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. 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 ofTexas

ACCEPTED

03-15-00116-CR

6932118

THIRD COURT OF APPEALS

AUSTIN, TEXAS

9/15/2015 1:44:11 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 9/16/2015 11:01:11 AM JEFFREY D. KYLE Clerk
Appellee:

Attorneys for the State:

At trial:

On appeal:

Appellant:

Attorney for Appellant:

At trial:

On appeal:

NAMES OF PARTIES

State ofTexas

Wes Mau, Hays County District Attorney

John Couch, Assistant District Attorney

John Couch

Asst. Criminal District Attorney

712 S. Stagecoach Trail, Suite 2057

San Marcos, TX 78666

State Bar No. 24048407

Attorney for the State ofTexas

Christopher Quinn Rivera

Erick Bovik

Bovik & Meredith, P.C.

PO Box 150129

Austin, TX 78715

State Bar No. 00792366

Atttoraey for Defense

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 OFAUTHORITIES

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 Statetried 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 beforethe Honorable Judge Bill Henry.^ Judge Henry sentenced

Rivera to six years in the Texas Department ofCorrections Institutional Division and

imposed a $500 fine on February 4, 2015.^

Rivera filed his appellate briefJuly 8, 2015."*

STATEMENT REGARDING ORALARGUMENT

The State does not request oral argument.

ISSUES PRESENTED

Rivera's issueis 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 ofthe 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 ofEvidence Standard ofReview

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 ofthe crime beyond a reasonabledoubt, 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 anobjective basis intherecord in order to saythat thegreat

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.

Wheretestimony at trial definitively favors or contradicts thejury'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 drawreasonable inferences from basic factsto 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 at417.

'"•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 ofthe 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 ofthe third degree.

ANALYSIS OF RIVERA'S POINT OF ERROR

In his only raised issue, Appellant claims the evidenceis legally insufficient to

support his conviction. Appellant's claimfails 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. Itlooks like on the same date within 45 minutes. Itsays 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. IfI can't get a - ifthey 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: Itlooks like on the same day (March 3'^'^) at 1139 hours Isent 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 ofme, they would have been in the case file,

but it's something streamliner. I deal with so many ofthose. But I don't have

thatpart of the- the sheet doesn't printout on this thingI 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 ofthese, 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 ofreaction, which I never got, so I just basically just cut it out and

went on aboutmy business andjust never contacted her anymore afterthat.

Q: All right. When you said - you referred to her asjust 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 wasjust merelystatingmy opinion abouther at that time.

r

Q: Okay. But that wasn't the last one youA: 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. Ifthere's more, there's more from that day. I know I sent

a lot ofthem. I know I sent a lot ofthem 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 oftext 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 offguard."

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. BecauseI 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 ofwhat?

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 ofthem 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 ofthe 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 ofthe 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 ofthe punishment, and grant the State all reliefto

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 ofTexas

CERTIFICATE OF COMPLIANCE WITH

TEX. R. APR P.. RULE 9.4

I certifythat this brief contains2,326 words, exclusiveofthe 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 ofservice.

John Couch

Asst. Criminal District Attorney

Page 15
CERTIFICATE OF SERVICE

I certify that a true copy ofthe foregoing briefhas 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