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

CLERKAppellee: 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

11TABLE 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

111INDEX 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 Lasterv. 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

IVNO. 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 1pursuant to Texas Rules of Appellate Procedure. Rule 38.2 and would show the Court the following:

STATEMENT OF THE CASE 

### The StatetriedChristopher Quinn Rivera("Rivera") for theindicted charge of 

### Retaliation in Cause No. CRl4-0448 in the 428^^ Judicial District ofHays County, Texas onFebruary 2, 2015.^ A jury found Rivera guilty of the charged offense and thepunishment was beforethe Honorable Judge BillHenry.^ 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 appellatebriefJuly 8, 2015."*
STATEMENT REGARDING ORALARGUMENT 

### The State does not request oral argument.

ISSUES PRESENTED 

### Rivera's issueis whether theevidence 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 2STATEMENT OF FACTS 

### The State does not object to Rivera's statement offacts; however, pertinent facts have been supplemented in the analysis sectionofthe State's brief
SUMMARY OF THE ARGUMENT 

### Sufficient evidence was presented such that a rational trier offact 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 ofthe crime charged.^ InTexas, 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



### ^

Jacksonv. Virginia, 443 U.S. 307, 316 (1979). 

### ^

SeeBrooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Page 3

### (2) assume that thejury 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 factfinderdoes not act rationally[;]. . . [it] will uphold the verdict unless a rational factfinder must have had reasonable doubt as to any essential 

### element."^ There mustbe anobjectivebasis intherecord inorderto saythatthegreat weight andpreponderance of the evidencecontradicts 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 maychoose tobelieve some testimony anddisbelieve othertestimony. Wheretestimony at trialdefinitively favors or contradicts thejury's verdict, thejury'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 differentway.'^ Retaliation is defined, in relevant part, by Texas Penal Code Section 36.06 as follows:



### ' LopezV. State, 03-11-00086-CR, 2013 WL 4487555 (Tex. App.—^AustinAug. 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 thetestimony, to weigh theevidence, and to drawreasonable inferences from basic factsto ultimatefacts"). ^Za5ter,275S.W.3dat522. 

### ®

Watson V. State, 204 S.W.3d404, 417 (Tex. Crim. App. 2006). Margravesv. 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 ofanother as a: 

### (B) person who has reported or who the actor knows intends to report the occurrence ofa crime... 

### RetaHation is a felony ofthe third degree. ANALYSIS OF RIVERA'S POINT OF ERROR 

### In his only raisedissue, Appellant claims the evidenceis legallyinsufficient to 

### supporthis conviction. Appellant's claimfails because the Appellant's textmessages and his own admissions make clear that he threatened Ms. Pitcher for reporting his 

### criminal mischiefto thepolice. 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 ofCriminal Mischief." Rivera retaliated against Ms. Pitcher for calling police about the Criminal Mischief: 

### Q: (MR. COUCH) Okay. So on orabout

- 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: Letme see. Itlooks like onthe same date within45 minutes. Itsays onthe 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 I sent an e-mail asking him to call in or can we meet because I wanted to talk with him about the case. Q: And what e-mail address was that? 

### A: I don't have those e-mails in frontofme, 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 thingIhave, (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 - youknow, I wasupset. And, yes, basically, I wasjusttrjdng 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 basicallyjust cut it out and went on aboutmybusiness andjust nevercontacted heranymore afterthat. 

### Q: All right. When yousaid

- you referred to her asjustanother 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 thattime.

r 

### Q: Okay. But thatwasn'tthe last one youA: After what I found out
- '^RRVolS 50:21-51:11. Page 8Q: ~ 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 offand just going offand 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 onther\ thephone Iwas sending those textmessages 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 afield 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, thatwas onMarch 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 contactedby 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 ofState'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 10A: Yes. Q: Okay. So that says: "I'm not a bitch Hke your ex. I can get thejob done and
now you're gonna find out the kind ofpain 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 thinkthat'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 March2"^", March 3'^'^, when didyou startusing her (Sister's) phone? A: Yeah. It was probablythat same day or the nextday. BecauseI would log her out and I'd log me in and upload stuffand 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 11Q: 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 differentphones, 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 ofmy friend's phones that I happen to be hanging around with andjust 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 13CONCLUSION 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'sjudgment ofGuilty in Cause No. CR14-0448, including affirmation ofthe punishment, and grant the State all reliefto which it isjustly entitled.

Page 14Respectfully 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 offacts, summary of the argument, signature, certificate ofcompliance, and certificate ofservice.

John Couch Asst. Criminal District Attorney

Page 15CERTIFICATE 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 ofSeptember, 2015.


### Johitouch Asst. Criminal District Attorney

Page 16