                                                                                    ACCEPTED
                                                                               03-14-00584-CR
                                                                                      3906725
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                          1/26/2015 9:29:09 PM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK
                    No. 03-14-00584-CR
__________________________________________________________
                                                     FILED IN
                                              3rd COURT OF APPEALS
       IN THE COURT OF APPEALS FOR THE THIRD      AUSTIN, TEXAS
                   DISTRICT OF TEXAS          1/26/2015 9:29:09 PM
__________________________________________________________
                                                JEFFREY D. KYLE
                                                      Clerk
             STEWART LINDSAY SHERROD, Appellant

                                  v.

               THE STATE OF TEXAS, Appellee
__________________________________________________________

On Appeal from the 207th Judicial District Court of Comal County, Texas
                       Cause No. CR2010-105
           Honorable Dib Waldrip, District Judge Presiding
 __________________________________________________________

                  BRIEF FOR THE STATE
__________________________________________________________

                                                          Jennifer Tharp
                                                Criminal District Attorney

                                                                        By
                                                        Joshua D. Presley
                                                          SBN: 24088254
                                               Assistant District Attorney
                                         150 N. Seguin Avenue, Suite #307
                                                           (830) 221-1300
                                                       Fax (830) 608-2008
                                              New Braunfels, Texas 78130
                                            E-mail: preslj@co.comal.tx.us
                                                    Attorney for the State


                  Oral Argument Is Requested
                     Identity of Parties and Counsel

           Attorneys for the Appellant Stewart Lindsay Sherrod

AT TRIAL & ON APPEAL
Paul A. Finley
401 Main Plaza, Suite 200
New Braunfels, Texas 78130
Telephone: (830) 625-8026
Facsimile: (830) 625-4433
Email: pfinley@reaganburrus.com


               Attorneys for the Appellee, The State of Texas

AT TRIAL
Sammy McCrary
Chief Felony Prosecutor
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: mccras@co.comal.tx.us

ON APPEAL
Joshua D. Presley
Assistant District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Telephone: (830) 221-1300
Facsimile: (830) 608-2008
Email: preslj@co.comal.tx.us




                                     ii
                                                Table of Contents

Index of Authorities ................................................................................................. iv

Statement of Facts ......................................................................................................1

         The Evidence Was Legally Sufficient to Prove Appellant Committed the
         Offense of Forgery .........................................................................................4

                   Summary of the Argument ....................................................................4

                   Standard of Review................................................................................5

                   Argument ...............................................................................................8

         The Evidence Was Legally Sufficient to Prove Appellant Committed the
         Offense of Engaging in Organized Criminal Activity ..............................12

                   Summary of the Argument ..................................................................12

                   Standard of Review..............................................................................13

                   Argument .............................................................................................14

         Appellant Has Not Preserved Error Related to the Admission of
         Evidence ........................................................................................................18

                   Summary of the Argument ..................................................................18

                   Argument .............................................................................................18

Prayer .......................................................................................................................24

Certificate of Service ...............................................................................................25

Certificate of Compliance ........................................................................................26




                                                              iii
                                             Index of Authorities
                                                 Statutes & Rules

Tex. Pen. Code Ann. § 32.21 ................................................................................ 6, 7
Tex. Pen. Code Ann. § 71.02 .................................................................................. 13
Tex. R. App. P. 33.1................................................................................................. 19
Tex. R. App. P. 44.2(b) ............................................................................................ 21


                                                          Cases

Barber v. State, 764 S.W.2d 232 (Tex. Crim. App. 1988) ................................13, 14

Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007) ........................................ 21

Ervin v. State, 331 S.W.3d 49 (Tex. App.—Houston
[1st Dist.] 2010, pet. ref’d)......................................................................................... 5

Geick v. State, 349 S.W.3d 542 (Tex. Crim. App. 2011) .......................................... 6

Gonzales v. State, 685 S.W.2d 47 (Tex. Crim. App. 1985)..................................... 19

Harnett v. State, 38 S.W.3d 650 (Tex. App.—Austin 2000,
pet. ref’d) ............................................................................................................19, 22

Jackson v. Virginia, 443 U.S. 307 (1979).............................................................. 5, 7

Jimenez v. State, 804 S.W.2d 334 (Tex. App.—San
Antonio 1991, pet. ref’d) ....................................................................................... 5, 7

Johnson v. State, 84 S.W.3d 726 (Tex.App.-Houston
[1st Dist.] 2002, pet. ref’d)..................................................................................... 5, 7

Klapesky v. State, 256 S.W.3d 442 (Tex. App.—Austin
2008, pet. ref’d) ....................................................................................................... 20


                                                             iv
Kiffe v. State, 361 S.W.3d 104 (Tex. App.—Houston
[1st Dist.] 2011, pet. ref’d)...........................................................5, 6, 7, 9, 11, 12, 17

Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) .......................................... 6

Margraves v. State, 34 S.W.3d 912 (Tex. Crim. App. 2000) ..........................8, 9, 15

Moody v. State, 827 S.W.2d 875 (Tex. Crim. App. 1992) ...................................... 20

Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) ..................................21, 23

Nguyen v. State, 1 S.W.3d 694 (Tex. Crim. App. 1999) ......................................... 13

Pearce v. State, 10-12-00353-CR, 2014 WL 942687
(Tex. App.—Waco Jan. 16, 2014, no pet.) (mem. op., not
designated for publication) ....................................................................................... 7

Richards v. State, 912 S.W.2d 374 (Tex.App.—Houston
[14th Dist.] 1995, pet. ref’d) .................................................................................... 22

Ross v. State, 9 S.W.3d 878 (Tex. App.—Austin 2000, pet.
ref’d) ...................................................................................................................16, 17

Rucker v. State, 13-12-00657-CR, 2013 WL 6730172 (Tex.
App.—Corpus Christi Dec. 19, 2013, pet. ref’d) (mem. op.,
not designated for publication) ..........................................................................21, 22

Scruggs v. State, 782 S.W.2d 499 (Tex. App.—Houston
[1st Dist.] 1989, pet. ref’d).................................................................................19, 20

Shores v. State, 54 S.W.3d 456 (Tex. App.—Texarkana
2001, pet. ref’d) ....................................................................................................... 13

Webb v. State, 760 S.W.2d 263 (Tex. Crim. App. 1988) ........................................ 18

Williams v. State, 688 S.W.2d 486 (Tex. Crim. App. 1985) ............................... 7, 11

                                                               v
                                Statement of Facts

         The Appellant, Stewart Lindsay Sherrod, met Steven Hargrove about six

months before October 8, 2009. RR vol. 3 at 83. Hargrove had been in trouble in

Kingsland for forging checks. Id. at 84. Appellant met Hargrove’s girlfriend, Misti

McMain, a month or two before October 8th. Id. at 83. McMain was a teller at the

Blanco Bank in Bulverde. Id. at 84. McMain testified that Appellant and Hargrove

asked her for an account number so they could make checks. Id. at 72, 76. McMain

said she gave them the account number for HPS Concrete because “it held a lot of

money.” Id. at 72.

         Appellant went to a club with his girlfriend, Tammy Schroeder, in the

middle of September, 2009. Id. at 61. While at the club, Appellant played cards

with Patrick Manning. Id. at 66. Appellant observed that Manning appeared to be

drunk. Id. at 89. Later that night in the parking lot, Manning was mugged; someone

hit him in the head and stole his wallet and money. Id. at 61, 66.

         Around September and October of 2009, Schroeder was unhappy with

Appellant because he had stolen from her. Id. at 65-66. Nevertheless, she allowed

him to drive her vehicle, a silver-blue BMW X3. Id. at 60-61. On September 28,

2009, Appellant and Hargrove drove to the Blanco Bank in Schroeder’s BMW. Id.

at 84.




                                          1
      The teller that day, Travis Walker, knew Hargrove. Id. at 36-37. They had

been in school together, where Hargrove was one grade ahead of Walker. Id.

However, Walker testified that he did not see Hargrove on September 28 th. Id. at

36, 41-42. Walker testified that Appellant passed him a check which appeared to

be from “HPS Concrete” to “Patrick Manning” in the amount of $8,522.53. Id. at

41, 36; CR at 7, 10, 12. Walker also testified that when unknown customers came

through to cash a check, he identified them with their driver’s license. RR vol. 3 at

32-33. After the check was successfully cashed, Appellant said he took at least

$1,200 of the money, despite knowing the check was forged. Id. at 84, 85.

      Just over a week later, on October 7th, 2009, McMain and Hargrove came

over to spend the night with Appellant at his girlfriend’s house. Id. at 63. On the

morning of October 8th, as Schroeder was getting ready to go to work, she saw

Appellant and Hargrove outside in the shed. Id. at 64. They had a computer and

printer, and were printing something out. Id.

      Later that morning, Appellant and Hargrove drove to the same Blanco Bank

in Bulverde. Id. at 45-46. Although Walker was at the bank, the teller handling

their drive-through lane was Sheri Posey. Id. at 44-46. Appellant was driving a

Ford Explorer, while Hargrove was lying down – out of view – in the backseat. Id.

at 46, 40, 42, 54; State’s Exhibit 9 at 11:59:00. Appellant passed a check to Posey

which purported to be from “Brookshire Brothers, Limited” to “Patrick Manning”


                                         2
in the amount of $7,532.76, along with Patrick Manning’s driver’s license. Id. at

16-17, 45-46, 55; CR at 18, 22. Posey testified that she realized it was the same

people who had already passed a forged check; she informed Walker and her

manager, who told her to stall them. Id. at 46. When Posey asked where Appellant

was employed, he said he worked at Brookshire’s as an electrician. Id. at 47.

Meanwhile, Walker went outside to get in a truck and block Appellant in. Id. at 34.

      Detective Gary Edwards responded to the radio call. Id. at 52. When he

arrived, Edwards parked in front of Appellant’s Ford Explorer. Id. at 52-53; State’s

Exhibit 8 at 11:35:25. Edwards ordered Appellant – the driver – out of the car and

onto the ground. Id. at 53. Edwards did not realize Hargrove was lying down out of

view in the backseat. Id. As Edwards handcuffed Appellant on the left side of the

Explorer, Hargrove bolted out of the SUV’s right side and ran up a hill. State’s

Exhibit 8 at 11:35:45; RR vol. 3 at 40. Hargrove was forced to stop fleeing at

gunpoint by a citizen who was a concealed handgun carrier. RR vol. 3 at 54.

      Appellant plead guilty to Counts III and IV of the indictment, related to the

passing and making of the Brookshire Brother’s check on October 8, 2009. Id. at

16-17. He pled not guilty to the counts related to making and passing the

September 28th check, and to Count V, the Engaging in Organized Criminal

Activity charge. Id. at 15-16, 17-18. McMain later testified that she pled guilty to a




                                          3
charge of Engaging in Organized Criminal Activity for engaging with Appellant

and Hargrove to commit forgery. Id. at 73.




The Evidence Was Legally Sufficient to Prove Appellant Committed
                    the Offense of Forgery

      Because Appellant’s conviction for Forgery by Passing supports his

conviction for Engaging in Organized Criminal Activity, the State will address

Appellant’s second issue first. The following Standard of Review is relevant to

both Appellant’s second and first issue on appeal.



                           Summary of the Argument

      In his second point of error, Appellant contends the evidence was legally and

factually insufficient to prove he committed the offense of Forgery as alleged in

Count I of the indictment. See Brief for Appellant at 12. The State put forth legally

sufficient evidence to prove Appellant’s guilt. The jury could reasonably conclude

that Appellant passed the check on September 28 th based on evidence including

Appellant’s admission he was in the car, that he took at least $1,200 of the $8,000

knowing the check had been forged, direct testimony indicating Appellant – and

not Hargrove, whom the teller would have recognized – passed the check, and the

fact that Appellant passed the later check on October 8th while Hargrove hid in the

                                         4
back seat. Similarly, there was abundant evidence that Appellant knew the check

was forged when he passed it, including the fact that he knew Hargrove was in

trouble for forgery, Appellant used a stolen driver’s license to cash the $8,000

check and McMain’s testimony established that Appellant asked her for the HPS

account number to make the checks. Alternatively, even if Hargrove passed the

check on September 28th as Appellant claimed, the evidence was legally sufficient

to uphold Appellant’s conviction as a party to the offense.



                                Standard of Review

      After the decision of the Court of Criminal Appeals in Brooks v. State, Texas

appellate courts review legal and factual sufficiency challenges in criminal cases

using the same legal sufficiency standard of review. Kiffe v. State, 361 S.W.3d 104,

107 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Ervin v. State, 331

S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)). Evidence is only

insufficient if, when considering all the evidence in the light most favorable to the

verdict, “no rational factfinder could have found each essential element of the

charged offense beyond a reasonable doubt.” Id. (citing Jackson v. Virginia, 443

U.S. 307, 319 (1979)). While viewing the evidence in the light most favorable to

the verdict, evidence can be insufficient in two circumstances: when the record

contains “no evidence, or merely a ‘modicum’ of evidence, probative of an


                                         5
element of the offense” or when “the evidence conclusively establishes a

reasonable doubt.” Id. The evidence may also be insufficient when the acts alleged

do not constitute the offense charged. Id. at 108.

      To determine “the essential elements of the crime,” courts will look to “the

hypothetically correct jury charge for the case.” Geick v. State, 349 S.W.3d 542,

545 (Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997)). The hypothetically correct jury charge is “one that accurately

sets out the law, is authorized by the indictment, does not unnecessarily increase

the State’s burden of proof or unnecessarily restrict the State’s theories of liability,

and adequately describes the particular offense for which the defendant was tried.”

Geick, 349 S.W.3d at 545 (quoting Malik, 953 S.W.2d at 240). When there has

been no notice-based motion to quash, a charging instrument is only required to

allege the statutory elements of the offense. See Geick, 249 S.W.3d at 546.

      The elements of forgery are that the defendant forges a writing with intent to

defraud or harm another. Tex. Pen. Code Ann. § 32.21 (West, Westlaw through

2013 Sess.). “Forge” means – among other things – to make a writing so that it

purports:

      (i) to be the act of another who did not authorize that act;

      (ii) to have been executed at a time or place or in a numbered
           sequence other than was in fact the case; or

      (iii) to be a copy of an original when no such original existed;
                                           6
or to pass such a writing with intent to defraud or harm another. Id. “Intent to

defraud or harm may be inferred from proof the defendant knew the instrument

was forged.” Pearce v. State, 10-12-00353-CR, 2014 WL 942687, at *7 (Tex.

App.—Waco Jan. 16, 2014, no pet.) (mem. op., not designated for publication)

(citing Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985)). “Intent to

defraud or harm may be established by circumstantial evidence.” Id. (citing

Williams, 688 S.W.2d at 488).

      Legal sufficiency review “gives full play to the responsibility of the trier of

fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443

U.S. at 319. Reviewing courts determine whether the necessary inferences are

reasonable based on the “combined and cumulative force of the evidence when

viewed in the light most favorable to the verdict.” Kiffe, 361 S.W.3d at 108. Courts

will treat direct and circumstantial evidence equally. Id. “Circumstantial evidence

is as probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt.” Id. Appellate

courts will presume that the factfinder “resolved any conflicting inferences in favor

of the verdict” and defer to that resolution. Id. The reviewing courts will also defer

to “the factfinder’s evaluation of the credibility and the weight of the evidence.” Id.

The factfinder is entitled accept some testimony and reject other testimony, in
                                          7
whole or in part. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000),

abrogated on other grounds by Laster v. State, 275 S.W.3d 512 (Tex. Crim. App.

2009).

                                    Argument

      There is more than a modicum of evidence to prove each element of

Appellant’s offense, and no evidence conclusively establishes a reasonable doubt.

See Kiffe, 361 S.W.3d at 107. Furthermore, the acts alleged constitute the offense

of forgery. See id. First, there is legally sufficient evidence indicating Appellant

passed the check on September 28, 2009 as alleged in Count I of the indictment.

      Appellant admitted being present in the car when the first check was passed

at the drive-through bank lane on September 28, 2009. RR vol. 3 at 84. Although

in his written statement the Appellant also claimed Hargrove drove the car and

passed the check, the jury was free to believe part of his statement and reject other

parts. Id. at 84, 82, 86 (where officer Steve Simpson noted Appellant changed his

story and lied between giving his statement on video and his later written

statement); see also Margraves, 34 S.W.3d at 919. The car Appellant and

Hargrove used for the September 28th forgery was Appellant’s girlfriend’s BMW

X3, which she allowed Appellant to drive. RR vol. 3 at 60, 84.

      Travis Walker – the bank teller to whom the September 28th forgery was

passed – identified Appellant as the driver and passer of the check on that day. Id.


                                         8
at 35-36, 41-42; RR vol. 5 at 12. 1 Additionally, Walker knew Hargrove from

school. RR vol. 3 at 36-37. Walker did not know if Hargrove was in the car on

September 28th. Id. Walker testified that Hargrove could not have been the driver

that day, because Walker would have recognized Hargrove was not “Patrick

Manning” listed on the stolen driver’s license. Id. at 41-42.2

       Walker’s assertion that he would have recognized Hargrove is supported by

the facts of the October 8th forgery. Appellant drove the car and passed the check

on that date. Id. at 16-17, 53. Hargrove was hiding in the back seat and fled while

the officer handcuffed Appellant. Id. at 42, 54; State’s Exhibit 9 at 11:59:00 (where

Appellant states Hargrove “was laying in the backseat when [officers] drove up.”).

The jury could reasonably infer Hargrove was hiding to avoid being seen by

Walker, whom he knew would recognize him. RR vol. 3 at 42. The jury could also

infer that because Hargrove had to hide while Appellant passed the check on

October 8th, this same procedure was followed during the earlier September 28th

1
  Appellant stresses Detective Simpson’s report, which indicated Walker identified Appellant as
a ‘passenger’ of the vehicle on September 28th. Brief for Appellant at 12. However, the Detective
emphasized that he might have misunderstood Walker, and that he wrote his report as the “last
thing [he] did after the fact.” RR vol. 3 at 91. Likewise, the jury was entitled to believe Walker’s
confident identification testimony (see, e.g., id. at 43, 41-42) over what the Detective admitted
was a possibly mistaken report written at the end of his investigation and the Detective’s
impression of another officer’s report. Id. at 101, 103.
2
  Appellant notes the Detective testified he could not make out any person in the photographs of
the vehicle on September 28th. Brief for Appellant at 12. However, the Detective was referring to
“the photographs [he] had to work with” which were black-and-white and appeared fuzzy; they
were not identical to the view Walker would have had. RR vol. 3 at 95, 102-03. Because Walker
testified that he could distinguish facial features – he recognized Appellant and would have
recognized Hargrove – and because Hargrove hid on October 8th, the jury could infer that Walker
had a clearer view of Appellant. See id. at 42.
                                                 9
forgery. This is reinforced by the fact that Walker did not see Hargrove when

Appellant passed the check on September 28th, despite the fact that Appellant’s

statement said Hargrove was in the vehicle. When viewed in the light most

favorable to the verdict, there was legally sufficient circumstantial and direct

evidence that Appellant passed the check on September 28th.

      Next, there was ample evidence from which the jury could infer Appellant

knew the check he passed on September 28th was forged. In Appellant’s written

statement, he admitted knowing Hargrove was in “some kind of trouble in

Kingsland for forging some checks.” RR vol. 3 at 84. Appellant played cards with

Patrick Manning at the club just before Manning was mugged and his driver’s

license was stolen. Id. at 61, 66. Appellant attempted to use that same driver’s

license when he passed the second forged check on October 8th. Id. at 16-17, 48,

55; RR vol. 5 at 17-22; State’s Exhibit 9 at 11:51:06. Appellant passed the first

$8,000 check made out to “Patrick Manning” on September 28 th using Manning’s

driver’s license. Supra at 8-10; RR vol. 3 at 32-33, 41-42, 84. Appellant had

previously stolen money from his girlfriend. RR vol. 3 at 65-66. Appellant

admitted to taking $1,200 of the $8,000 even after he knew the check was forged.

RR vol. 3 at 84-85.

      In such circumstances, the jury reasonably inferred that Appellant knew the

$8,000 check he passed on September 28th with someone else’s stolen driver’s


                                       10
license – while Hargrove, in trouble for forgery, hid in the backseat – was forged.

See Williams, 688 S.W.2d at 488. Over and above that strong circumstantial

evidence, McMain testified that Appellant and Hargrove both pressured her for the

account number of the HPS Concrete business, and that Appellant wanted the

number to make the checks he later passed. See RR vol. 3 at 72, 76.3

      Additionally, even if Hargrove had passed the first check as Appellant

claimed, the State included a paragraph on party liability in the charge. CR at 103.

The fact that Appellant encouraged McMain to provide the necessary account

numbers, provided transportation via his girlfriend’s BMW and obtained at least

$1,200 of the funds for his assistance to Hargrove in the September 28 th forgery

would allow for Appellant’s conviction as a party to the offense.

       The inferences and conclusions of the jury were reasonable, particularly

given the combined and cumulative force of the evidence. See Kiffe, 361 S.W.3d at

108. When viewed in the light most favorable to the verdict, the evidence at trial

was legally sufficient to show Appellant passed the check on September 28 th

knowing it was forged. The Court should defer to the factfinder’s evaluations of




3
 Appellant argues there was no testimony as to when the account number was given. The jury
could reasonably infer from McMain’s testimony that Appellant ‘wanted’ the number to make
checks because he needed the number before he could make the checks. Id. at 76. It would be
nonsensical for Appellant to ‘pressure’ and ‘badger’ McMain for the HPS Concrete account
number after he had already succeeded in passing the HPS Concrete check with the account
number on it. See id. at 72, 76; CR at 7.
                                            11
credibility and weight of the evidence, as well as their resolution of conflicting

inferences in favor of the verdict. See Kiffe, 361 S.W.3d at 108.




The Evidence Was Legally Sufficient to Prove Appellant Committed
     the Offense of Engaging in Organized Criminal Activity


                            Summary of the Argument

      In his first issue, Appellant challenges the sufficiency of the evidence to

prove he committed the offense of Engaging in Organized Criminal Activity. Brief

for Appellant at 7. Appellant focuses on McMain’s involvement in the

combination and the element of continuity. When viewed in the light most

favorable to the verdict, there was legally sufficient evidence of each element of

the offense. In its role as the sole judge of the credibility and weight of the

evidence, the jury was free to accept some parts of McMain’s testimony and reject

other parts, especially in light of her entire testimony and circumstantial evidence.

Furthermore, Appellant’s cited case of Ross v. State actually supports the jury’s

reasonable inference of the group’s intent to work together in a continuing course

of criminal activity in the circumstances of Appellant’s case.




                                         12
                                Standard of Review

      To avoid repetition, the aforementioned standard of review (supra at 5-8) for

Appellant’s second issue on appeal applies equally to his first issue. Additionally,

the elements of Engaging in Organized Criminal Activity are that the defendant

“with the intent to establish, maintain, or participate in a combination or in the

profits of a combination” commits one or more of the offenses mentioned in the

statute, including forgery. Tex. Pen. Code Ann. § 71.02 (West, Westlaw through

2013 Sess.).

      The critical element in a criminal combination is continuity; that is, “three or

more people agreed to work together in a continuing course of criminal activity.”

Shores v. State, 54 S.W.3d 456, 459 (Tex. App.—Texarkana 2001, pet. ref’d)

(citing Nguyen v. State, 1 S.W.3d 694 (Tex. Crim. App. 1999)). The acts that prove

continuity are not required to be criminal offenses themselves, but may be

preparatory acts in furtherance of the combination. Id. (citing Nguyen, 1 S.W.3d

694). Nguyen cited Barber v. State to illustrate the point. Id. (citing 764 S.W.2d

232 (Tex. Crim. App. 1988)). In Barber, the defendants developed a scheme to

steal oil. Id. The State established the element of “intent to establish, maintain, or

participate in a combination or the profits of a combination” by putting on

evidence of several acts – for example, hiring drivers to transport the oil and

making agreements for the sale of the oil – which in the context of a legitimate


                                         13
business would not constitute evidence of a crime. Id. Such acts were found

sufficient to demonstrate the intent to do more than agree to commit one crime. Id.



                                           Argument

       When viewed in the light most favorable to the verdict, there was legally

sufficient evidence of each required element of the charge of Engaging in

Organized Criminal Activity. In his first issue, Appellant attempts to show there

was not an agreement among three or more persons by focusing on McMain’s

testimony that once she provided the account number to Appellant and Hargrove,

she told them to “get off [her] back and leave [her] out of it.” Brief for Appellant at

8; but see RR vol. 3 at 72 (where McMain claims she cooperated after they told her

she was “not going to get in any trouble,” and states she chose HPS Concrete

because “it held a lot of money in there”), 73.4

       Appellant does not acknowledge that the jury was entitled to accept some

parts of her testimony and reject other parts, especially in light of the fact that

McMain admitted pleading guilty to Engaging in Organized Criminal Activity for

her conduct related to Hargrove, Appellant, and the forgeries. RR vol. 3 at 73; see


4
  In his statement of facts, Appellant mentions that McMain testified she said nothing about
being involved with Appellant in her written statement to a Texas Ranger. Brief for Appellant at
4. On the stand, McMain explained that the investigator never asked her about Appellant. RR
vol. 3 at 75. On redirect, McMain testified to Appellant’s being involved. Id. at 76; see also id. at
73 (where McMain spoke of her plea of guilty to the Engaging charge involving Hargrove and
Appellant).
                                                14
also Margraves, 34 S.W.3d at 919. Additionally, contrary to McMain’s testimony,

she stayed at Appellant’s girlfriend’s home with Hargrove and Appellant on the

night of October 7th – over a week after the first forgery, and the night before

Hargrove and Appellant made a second check there and passed it at the bank. RR

vol. 3 at 63. Because McMain provided the account number with access to “a lot of

money” for forging the checks, was still with the group on October 7 th and pled

guilty to the Engaging charge, the jury could reasonably conclude McMain

possessed the intent to work with the group in a continuing course of criminal

activities.

       There is likewise legally sufficient evidence to support the continuity

element. McMain testified that Appellant and Hargrove wanted the account

number so they could “make checks,” plural. Id. at 72, 76 (emphasis added). With

the account number provided by McMain, Appellant and Hargrove made and

passed multiple checks using a computer, printer, stolen driver’s license and

different vehicles. Id. at 42, 55, 64, 69, 84, 86. During his arrest, Appellant noted

the computer in the backseat of his Ford Explorer was what Hargrove “prints all”

his checks on. State’s Exhibit 9 at 11:51:55.

       The commission of multiple offenses more than a week apart constituted

strong circumstantial evidence of an intention to work together in a continuing

course of criminal activities. As discussed supra (at 8-12) the jury had legally


                                         15
sufficient evidence to support its finding of Appellant’s guilt of Forgery on

September 28, 2009, as alleged in Count I of the indictment.5 Over a week after

Appellant and Hargrove obtained around $8,000 from their September 28th forgery,

the group committed two more forgeries by making and passing another check on

October 8th, 2009. Supra; see also RR vol. 3 at 16-17.

       Although Appellant cites Ross v. State for the proposition that the

commission of more than one offense might not be sufficient to support the

continuity element, the facts of that case are readily distinguishable. Brief for

Appellant at 8; see also 9 S.W.3d 878, 882 (Tex. App.—Austin 2000, pet. ref’d).

Unlike Appellant’s case, Ross involved a single criminal episode in which the

defendant and his friends were harassing a woman who had inadvertently cut him

off in traffic. Id. Ross found the offenses committed in a single criminal episode

while driving down I-35 could not support the continuity element: “[t]hat they

ended up committing a series of offenses as the harassment unfolded does not alter

their apparent intent to commit just one assault.” Id. Notably, the Court in Ross

also observed that:


5
  Although Appellant states he was acquitted of “the underlying felony charge for the Engaging
in Organized Criminal Activity charge” (Brief for Appellant at 7), neither the indictment nor the
charge limited the State’s underlying ‘forgery’ charge to the September 28, 2009 Forgery by
Making. CR at 9, 108-10. The charge also explained that the State was not bound by the specific
date in the indictment. CR at 109; see also Jimenez v. State, 804 S.W.2d 334, 337 (Tex. App.—
San Antonio 1991, pet. ref’d) (where the State uses ‘on or about’ language, “conviction may be
had upon proof that the offense was committed any time prior to filing the charging instrument
that is within the period of limitation.”).
                                               16
      [a] case-specific inquiry is required to determine whether a series of
      offenses committed by the same group indicates that a combination
      existed. In appropriate circumstances, the commission by the same
      group of more than one criminal act can, by itself, give rise to a
      reasonable inference of an intent to engage in a continuing course of
      criminal activities. If, for example, several people join together to
      commit a burglary one night, then commit another burglary a week
      later, an inference of continuity might be raised.

Id. (emphasis added). The hypothetical envisioned in Ross is virtually identical to

the facts of Appellant’s case. As outlined above, Appellant, McMain and Hargrove

worked together to commit a forgery on September 28, 2009, and another forgery a

little more than a week later, on October 8, 2009.

      There were ample facts from which the jury could conclude there was an

agreement among Appellant, McMain and Hargrove to “establish, maintain or

participate in a combination or in the profits of a combination.” Additionally,

because the facts in Appellant’s case so closely parallel those Ross suggested

would support a reasonable inference of intent to work together in a continuing

course of criminal activities, it cannot be said that “no rational factfinder could

have found each essential element of the charged offense beyond a reasonable

doubt.” See Kiffe, 361 S.W.3d at 107 (emphasis added). Accordingly, the Court

should defer to the jury’s verdict on this issue.




                                          17
   Appellant Has Not Preserved Error Related to the Admission of
                            Evidence

                            Summary of the Argument

      Appellant’s third point alleges that “it was error” for certain evidence to be

included in an exhibit in spite of a motion in limine, and that the trial court erred in

failing to instruct the jury to disregard the evidence. Appellant’s motion in limine

did not preserve error. Appellant made no timely and specific objection when the

evidence was offered, and further affirmatively waived any error by stating “[n]o

objection.” Alternatively, the Court included an instruction in the charge to

disregard the evidence; after examining the record as a whole, there is a fair

assurance any error did not affect Appellant’s substantial rights.



                                      Argument

      Appellant’s third point of error complains of the admission of evidence of

extraneous offenses and the Court’s refusal to give a subsequent instruction to the

jury to disregard the evidence. However, Appellant’s motion in limine did not

preserve error. “It is axiomatic that motions in limine do not preserve error.” Webb

v. State, 760 S.W.2d 263, 265 (Tex. Crim. App. 1988). “For error to be preserved

with regard to the subject matter of the motion in limine it is absolutely necessary

that an objection be made at the time when the subject is raised during trial.”


                                          18
Gonzales v. State, 685 S.W.2d 47, 50 (Tex. Crim. App. 1985); see also Harnett v.

State, 38 S.W.3d 650, 655 (Tex. App.—Austin 2000, pet. ref’d) (where appellant

only objected to the violation of the motion in limine – and not to the admission of

the evidence – no error was preserved for appeal). In the present case, Appellant

did not object to the admission of State’s Exhibit 9. RR vol. 3 at 80-81; see also

Tex. R. App. P. 33.1.

      Appellant cites Scruggs v. State for the proposition that a violation of a

Court’s ruling on a motion in limine can sometimes result in error justifying

reversal. Brief for Appellant at 17. However, Scruggs involved a prosecutor

repeatedly emphasizing inadmissible breath tests in her direct and cross

examinations of witnesses. Scruggs v. State, 782 S.W.2d 499, 502 (Tex. App.—

Houston [1st Dist.] 1989, pet. ref’d). After the defendant had objected and the trial

court thoroughly rebuked and explicitly ordered the prosecutor not to raise the

issue, she once again intentionally attempted to elicit the inadmissible evidence

during her cross examination of the defendant. Id. The defendant again timely

objected and moved for a mistrial. Id. at 501. By contrast, in Appellant’s case, the

complained-of evidence was briefly mentioned by Appellant in an 11-minute video

interview during Appellant’s arrest. See State’s Exhibit 9 at 11:57:40. There was

no objection either before or promptly after State’s Exhibit 9 was admitted. RR

vol. 3 at 81; see also id. at 107 (where extraneous evidence is next discussed


                                         19
outside the presence of the jury). After State’s Exhibit 9 was admitted, the State

was not cautioned by the Court, nor did the State attempt to elicit or mention the

information again in front of the jury. See also id. at 107 (where the State agreed to

an instruction in the charge which prohibited the jury from considering the

extraneous offenses mentioned in State’s Exhibit 9). In the absence of apparent,

intentional and repeated attempts to bring up that particular information, and

absent any objections by Appellant, Scruggs is inapposite. See 782 S.W.2d at 502.

      Furthermore, when the State offered the complained-of video into evidence,

Appellant affirmatively stated “[n]o objection.” RR vol. 3 at 81. “When the

defendant affirmatively asserts during trial that he has no objection to the

complained-of evidence, he waives any error in the admission of the evidence.”

Klapesky v. State, 256 S.W.3d 442, 449 (Tex. App.—Austin 2008, pet. ref’d)

(citing Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992). Even if

Appellant had preserved error with his motion in limine, when he affirmatively

stated he had “[n]o objection” to the complained-of evidence, he waived any error

in its admission. The Court should find Appellant has failed to preserve any error

related to the admission of evidence of his prior convictions.

      In the alternative, even if error was preserved in the absence of any objection

– and in fact, after Appellant affirmatively stated “[n]o objection” – the erroneous

admission of extraneous offense evidence is nonconstitutional error. Johnson v.


                                         20
State, 84 S.W.3d 726, 729 (Tex.App.-Houston [1st Dist.] 2002, pet. ref’d). Such

error should be disregarded unless it affected Appellant’s substantial rights. See

Tex. R. App. P. 44.2(b). “A substantial right is affected when the error had a

substantial and injurious effect or influence on the jury's verdict.” Rucker v. State,

13-12-00657-CR, 2013 WL 6730172, at *4 (Tex. App.—Corpus Christi Dec. 19,

2013, pet. ref’d) (mem. op., not designated for publication) (citing Casey v. State,

215 S.W.3d 870, 885 (Tex. Crim. App. 2007)). Substantial rights are not affected

if, “after examining the record as a whole, the court has fair assurance that the error

did not influence the jury, or had but a slight effect.” Id. (citing Motilla v. State, 78

S.W.3d 352, 355 (Tex. Crim. App. 2002)).

      In Appellant’s case, the extraneous offenses were mentioned only briefly by

Appellant during the 11-minute interview. See State’s Exhibit 9 at 11:57:40.

Furthermore, though the Appellant mentioned his prior offenses of Possession of a

Controlled Substance and Robbery, the offenses were not inflammatory. The only

details of the underlying conduct for the Robbery charge were those given in

Appellant’s minimizing explanation of the offense, in which he claimed it was a

misunderstanding over $10 he retrieved when a gas station attendant would not

turn on his gas pump. Id.

      Additionally, the trial court included an express instruction in its charge to

the jury that it was not to consider the extraneous offenses in State’s Exhibit 9 for


                                           21
any purpose. CR at 101 (“Further, regarding the testimony concerning the

[Appellant’s] conviction for any act or acts not charged in this indictment, referred

to in State’s Exhibit 9, shall not be considered by you for any purpose.”). From its

position at trial, having viewed all of the evidence, the trial court clearly thought

such an instruction was sufficient to protect Appellant’s substantial rights. See RR

vol. 3 at 108 (“I think this language will be sufficient”), 110 (trial court refers to

the efficacy of the charge instruction in denying a Appellant’s untimely request –

outside of the presence of the jury – for a verbal instruction and a mistrial); see

also Harnett, 38 S.W.3d at 655 (“[A]ppellant accepted the trial court’s offer to

instruct the jury to disregard the testimony. Normally, such an instruction cures

any error or renders it harmless.”) (citing Richards v. State, 912 S.W.2d 374, 378

(Tex.App.—Houston [14th Dist.] 1995, pet. ref’d)).

      The substance of the testimony related to the extraneous offenses was not

inflammatory and the explicit instruction in the charge prevented any substantial

injurious effect or influence on the jury’s verdict. See Rucker, 2013 WL 6730172

at *5 (where the Court presumed the jury followed the trial court’s instructions,

and any error in the admission of evidence did not affect that defendant’s

substantial rights). In light of the overwhelming evidence of Appellant’s guilt,

discussed supra (at 8-17), when the record is viewed as a whole, the Court has a

fair assurance that the error did not influence the jury or had but a slight effect. See


                                          22
Motilla, 78 S.W.3d at 355. Therefore, even if it finds Appellant preserved error in

the admission of evidence for appeal, this Court should affirm the judgment of the

trial court in Appellant’s case.




                                        23
                                     Prayer

      Wherefore, premises considered, Appellee respectfully prays that this

Honorable Court of Appeals affirm in all matters the judgment of the trial court in

this case.


                                                             JENNIFER THARP
                                                        Criminal District Attorney

                                                                                By

                                                             /s/ Joshua D. Presley
                                                               Joshua D. Presley
                                                                   SBN: 24088254
                                                       Assistant District Attorney
                                                 150 N. Seguin Avenue, Ste. #307
                                                     New Braunfels, Texas 78130
                                                                   (830) 221-1300
                                                              Fax (830) 608-2008
                                                   E-mail: preslj@co.comal.tx.us
                                                            Attorney for the State




                                        24
                              Certificate of Service

      I, Joshua D. Presley, attorney for the State of Texas, Appellee, hereby certify
that a true and correct copy of this Brief for the State has been delivered to
Appellant STEWART LINDSAY SHERROD’s attorney of record in this matter:

Paul A. Finley
401 Main Plaza, Suite 200
New Braunfels, Texas 78130
Telephone: (830) 625-8026
Facsimile: (830) 625-4433
Email: pfinley@reaganburrus.com
Attorney for Appellant on Appeal

By electronically sending it through efile.txcourts.gov e-filing, this 26th day of
January, 2015.

                                                                 /s/ Joshua D. Presley
                                                                   Joshua D. Presley




                                          25
                           Certificate of Compliance

       I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the Texas
Rules of Appellate procedure that the instant brief is computer-generated using
Microsoft Word and said computer program has identified that there are 5,694
words within the portions of this brief required to be counted by Rule 9.4(i)(1) &
(2) of the Texas Rules of Appellate Procedure.
       The document was prepared in proportionally-spaced typeface using Times
New Roman 14 for text and Times New Roman 12 for footnotes.

                                                                /s/ Joshua D. Presley
                                                                  Joshua D. Presley




                                         26
