                      Page - 12 - of 23
                       SUMMARY OF THE ARGUMENT

             THE EVIDENCE IS LEGALLY INSUFFICIENT TO

             SUPPORT A CONVICTION FOR ENGAGING IN

             ORGANIZED CRIMINAL ACTIVITY.

      The legal sufficiency standard is the only standard a reviewing Court should

apply in determining whether the evidence is sufficient to support a guilty verdict.

The critical inquiry is, in viewing the evidence in the light most favorable to the

prosecution after a verdict of guilt, whether any rational jury could have found the

essential elements of the crime beyond a reasonable doubt.

      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.

      When performing a legal sufficiency review, Courts may not reevaluate the

weight and credibility of the evidence and substitute their own judgment for that of

the jury. When faced with record supporting contradictory inferences, we presume

the jury resolved conflicts in favor of the verdict.

      A Defendant commits the offense of Engaging in Organized Criminal

Activity if, with the intent to establish, maintain, or participate in a combination, he

commits or conspires to commit one or more of the enumerated offenses, including
                                     Page - 13 - of 23
forgery. A "combination" is three or more persons who collaborate in carrying on

criminal activities. The Court has construed this language as requiring a

"continuing course of criminal activities." This involves more than the intent to

merely commit an enumerated offense, a plan to commit a single act, or proof of

working jointly to commit a crime—it requires proof of continuity.

      The activities do not have to individually be criminal offenses to satisfy the

statutory requirement, and a single criminal offense can be sufficient. However, the

statute requires proof of intended continuity, i.e., that "the appellant intended to

establish, maintain, or participate in' a group of three or more, in which the

members intend to work together in a continuing course of criminal activities."

      Evidence that multiple criminal violations occurred is not alone sufficient to

establish intent to engage in a continuous course of criminal activity when all of the

alleged violations occurred during a single criminal episode.

      To satisfy the continuity element, the State must offer evidence to prove the

Defendant intended to participate in a continuing course of criminal activity. The

combination's members must be more than temporarily organized to engage in a

single criminal episode. There must be proof of intent to participate in a criminal

combination that extends beyond a single criminal episode, ad hoc effort, or goal,

regardless of whether multiple laws were broken within the confines of that episode
                                    Page - 14 - of 23
                                                                                        S I OZ-6Z-60
or effort. Evidence of multiple criminal violations alone does not permit the

inference that the members of the group intended to continue working together

beyond the completion of an episode or achievement of a goal. The State must

offer evidence that allows a jury to infer that the group intended to continue

engaging in illegality over a period of time.

      Appellee failed to evidence that Appellant intended to participate in a

continuing course of criminal activity. Appellee failed to evidence the

combination's members were more than temporarily organized to engage in a single

criminal episode. Appellee failed to evidence an intent to participate in a criminal

combination that extends beyond a single criminal episode, ad hoc effort, or goal,

despite the multiple laws that were broken within the confines of that episode or

effort. Appellee failed to introduce evidence that allowed the Jury to infer that the

group intended to continue engaging in illegality over a period of time. Essentially,

Appellee proved nothing more than a single criminal episode that merely contained

more than one criminal offense.




                                    Page - 15 - of 23
                                                                                         S I OZ-6Z-60
                                   ARGUMENT

            THE EVIDENCE IS LEGALLY INSUFFICIENT TO

             SUPPORT A CONVICTION FOR ENGAGING IN

             ORGANIZED CRIMINAL ACTIVITY.

      The legal sufficiency standard is the only standard a reviewing Court should

apply in determining whether the evidence is sufficient to support a guilty verdict

Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010). The critical inquiry is,

in viewing the evidence in the light most favorable to the prosecution after a verdict

of guilt, whether any rational jury 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, 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912

(Tex.Crim.App.2010) (Holding that all Texas criminal cases are only to be

reviewed under the standard announced in Jackson v. Virginia, 443 U.S. 307, 319,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

      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 v. State, 214 S.W.3d 9, 13
                                    Page - 16 - of 23
                                                                                           S I OZ-6Z-60
(Tex.Crim.App.2007).

      When performing a legal sufficiency review, Courts may not reevaluate the

weight and credibility of the evidence and substitute their own judgment for that of

the jury. Montgomery v. State, 369 S.W.3d 188, 192 (Tex.Crim.App.2012); see also

Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.2010) ("[O]ur role is not to

become a thirteenth juror."). When faced with a record supporting contradictory

inferences, we presume the jury resolved conflicts in favor of the verdict.

Montgomery v. State, 369 S.W.3d 188, 192 (Tex.Crim.App.2012).

      A Defendant commits the offense of Engaging in Organized Criminal

Activity if, with the intent to establish, maintain, or participate in a combination, he

commits or conspires to commit one or more of the enumerated offenses, including

forgery. Tex. Penal Code § 71.02(a) (1). Section 71.01 (a), Texas Penal Code,

defines a "combination" as three or more persons who collaborate in carrying on

criminal activities. 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, 697 (Tex.Crim.App.1999). This involves more than the intent to merely

commit an enumerated offense, a plan to commit a single act, or proof of working

jointly to commit a crime—it requires proof of continuity. Hart v. State, 89 S.W.3d

61, 63-64 (Tex.Crim.App.2002); Nguyen v. State, 1 S.W.3d 694, 696-97
                                Page -17 - of 23
(Tex.Crim.App.1999).

      The activities do not have to individually be criminal offenses to satisfy the

statutory requirement, and a single criminal offense can be sufficient. Nguyen v.

State, 1   S.W.3d 694, 697 (Tex.Crim.App.1999); see also Dowdle v. State, 11

S.W.3d 233, 236 (Tex.Crim.App.2000) (continuous activities after a shooting

included fleeing, re-grouping, discussing a plan of action, and traveling to another

country with stolen goods). However, the statute requires proof of intended

continuity, i.e., that "the appellant intended to establish, maintain, or participate in'

a group of three or more, in which the members intend to work together in a

continuing course of criminal activities." Nguyen v. State, 1 S.W.3d 694, 697

(Tex. Crim.App .1999).

      Evidence that multiple criminal violations occurred is not alone sufficient to

establish an intent to engage in a continuous course of criminal activity as required

under Section 71.01(a), Texas Penal Code, when all of the alleged violations

occurred during a single criminal episode. See Arredondo v. State, 270 S.W.3d 676

(Tex.App.-Eastland 2008, no pet.) (Holding proof of numerous crimes at a party

alone was not sufficient to demonstrate the crimes were more than a one-time event

or episode); Ross v. State, 9 S.W.3d 878 (Tex.App.-Austin 2000, pet. ref d)

(Holding evidence of a series of assaults alone was not sufficient to show an intent
                                     Page - 18 - of 23
                                                                                       S I OZ-6Z-60
to engage in a continuing course of criminal activity beyond a single criminal

episode); Munoz v. State, 29 S.W.3d 205 (Tex.App.-Amarillo 2000, no pet.).

(Holding proof of multiple criminal violations alone was not sufficient to show that

group's criminal activity would endure beyond achievement of single goal).

      To satisfy the continuity element as set forth in Nguyen, the State must

offer evidence to prove the Defendant intended to participate in a continuing course

of criminal activity. E.g., Ross v State, 9 S.W.3d 878, 882 (Tex.App..-Austin 2000,

pet. ref d). The combination's members must be more than temporarily organized

to engage in a single criminal episode. See Munoz v. State, 29 S.W.3d 205, 208-09

(Tex.App.-Amarillo 2000, no pet.). There must be proof of an intent to participate

in a criminal combination that extends beyond a single criminal episode, ad hoc

effort, or goal, regardless of whether multiple laws were broken within the confines

of that episode or effort. See Arredondo v. State, 270 S.W.3d 676, 682-83

(Tex.App.-Eastland 2008, no pet.). Evidence of multiple criminal violations alone

does not permit the inference that the members of the group intended to continue

working together beyond the completion of an episode or achievement of a goal.

See Munoz v. State, 29 S.W.3d 205, 210 (Tex.App.-Amarillo 2000, no pet.). The

State must offer evidence that allows a jury to infer that the group intended to

continue engaging in illegality over a period of time Munoz v. State, 29 S.W.3d
                                   Page - 19 - of 23
                                                                                       S I OZ-6Z-60
205, 210 (Tex.App.-Amarillo 2000, no pet.).

        Furthermore, Appellee failed to evidence that Appellant intended to

participate in a continuing course of criminal activity. Appellee failed to evidence

the combination's members were more than temporarily organized to engage in a

single criminal episode. Appellee failed to evidence an intent to participate in a

criminal combination that extends beyond a single criminal episode, ad hoc effort,

or goal, despite the multiple laws that were broken within the confines of that

episode or effort. Appellee failed to introduce evidence that allowed the Jury to

infer that the group intended to continue engaging in illegality over a period of

time.




                                    Page - 20 - of 23
                                                                                       S 10Z-6Z-60
                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays the Appellate

Court find the evidence is legally insufficient to support a conviction for engaging

in Organized Criminal Activity and reverse Appellant's conviction on Engaged in

Organized Criminal Activity and render a judgment acquitting him of Engaged in

Organized Criminal Activity.




                                   Page - 21 - of 23
                                                                                    S 10Z-6Z-60
                      CERTIFICATE OF COMPLIANCE

      I, Colin D. McFall, Attorney of Record for the above styled Appellant,

pursuant to Rule 9.4(0(3), Texas Rules of Appellate Procedure, hereby certify the

number of words within Appellant's Brief at three thousand, one hundred, thirty

two (3,132).

RESPECTFULLY SUBMITTED,


                                   513 North Church Street
                                   Palestine, Texas 75801-2962
COLIN D. TFALL                     Telephone: 903-723-1923
Attorney at Law                    Facsimile: 903-723-0269
Texas Bar Number:        24027498 Email: cmcfall@mcfall-law-office.corn




                                  Page - 22 - of 23
                         CERTIFICATE OF SERVICE

      I, Colin D. McFall, Attorney of Record for the above styled Appellant,

hereby certify service of a true and correct copy of the above and foregoing

document upon Anderson County Assistant Criminal District Attorney, Scott

Holden, at sholden@co.anderson.tx.us, by email transmission, on the 29th day of

September 2015.

RESPECTFULLY SUBMITTED,


                                    513 North Church Street
                                    Palestine, Texas 75801-2962
COLIN D. TALL                       Telephone: 903-723-1923
Attorney at Law                     Facsimile: 903-723-0269
Texas Bar Number:         24027498 Email: cmcfall@mcfall-law-office.com




                                   Page - 23 - of 23
