673-/5

IN THE

COURT OF CRIMINAL APPEALS OF TEXAS ORIGINAL

JAMARIOS LEGHRISTOPHER CANTON,

FILED IN

COURT OF CRIMINALAPPEALS

-vs03 2015

THE STATE OF TEXAS, . t _. , Abel Acosta, Cierk

ON PETITION SEEKING DISCRETIONARY REVIEW

OF COURT OF APPEALS NO. 12-12-00118-CR FROM THE

COURT OF APPEALS FOR THE TWELFTH COURT OF APPEALS DISTRICT

AFFIRMING THE CONVICTION AND SENTENCE IN

TRIAL COURT CASE NO. F1017409 OUT OF

THE 145th JUDICIAL DISTRICT COURT OF NACOGDOCHES COUNTY]

5CAM&

(CCA>

A

PETITION FOR DISCRETIONARY REVIEW

JAMARIOS L. CANTON, pro seRobertson Unit, TDCJ No. 1771951

12071 FM 3522

Abilene, Texas 79601

Appellant-Petitioner
TABLE OF CONTENTS

SECTION PAGE

INDEX OF AUTHORITIES ii

STATEMENT REGARDING ORAL ARGUMENT iv

STATEMENT OF THE CASE., v

STATEMENT OF PROCEDURAL HISTORY v

GROUNDS FOR REVIEW 1

ARGUMENT AND AUTHORITIES 2

THE COURT OF APPEALS APPLIED THE WRONG STANDARD OF REVIEW •• 2

THE COURT OF CRIMINAL APPEALS' DECISION IN BROOKS v. STATE IS WRONG 2

CONCLUSION 6

PRAYER FOR RELIEF &

VERIFICATION BY UNSWORN DECLARATIONS- 7

CERTIFICATE OF SERVICE * 7

APPENDIX • 8

OPINION OF THE TWELFTH COURT OF APPEALS — TYLER, TEXAS

Mot Reported in S.W.3d, WL , Tex.App. LEXIS

JUDGMENT OF THE TWELFTH COURT OF APPEALS — December 20, 2012
INDEX OF AUTHORITIES

FEDERAL CASES £M£

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) passim

Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211 (1982) ._ passim

United States v. Schorr, 462 F.2d 953 (5th Cir. 1972) 4

Winship; In re, 397 U.S. 358, 90 S.Ct. 1068 (1970) 2

STATE CASES PAGE

Alexander v. State, 740 S.W.2d 749 (Tex.Crim.App. 1987) 3

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

Cardenas v. State, 30 .S.W.3d 384 (Tex.Crim.App. 2000) 3

Citizens National Bank v. Allen Rae Investments, Inc.,

142 S.W.3d 459 (Tex.App.- Fort Worth 2004) 4

Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996) passim

Conner v. State, 67 S.W.3d 192 ..(Tex.Crim.App. 2001) 4

Dewberry v. State, 4 S.W.3d 735 (Tex.Crim.App. 1999) 4

Fisher v. State, 851 S.W.2d 298 (Tex.Crim.App. 1993) 2,3

Garcia v. State^ 919 S.W.2d 370 (Tex.Crim.App. 1994) 4

Grant v. State. 989 S.W.2d 428 (Tex.App.-Houston [14th Dist.]%L999) 4-5

Green v. State, 840 S.W.2d 394 (Tex.Crim.App. 1992) 4

Guevara v. State, 152 S..U.3 45 (Tex.Crim.App. 2004) 3, 4

Hall v. State, 86 S.W.3 235 (Tex.App.-Austin 2002) 4-5

Hammerlv Oaks, Inc. v. Edwards, 958 S.W.2d 387 (Tex. 1997) , 4

J.M.C.D.; In re, 190 S.W.3d 779 (Tex.App.-El Paso 2006) 4-5

Johnson v. State, 871 S.W.2d 183 (Tex.Crim.App. 1993) .. 4

Jones v. State, 944 S.W.2d 642 (Tex.Crim.App. 1996) 3

King v. State, 29 S.W.3d 556 (Tex.Crim.App. 2000) 3

Lee v. State, 152 Tex.Crim. 401, 214 S.W.2d 619 (1948) 4

Louis v. State, 159 S.W.3d 236 (Tex.App.-Beaumont 2005) 4-5

-li-
STATE CASES (continued) PAGE

Marathon Corp. v. Pitzner, 106 S.W.3d 724 (Tex. 2003) 4

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

Matson v. State, 819 S.W.2d 839 (Tex.Crim.App. 1991) 4

Moreno v. State, 755 S.W.2d 866 (Tex.Crim.App. 1988) 3

Narvaiz v. State, 840 S.W*.2d 415 (Tex.Crim.App. 1992) 3

Roberson v. State, 16 S.W.3d 156 (Tex.App.-Austin 2000) 3

Rodriguez v. State, 939 S.W.2d 211 (Tex.App.-Austin 1997) 3

Sanders v. State, 119 S.W.3d 818 (Tex.Crim.App. 2003) 3

Sharp v. State, 707 S.W.2d 611 (Tex.Crim.App. 1986) 3

Urbano v. State, 837 S.W.2d 115 (Tex.Crim.App. 1992) 4-5

Ward v. State, 143 S.W.3d 271 (Tex.App.- Waco 2004) 3

Ware v. State, 62 S.W.3d 344 (Tex.App.-Fort Worth 2001) 4

Williams v. State, 692 S.W.2d 671 (Tex.Crim.App. 1984) 3

Williamson v. State, 156 Tex.Crim. 520, 244 S.W.2d 202 (1951) 4

CONSTITUTION. STATUTES, CODES, AND RULES PAGE

U.S. CONST., amend. XIV.... 3

TEXAS PENAL CODE §2.01 • 2~3

-in-
STATEMENT REGARDING ORAL ARGUMENT

Jamarios LeChristopher Canton, Petitioner pro se in this case, believes

that oral argument will be absolutely necessary for being able to fully explain

the underlying reasons that this Court's Brooks v. State opinion and decision

is patently incorrect and flawed where it was contrary to the Supreme Court of

the United States' holding and decision handed down in Tibbs v. Florida, 457

U.S. 31, 102 S.Ct. 2211 (1982). This issue is central and crucial to the Court

of Appeals' erroneous reading and application of Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781 (1979), and this Court's intended purposes behind its Clewis

v. State decision.

In the event that this Court determines that oral argument is necessary,

Petitioner respectfully moves the Court to invite the attorney who briefed the

appeal in tha court below, to participate on Petitioner's behalf in presenting

oral argument.

JAMARIOS L. CANTON

-IV-
STATEMENT OF THE CASE

Petitioner Jamarios Canton ("Canton") was indicted on February 19, 2010,

for one count of aggravated assault with a deadly weapon in Cause No. F1017409

in the 145th Judicial District Court of Nacogdoches County, Texas. Contained

within the indictment was an enhancement paragraph alleging that Canton had

previously been convicted of attempted robbery in 1995. The case was called

for trial on February 27, 2012, at which time both sides were present and_announced ready for trial, and a jury was then selected and empaneled. Trial be

gan on March 5, 2012, and after all of the evidence had been presented, and the

prosecution:, and defense, closed and rested, the jury found Canton guilty the

next day, on March 6, 2012. That same day, the jury heard evidence and argu

ment on punishment. The jury's verdict found the enhancement paragraph "True,"

and sentenced Canton to life imprisonment in the Texas Department of Criminal

Justice, Correctional Institutions Division ("TDCJ").

The Twelfth Court of Appeals at Tyler, Texas, affirmed the conviction and

sentence, overruling Canton's sole issue he urged on appeal, which was that the

evidence was legally and factually insufficient to support aguilty verdict and

rejected Canton's factually insufficient ground in light of Brooks v. State,

323 S.W.3d 893 (Tex.Crim.App. 2010)(plurality op.)(holding that the legal suf

ficiency standard enunciated in Jackson v. Virginia is the only standard that a

reviewing court should apply in determining whether the evidence is sufficient

to support each element of acriminal offense that the state is required to

prove beyond a reasonable doubt).

STATEMENT OP PROCEDURAL HISTORY

This case was tried in the 145th Judicial District Court of Nacogdoches

County, Texas, before the Honorable Campbell Cox, II, in which aguilty verdict

was returned by the jury on March 6, 2012. Following the verdict on guilt, the

jury sentenced Canton to life imprisonment in the TDCJ. Canton then perfec-

-v-
ted a timely appeal, submitting his Brief of Appellant on July 9, 2012; there

after, on July 18, 2012, the State filed its Brief of Appellee. The case was

submitted to the appellate panel on August 23, 2012, with the opinion being de

livered, and the Judgment rendered, on December 20, 2012.

On January 16, 2013, Canton submitted his First Motion For Extension Of

Time To File Petition For Discretionary Review; and his Motion For Suspension

Of Rule[ 9.3(b) of the Texas Rules of Appellate Procedure]. Both motions were

granted by the Court: Rule 9.3(b) was suspended, and Canton was granted-the ex

tension of time and given up to, and including, Friday, March 22, 2013, to file

this instant petition. The Certificate of Service attached hereto certifies

that this petition was deposited into the prison's internal Legal Mail System,

under the Prison Mailbox Rule, for mailing to the Clerk of the Court of Crimi

nal Appeals, on Friday afternoon, March 22, 2013.

-vi-
GROUNDS FOR REVIEW

As required by the Texas Rules of Appellate Procedure, Canton indicates

the specific rule provisions under which he asks that the Court of Criminal Ap

peals to review the Court of Appeals' decision and judgment, where it:

A. Conflicts with other opinions of other courts of appeals [Tex.R.App.P.

Rule 66.3(a)].

B. Has decided an important question of state and federal law in such a

way that it conflicts with applicable decisions, of the Court of Crimi

nal Appeals, and the Supreme Court of the United States [Tex.R.App.P.

Rule 66.3(c)].

C. The Court of Appeals' decision had been based upon an erroneous deci

sion in Brooks v. State, in which the Court of Criminal Appeals had

incorrectly overruled and abrogated its insufficiency of the evidence

standard that the Court had enunciated in Clewis v. State, where the

Clewis.'-. Court had based its two-pronged insufficiency of evidence stan

dards on (1) Jackson v. Virginia for "legal insufficiency" challenges;

and on (2) Tibbs v. Florida, for challenges that are directed at the

weight of the evidence, a standard that over the years following ClewIs and its progeny of cases, had eventually been recharacterized ;as a

"factual insufficiency" standard, instead of the "weight of evidence"

standard that had originally been intended by the Clewis Court LTex.R.

App.P. Rule 66.3(f)].

Specifically, the Court of Appeals' decision requires review by the Court

of Criminal Appeals for determining—

1. Whether the Court of Criminal Appeals should revisit Brooks v. State,

323 S.W.3d 893 (Tex.Crim.App. 2010), for determining if Clewis had or

iginally mandated that (1) "legal insufficiency" challenges were to be

reviewed under Jackson v. Virginia; whereas (2), "factual insufficien

cy" challenges were to be reviewed under Tibbs V. Florida as a chal

lenge regarding the "weight of the evidence."

2. Should grounds on, appeal that challenges the evidence's legal and fac

tual sufficiency, be strictly construed as such, or should they be re

cognized as grounds challenging the evidence's legal sufficiencyand

its weight, as required by Tibbs v. Florida?

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ARGUMENT AND AUTHORITIES

In Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996), this Court had

authorized a two-pronged review of evidence utilizing Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781 (1979), when examining the legal sufficiency of the evi

dence, and Tibbs v. Florida, 457 U.S. 31, 102 S.Ct.. 2211 (1982), for review of

the weight of the evidence. This evidentiary standard of review has served the

State well for almsot fifteen years. However, in Brooks v. State, 323 S.W.3d

893, 894-95 (Tex.Crim.App. 2010)(plurality op.), the; Court has now concluded

that the Supreme Court of the United States was incorrect in its Tibbs' deci

sion in which the Supreme Court had "explained the difference between reversals

based on evidentiary sufficiency ... and reversals based on evidentiary weight

(i:.'e,, factual-sufficiency)...." Brooks v. State, 323 S.W.3d at 899-900,.,n. 14

(citing Tibbs^ 457 U.S. at 38 n.ll, 102 S.Ct. 2211). Tibbs mandated that evi

dentiary sufficiency reviews were to be conducted under Jackson v. Virginia,

and that matters concerning the "weight of the evidence" were to be conducted

under a different standard of review. The long line of the Clewis line of cas

es calls into question the correctness of this Court's Brooks rationale and its

conclusion that now, both prongs of an evidence inquiry — its legal sufficien

cy and its weight — are to be reviewed Only under Jackson v. Virginia, instead

of the two-pronged review utilizing both, Jackson and Tibbs.

Why did the Supreme Court of the United States determine that the weight

of the evidence was to be reviewed under a different standard that reviews con

cerning the evidence's legal sufficiency? The due Process Clauses of the Texas

and United States constitutions requires that every criminal conviction is_to

be supported by evidence that arational trier of fact could accept as being

sufficient to prove all of the elements of. the charged offense beyond a reason

able doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068 (1970); Fisher

v. State, 851 S.W.2d 298, 302 (Tex.Crim.App. 1993);;fsea also TEX. PENAL CODE

-2-
ANN. §2.01 (Vernon 2009); Ward v. State, 143 S.W.3d 271, 274 (Tex.App.-Waco__20-

04, pet. ref'd). Under the Due Process Clauses, the task of a reviewing court

is to consider all of the evidence in the light most favorable to the verdict,

and determine if any rational trier of fact could have found beyond a reasona

ble doubt, all of the essential elements of the offense. See Jackson v. Vir

ginia, 443 U.S. at 319, 99 S.Ct. 2781; Sanders v. State, 119 S.W.3d 818 (Tex.

Crim.App. 2003); Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex.Crim.App. 2000).

Reviewing courts are not fact-finders, the role of the courts is that of a Due

Process safeguard, ensuring';,; only the rationality of the trier of fact's find

ing of the essential elements of the offense beyond a reasonable doubt. See

Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). "If, based onall

the evidence, a reasonably minded jury must necessarily entertain a reasonable

doubt of the defendant's guilt, due process requires that we reverse and order

a judgment of acquittal." Fisher, 851 S.W.2d at 302 (quoting Narvalz v. State,

840 S.W.2d 415, 423 (Tex.Crim.App. 1992); see also Guevara v. State, 152 S.W.3d

45, 49 (Tex.Crim.App. 2004). The sufficiency of the evidence is determined, from

the cumulative effect of all the evidence; each fact in isolation need not es

tablish the guilt of the accused. See.Alexander v. State, 740 S.W.2d 749, 758

^Tex.Crim.App. 1987); Roberson v. State, 16 S.W.3d 156, 164 (Tex.App.-Austin

2000, pet. ref'd). In analyzing achallenge to the legal sufficiency of the

evidence, a reviewing court does not reevaluate, disregard, or weigh the evi

dence. See King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); Rodriguez

v. State, 939 S.W.2d 211, 218 (Tex.App.-Austin 1997, no pet.). The jury, as

*he trier;of fact, is the sole judge of the credibility of the witnesses and of

the weight to be given the testimony and may accept or reject all or any part

of awitness' testimony. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.

App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996); Sharp v.

State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); Williams v. SUte, 692 S.W.2d

671, 676 (Tex.Crim.App. 1984). The verdict may not be overturned unless it is

-3-
irrational or unsupported by proof beyond a reasonable doubt. See Matson v.

State, 819 S.W.2d 839, 846 (Tex.Crim.App. 1991); Ware v. State, 62 S.W.3d 344,

349 (Tex.App.-Fort Worth 2001, pet. ref'd).

But a review to determine whether a jury accorded the correct and proper

weight to the evidence, in regard to a fact of consequence, is an entirely dif

ferent matter. This is because in some situations the jurors do not know what

weight is to be given to certain types or classes of evidence); and that is why

the Supreme Court had held that when matters concerning the evidentiary weight

arise (i.e., its factual sufficiency), the appellate court may be drawn into

questions .of reliability and credibility. See Tibbs v. Florida, 457 U.S. at 38

n.ll, 102 S.Ct. 2211. In evaluating all of the evidence, a court must consider

all of it, rightly or wrongly admitted, that the fact finder was permitted to

consider. See Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001); Dew

berry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999); Garcia v. State, 919

S.W.2d 370, 378 (Tex.Crim.App. 1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex.

Crim.App. 1993). The standard of review concerning the weight of the evidence

is the same for both direct and circumstantial evidence. See Guevarra, 152 S.W.

3d at 49; Green v. State,.840 S.W.2d 394, 401 (Tex.Crim.App. 1992). A jury may

not reasonably infer an ultimate fact from meager circumstantial evidence, none

more probable than another. See Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387,

392 (Tex. 1997). With regard to the weight of the evidence in circumstantial

evidence cases, one inference cannot be based upon another inference to reach a

conclusion or to sustain a conviction. See United States v. Schorr, 462 F.2d

953, 959 (5th Cir. 1972); Williamson v. State, 156 Tex.Crim. 520, 244 S.W.2d 202,

204 (1951); Lee v. State, 152 Tex.Crim. 401, 214 S.W.2d 619, 622 (1948). The

stacking of one inference upon another is not considered to be evidence. Mara

thon, Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003); Citizens National. Bank

v. Allen Rae Investments, Inc., 142 S.W.3d 459, 482 (Tex.App.-Fort Worth 2004,

no pet.Xopinion on reh'g). Proof that amounts to only astrong suspicion or a

-4-
mere probability of guilt is insufficient to sustain a conviction. See Urbano

v. State, 837 S.W.2d 114, 116 (Tex.Crim.App. 1992); In re J.M.CD., 190 S.W. 3d

7,79, 781 (Tex.App.-El Paso 2006, no pet.); Hall v. State, 86 S.W.3d 235 (Tex.

App.-Austin 2002, pet. ref'd); Grant v. State, 989 S.W.2d 428, 433 (Tex.App.-

Houston [14th Dist.j 1999, no pet.). If circumstantial evidence provides noth

ing more than a suspicion, the jury is not permitted to reach a speculative

conclusion. See Louis v. State, 159 S.W.3d 236, 246 (Tex.App.-Beaumont 2005,

pet. ref'd). The weight that is to be accorded evidence under the Tibbs' stan

dard is a question.of law that permits an inquiry into the evidence's factual

sufficiency. See .457 U.S. at 42, 102 S.Ct. 2211 (under a factual sufficiency

review, the reviewing court views the evidence in a "neutral light" where the

court is.not required to defer to the jury's credibility and'weight determina

tions).

If cases such as the foregoing are to be reviewed only for legal suffici

ency under Jackson v. Virginia only, then the chance is very great that there

will be an awful lot of defendants who will remain in prison because the Texas

justice system will have failed them where the jury had given great weight to

evidence that should have been accorded very little weight, or none at all, but

it was evidence that was legally sufficient under Jackson. An example of cases

in this category would be those in which DNA later proves the defendant was in

nocent of the crime; but he had been convicted, and his conviction affirmed on

appeal, because the evidence convicting him had been legally sufficient. If it

were not for Chapter 64 of the Code of Criminal Procedure, there are many that

would still be confined in prison, with the exception, that is, of those who

would have already been executed for a crime they had not committed. It is the

factual sufficiency standard that is the only means available to defendants for

which DNA testing is not an option or is unavailable. In these circumstances,

the courts have an affirmative duty — the conviction must be overturned and an

order of acquittal entered. Tibbs v. Florida, 457 U.S. at 41, 102 S.Ct. at 2218.

-5-
The Court of Criminal Appeals' Brooks holding is internally contradictory

and is inconsistent with, and contrary to, the Supreme Court's Tibbs holding.

First, the Brooks Court rationalizes that the legal-sufficiency standard of

Jackson is "indistinguishable" from the factual-sufficiency standard of Tibbs.

Brooks, 323 S-.W.3d at 901 (emphasis added).' But then, throughout the Brooks

opinion, the Court points out those very important areas of difference underly

ing the Supreme Court's reasons for holding that the fact-finders were not to

be accorded deference when reviewing the evidence's factual-sufficiency or its

weight. The Court of Criminal Appeals has essentially chunked binding Supreme

Court precedent into the toilet, and the Court's action should be reconsidered.

CONCLUSION

The Court of Criminal Appeals has discarded the factual sufficiency stan

dard that had been premised upon the Supreme Court's Tibbs v. Florida decision,

and has chosen to retain ONLY the Supreme Court's Jackson v. Virginia legal

sufficiency standard. So as to prevent any occurrences of manifest injustices,

i.e., incarcerating persons who are actually innocent, the Court should revisit

not only Brooks, but Clewis and its entire progeny of cases. After a thorough

analysis, this Court should determine that the factual-sufficiency, weight-ofthe-evidence standard, should be' restored.

PRAYER FOR RELIEF

Petitioner Jamarios Canton prays this Honorable Court will conclude that

it was error for the factual sufficiency, weight-of-the-evidence, standard.not

to be applied by the Court of Appeals when reviewing his case, as required_by

justice; and will order that the issue be briefed and submitted to the Court of

Criminal Appeals. Alternatively, the Court should find it appropriate to dis

pose of this case by sending it back to the Court of Appeals to reconsider the

factual sufficiency question under a proper application of the Tibbs v. Florida

standard.

Respectfully submitted,

-f>-
And to:

&/IARIOS L. CANTON, Petitioner

*6bertson Unit, TDCJ No. 1771951

12071 FM 3522

Abilene, Texas 79601

VERIFICATION BY UNSWORN DECLARATION

I, Jamarios L. Canton, TDCJ-CID No. 1771951, being presently incarcerated

at the Robertson Unit of the Correctional Insitutions Division of the Texas De

partment of Criminal Justice, located in Jones County, Texas, declares under

penalty of perjury that the foregoing is true and correct.

EXECUTED on this, the TWENTY-FIRST day of MARCH, 2013.

\AjA**arJ>JJnL/ (yd^^^jertrJ

JAMARIOS L. CANTON

CERTIFICATE OF SERVICE

I, Jamarios L. Canton, Petitioner pro se, do hereby certify that a true

and correct carbon copy of the above and foregoing PETITION FOR DISCRETIONARY

REVIEW, has been served on the following individuals by regular U.S. Postal

Service first class mail, by depositing same enclosed in a postpaid, properly

addressed wrapper, into the prison's internal Legal Mail System, under the Pri

son Mailbox Rule, on the TWENTY-SECOND day of MARCH, 2013, addressed to:

Ms. Nicole Lostracco, Esq. Nacogdoches County District Attorney s Office

Nacogdoches County Courthouse

101 West Main Street, Suite 250

Nacogdoches, Texas 75961

State Prosecuting Attorney

Court of Criminal Appeals Building

P.O. Box 12405 -- Capitol Station

Austin, Texas 78711-2405

JAMARIOS L. CANTON

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A P ? E N D I X

-8-
NO. 12-12-00118-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS .

JAMARIOS LECHRISTOPHER CANTON, § APPEAL FROM THE 145TH

APPELLANT

v> § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,

APPELLEE § NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION

Jamarios LeChristopher Canton appeals his conviction for aggravated as

sault with adeadly weapon. In his sole issue on appeal, he alleges that the

evidence is legally and factually insufficient to support the iury's guilty

verdict, we affirm.

BACKGROUND

On January 10, 2012, in the early morning hours, the Nacogdoches Police

Department (NPD) received a911 call from awoman who said that she had been

stabbed and that the assault occurred in the 1000 block of First Street in Nac

ogdoches, Texas. Several officers from the NPD, including Corporal Charles

Cain, responded and located awoman on the ground lying in apool of blood. The

victim, Tone Curl, appeared to be fading in and out of consciousness. When she

was asked who had "done this," she responded with the name "Chris/1 Police lo

cated the handle to aknife on the ground near the victim. After the victim

was rolled over, the police found the blade to the knife underneath where she

had been laying.

During the investigation. Corporal Cain received information from Appel

lant's mother, saying that he was in anearby housing project.and that, accord

ing to Corporal Cain, Appellant said
he was "waiting there for officers to come and kill him basically." From a

separate caller, NPD received information that Appellant was obtaining a ride

back to the scene. When Appellant arrived, they noticed that he appeared to be

under the influence of a narcotic, that he was aggressive, and that he was un

able to answer any questions. The officers visually observed that Appellant's

clothes and shoes were covered, in blood, and that his hands were "caked" in

blood, but he did not appear to have any wounds himself. Since he was not co

operative, could not answer questions, and did not appear to understand his

rights as they were read to him, the police arrested him based on their obser

vations. While the police were making the arrest., Appellant voluntarily said

bo the officers, "Made me do it." Appellant was later charged and indicted for

the offense, which was enhanced due to a prior offense he had committed.

Darren Martin is a twenty-three year old family friend of Appellant and

his mother who often stayed overnight at the home. Martin testified that he

and Appellant were at the home of Appellant's mother on the night of the as

sault. Curl, an acquaintance of Appellant's mother, went to the home to dis

cuss whether Appellant's mother knew the whereabouts of the mother's sister,

who was Curl's close friend.1 Martin told Curl that Appellant's mother was not

home and he thought Curl left. Martin testified that Appellant was no longer

in the living room at that point, but that he believed he was still inside the

home. Martin went to another room, and when he came back, he could see,

through the screen door, that Appellant was outside sitting or standing next to

the victim as she lay moaning on the ground. Martin stated that he was scared

and in shock. Appellant entered the home, grabbed Martin, and held him on his

lap, saying that he "wasn't going to go down for this, like, by his self."

Martin's uncle, Cory Flemon, who also knew Appellant, testified that he

happened to be driving by the scene when he saw Appellant making stabbing mo

tions, and kicking and stomping on something. Flemon testified that Appellant

looked up, saw him, and then ran into the home. Flemon, who was concerned for

his nephew's safety, exited the car and gave chase. He entered just as Appel- .

Curl testified that she had never met Appellant.
lant indicated that he would not be "going down" for this by himself. Flemon

grabbed'Martin, and told him to leave and call 911. Martin left to find Appel

lant's mother, but never called 911. Flemon also left, but did not call 911

because he was afraid that he would be falsely accused of the crime due to his

own criminal history. Although she did not know Appellant, the victim testi

fied that as she was being attacked, she learned the name of her assailant be

cause she heard the peron later identified as Martin saying, ''Stop it, Chris.

Stop it." A Texas Department of Public Safety (DPS) DNA analyst testified that

she tested blood samples found on Appellant's clothes and shoes, which showed

that the blood belonged to Curl.

The jury found Appellant guilty of the offense, and the enhancement to be

true, and assessed a sentence of imprisonment, for life. This appeal followed.

SUFFICIENCY OF THE EVIDENCE

In his sole issue, Appellant argues that the evidence is insufficient to

support the jury's guilty verdict because the State failed to prove that he was

the perpetrator of the assault on Curl.^

Standard of Review t

Under the single sufficiency standard, we view the evidence in the light

most favorable to the verdict and determine whether any rational trier of fact

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, 2789, 61 L.Ed.2d 560

(1979); see also Brooki V. StatO, 323 S.W.3d 893, 899 (Tex.Crim.App. 2010). We

defer to the trier of fact's responsibility to resolve conflicts in testimony,

weigh evidence, and draw reasonable inferences from basic facts to ultimate

facts. Jackson, 443 U.S. at 319, 99 S.Ct. at. 2789. "A court faced with a re

cord of historical facts that supports conflicting inferences must presume—

2Appellant invokes both legal and factual sufficiency review of the evidence. The lexas

Court of Criminal Appeals has held that the legal sufficiency standard enunciated in Jb&soi v.

VUxWfl, 443 U.S. 307, 99 S.Ct. 2781, 61 L. Si. 2d (1979), is the oily standard a reviewing court

drxild apply in determinire vhether the evidence is sufficient to support each elflrentof a crimi

nal offense that the state is required to prove beyund a reasonable doubt. See aooics v. State,

323 S.W.3d 893, 894-95 (Tex.Crim.Acp. 2010)(plurality op.). Vfe will review the evidence under the

Jackson standard. _-,
even if it does not affirmatively appear in the record—that the trier of fact

resolved any such conflicts in favor of the prosecution...." Id., 443 U.S. at

326, 99 S.Ct. at 2793. Appellate courts do not reevaluate the weight and cred

ibility of the evidence; they only ensure that the iury reached a rational de

cision. Laster V. State, 265 S.W.3d 512, 517 (Tex.Crim.App. 2009).

Eech fact need not scint directlv and independently to the guilt of the

appellant, as lone as the cumulative force of all'the incriminating circumstan

ces is sufficient to support the conviction. Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct evi

dence in establishing the guilt of an actor, and circumstantial evidence alone

can be sufficient to establish guilt. Id.

Applicable Law

A person is guilty of aggravated assault if he intentionally, knowingly,

or recklessly causes serious bodily iniury to another or uses or exhibits a

deadly weapon during the commission of the assault. TEX. PENAL CODE ANN. §§

22.01(a)(1), 22.02(a) (West .2011). The state is required to prove beyond a

reasonable doubt that the accused is the person who committed the crime char

ged. JohtlSon V. State, 673 S.W.2d 190, 196 (Tex.Crim.App. 1984). The identity

of a perpetrator in an assault case may be proven by either direct or circum

stantial evidence. See EarIs V. State, 707 S.W. 2d 82, 85 (Tex.Crim.App. 1986)

(en banc). The -jury may use its common knowledge and experience to make infer

ences in determining whether the evidence establishes the defendant as the per

petrator of the alleged crime. See Roberson V. State, 16 S.W.3d 156, 167 (Tex.

App.-Austin 2000, pet. ref'd)("[l]dentity may be proven by inferences."); Clark

V. State, 47 S.W.3d 211, 214 (Tex.App.-Beaumont 2001, no pet.)(same) Jones V.

State, 900 S.W.2d 392, 399 (Tex.App.-San Antonio 1995, writ ref'd)(explaining

that the jury may use common sense and apply common knowledge, observation, and

experience gained in ordinary affairs of life when giving effect to inferences

that may reasonably be drawn from evidence). It is up to the fact finder to

decide which inferences is most reasonable. Laster, 275 S.W.3d at 523; Hooper,

214 S.W.3d at i4. '

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"When there is no direct evidence of the perpetrator's identity elicited

from trial witnesses, no formalized procedure is required for the State to

prove the identity of the accused." Clark, 47 S.W.3d at 214. Moreover, circum

stantial evidence is not subject to a more rigorous standard of review than di

rect evidence, and "[f]or purposes of proving guilt beyond a reasonable doubt,

direct and circumstantial evidence are equally probative." Id.

Discussion

Appellant argues that the victim never specifically identified his as her

assailant, and that there were other men named "Chris" who could have been the

assailant but were never investigated. He also contends that Martin's testimony

is inconsistent with the victim's testimony and should be discredited. Moreover

he argues that Martin and Flemon behaved suspiciously by fleeing the scene and

failing to call 911.

First, the victim is not required to make a positive identification of

the defendant as the perpetrator of the alleged offense so long as other direct

or circumstantial evidence of his identity exists. See Gardner V. State, 306

S.W.3d 274. 285 (Tex.Crim.Ann. 2009)(noting that eyewitness testimony implica

ting the defendant is not necessarily required to support aconviction).

Next. Detective Scott Weems testified that the police had been made aware

of other individuals named Chris who were associated with the house, but the

police remained focused on Appellant, and never investigated the information.

This was because the Appellant, who went by the name of "Chris," arrived at the

scene with blood all over him, acting aggressively, and said, "Made me do it."

Additionally, Detective Weems testified that Martin never mentioned Cory Fle

mon 's presence at the scene that night to law enforcement. Moreover, no blood

was discovered on Martin or on any of the furniture inside the residence, even

though Appellant went back inside the home after the attack. Appellant contends

that since there was blood on his clothes, shoes, and hands, there should have

been a transfer pattern inside the home or on the couch where he held Martin.

Appellant infers from the absence of blood, coupled with their failure to call

911, that Martin and Flemon must not be telling the truth. Appellant contends

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that the blood evidence was iust as consistent with the theory that he attemp

ted to aid the victim, and that the person saying "Stop it, Chris," was the ac

tual assailant, who said those words to Appellant as he tried to help the vic

tim. As we have stated, it is for the iury to resolve conflicts in testimony,

weigh evidence, and draw reasonable inferences from the evidence. Jackson, 443

U.S. at 319, 99 S.Ct. at 2789. Therefore, it was for the jury to decide whether

Martin's and Flemon's testimony was credible, whether they took part in the as

sault, and what weight should be attributed to the police's alleged failure to

investigate other individuals named Chris who may have had a connection to the

assault.

Viewing the evidence in the light most favorable to the iury's verdict,

the evidence shows that Appellant returned to the scene shortly after police

arrived. His clothes were covered in Curl's blood. The victim stated that she

overheard Martin say that a man named "Chris" was her assailant. Appellant goes

by the name of "Chris." While detained by police. Appellant, who appeared to be

under the influence of narcotics, said, "Made me do it." Martin and Flemon both

testified that Appellant said he "wasn't going down for this" by himself. Fle

mon testified that he observed Appellant making stabbing motions in the front

yard. Martin stated that he saw Appellant standing or sitting beside the victim

and he knew something terrible had iust occurred. In fact, the testimonies ofMartin and Flemon were largely consistent. Bsed on this evidence, the iury

could have reasonabvly concluded that Appellant was the perpetrator of the as

sault against Curl. Consequently, the evidence is sufficient to support the iu

ry's finding of guilt.

Appellant's sole issue is overruled.

DISPOSITION

Having overruled Appellant's sole issue, we affirm the Judgment of the

trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered December 20, 2012.

Banel consistedof Wbrthai. C.J.. Griffith, J., ad Hoyle, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDO MINT

DECEMBER 20, 2012

NO. 12-12-00118-CR

JAMARIOS LECHRISTOPHER CANTON,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 145th Judicial District Court

of Nacogdoches County, Texas. (Tr.Ct.No. F1017409)

THIS CAUSE came to be heard on the appellate record and briefs

filed herein, and the same being considered, it is the opinion of this court

that there was no error in the iudgment.

It is therefore ORDERED, ADJUDGED.and DECREED that the judgment

of the court below be in all things affirmed, and that this decision be certi

fied to the court below for observance.

James T. Worthen, Chief Justice.

fenel consisted of Ubrthen, C.J., Griffith, J., and Hoyle, J.