# 673-/5

IN THE 

# COURTOFCRIMINALAPPEALSOFTEXAS ORIGINAL

JAMARIOS LEGHRISTOPHER CANTON, FILED IN COURTOF CRIMINALAPPEALS

-vs03 2015 THE STATE OF TEXAS,

. t _. , AbelAcosta, 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-PetitionerTABLE 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 OFREVIEW•• 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 OFAPPEALS

— TYLER, TEXAS 

### Mot Reported in S.W.3d, WL , Tex.App. LEXIS JUDGMENT OF THE TWELFTH COURT OFAPPEALS

— December 20, 2012INDEX 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 

### Greenv. 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.-ElPaso 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 Kingv. 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 

### Sharpv. 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 Wardv. State, 143 S.W.3d 271 (Tex.App.-Waco 2004) 3 

### Ware v. State, 62 S.W.3d 344 (Tex.App.-FortWorth 2001) 4 Williams v. State, 692 S.W.2d 671 (Tex.Crim.App. 1984) 3 

### Williamsonv. 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 Jacksonv. Virginia, 443 U.S. 

### 307, 99 S.Ct. 2781 (1979), and this Court's intendedpurposes 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 attorneywho briefed the 

### appeal in tha court below, to participate on Petitioner's behalf inpresenting
oral argument.

JAMARIOS L. CANTON

-IV-STATEMENT OF THE CASE Petitioner Jamarios Canton ("Canton") was indicted onFebruary 19, 2010, 

### for one count of aggravated assault with adeadly 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 attemptedrobbery in 1995. The case was called for trial on February 27, 2012, at which time both sides were present and_an

### nounced ready for trial, and ajurywas then selected and empaneled. Trial be 

### gan onMarch 5, 2012, and after all of the evidencehadbeenpresented, and the 

### prosecution:, and defense, closedandrested, the jury found Cantonguilty the next day, onMarch 6, 2012. That same day, the juryheard evidence andargu 

### ment onpunishment. The jury'sverdict 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, overrulingCanton's sole issueheurgedonappeal, whichwas that the evidencewas legallyand factually insufficient to support aguiltyverdict and 

## rejected Canton's factually insufficientground inlight ofBrooksv. State, 323 S.W.3d 893 (Tex.Crim.App. 2010)(plurality op.)(holding that the legal suf 

### ficiency standardenunciated inJacksonv. Virginia is the only standard that a reviewing court shouldapply indeterminingwhether the evidence is sufficient 

### to support each element of acriminal offense that the state is required to prove beyond areasonable doubt). STATEMENT OP PROCEDURAL HISTORY 

### This case was tried in the 145thJudicial District Court of Nacogdoches 

## County, Texas, before theHonorable Campbell Cox, II, inwhichaguiltyverdict was returnedby the juryonMarch6, 2012. Following theverdict onguilt, the 

## jury sentencedCantonto lifeimprisonment intheTDCJ. Cantonthenperfec-

-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; andhis 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 hadbased 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 Jacksonv. Virginia; whereas (2), "factual insufficien 

### cy" challenges were to be reviewed under Tibbs V. Florida as achal 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?

-1-ARGUMENT AND AUTHORITIES In Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996), this Court had 

### authorized atwo-pronged reviewof evidence utilizingJacksonv. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979), when examining the legal sufficiency of the evi 

### dence, andTibbs v. Florida, 457 U.S. 31, 102 S.Ct.. 2211 (1982), for review of the weight of the evidence. This evidentiary standard of reviewhas 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 tobe conductedunderJacksonv. Virginia, and that matters concerning the "weight of the evidence" were to be conducted 

### under adifferent 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 tobe reviewedOnlyunderJacksonv. Virginia, instead of the two-pronged review utilizing both, Jackson andTibbs. Why did the Supreme Court of the United States determine that theweight of the evidence was to be reviewed under adifferent 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 couldaccept as being sufficient to prove all of the elements of. the charged offense beyond areason 

### able doubt. See InreWinship, 397 U.S. 358, 364, 90 S.Ct. 1068 (1970); Fisher v. State, 851 S.W.2d 298, 302 (Tex.Crim.App. 1993);;fseaalsoTEX. PENALCODE

-2-ANN. §2.01 (Vernon 2009); Wardv. State, 143 S.W.3d 271, 274 (Tex.App.-Waco__20- 04, pet. ref'd). Under the Due Process Clauses, the task of areviewing 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 areasona 

### ble doubt, all of the essential elements of the offense. See Jacksonv. Vir 

### ginia, 443 U.S. at 319, 99 S.Ct. 2781; Sandersv. State, 119 S.W.3d 818 (Tex. Crim.App. 2003); Cardenasv. 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 aDue 

### Process safeguard, ensuring';,; only the rationality of the trier of fact's find ing of the essential elements of the offense beyond areasonable doubt. See 

### Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). "If, based onall the evidence, areasonably minded jurymust necessarily entertain areasonable doubt of the defendant's guilt, due process requires that we reverse and order 

### ajudgment of acquittal." Fisher, 851 S.W.2d at 302 (quotingNarvalz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992); see also Guevarav. 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.Alexanderv. 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). Inanalyzing achallenge to the legal sufficiencyof the evidence, a reviewing court does not reevaluate, disregard, orweigh 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, nopet.). The jury, as *he trier;of fact, is the sole judge of the credibilityof thewitnesses and of 

### the weight tobegiven the testimonyandmay accept or reject all oranypart 

### of awitness' testimony. SeeMargravesv. State, 34 S.W.3d 912, 919 (Tex.Crim. 

## App. 2000); Jonesv. State, 944 S.W.2d642, 647 (Tex.Crim.App. 1996); Sharpv. State, 707 S.W.2d611, 614 (Tex.Crim.App. 1986); Williamsv. SUte, 692 S.W.2d 671, 676 (Tex.Crim.App. 1984). Theverdictmaynotbeoverturnedunless it is

-3-irrational or unsupported by proof beyond areasonable doubt. See Matsonv. 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 hadheld that whenmatters concerning the evidentiaryweight arise (i.e., its factual sufficiency), the appellate court may be drawn into 

### questions .of reliability andcredibility. SeeTibbsv. Florida, 457 U.S. at 38 n.ll, 102 S.Ct. 2211. In evaluating all of the evidence, acourt must consider all of it, rightly orwrongly admitted, that the fact finder was permitted to consider. See Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001); Dew 

### berryv. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999); Garciav. State, 919 

### S.W.2d 370, 378 (Tex.Crim.App. 1994); Johnsonv. State, 871 S.W.2d 183, 186 (Tex. Crim.App. 1993). The standard of reviewconcerning theweight of the evidence is the same for bothdirect and circumstantial evidence. See Guevarra, 152 S.W. 

### 3d at 49; Greenv. State,.840 S.W.2d 394, 401 (Tex.Crim.App. 1992). Ajurymay not reasonably infer anultimate fact frommeager circumstantial evidence, none 

## moreprobable thananother. SeeHammerlyOaks, Inc. v. Edwards, 958 S.W.2d387, 392 (Tex. 1997). With regard to the weight of the evidence in circumstantial evidence cases, one inference cannot be basedupon another inference to reacha 

### conclusion or to sustain aconviction. See UnitedStatesv. Schorr, 462 F.2d 

## 953, 959 (5thCir. 1972); Williamsonv. State, 156 Tex.Crim. 520, 244 S.W.2d202, 

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

## stackingofoneinferenceuponanotherisnotconsideredtobeevidence. Mara thon,Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003); CitizensNational.Bank v. AllenRae Investments, Inc., 142 S.W.3d 459, 482 (Tex.App.-FortWorth 2004, 

## nopet.Xopiniononreh'g). Proof thatamounts toonlyastrong suspicionora

-4-mere probability of guilt is insufficient to sustain aconviction. See Urbano
v. State, 837 S.W.2d 114, 116 (Tex.Crim.App. 1992); Inre 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 asuspicion, 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 aquestion.of law that permits an inquiry into the evidence's factual sufficiency. See .457 U.S. at 42, 102 S.Ct. 2211 (under afactual 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 

### encyunderJacksonv. Virginia only, then the chance is verygreat that there will be an awful lot of defendants who will remain in prison because the Texas 

### justice system will have failed themwhere the juryhadgiven 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 categorywouldbe those inwhichDNA later proves the defendant was in nocent of the crime; but he had been convicted, andhis conviction affirmed on 

### appeal, because the evidence convictinghim hadbeen 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 

### wouldhave alreadybeen executed for acrime theyhadnot committed. It is the factual sufficiency standard that is the onlymeans available to defendants for which DNA testing is not an option or is unavailable. In these circumstances, 

### the courts have an affirmative duty

— the convictionmust be overturned and an 

### order of acquittal entered. Tibbsv. 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 Jacksonv. Virginia legal 

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

### i.e., incarceratingpersons who are actually innocent, the Court should revisit not onlyBrooks, but Clewis and its entire progeny of cases. After a thorough analysis, this Court shoulddetermine 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 reviewinghis case, as required_by 

### justice; andwill order that the issuebe briefed and submitted to the Court of Criminal Appeals. Alternatively, the Court should find it appropriate to dis 

### pose of this caseby sending itback to the Court ofAppeals to reconsider the factual sufficiencyquestionunder aproper application of theTibbsv. 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, beingpresently incarcerated at the Robertson Unit of the Correctional Insitutions Division of the Texas De 

### partment of Criminal Justice, located inJones County, Texas, declaresunder penalty of perjury that the foregoing is true andcorrect. 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 prose, do hereby certify that a true and correct carbon copy of the above and foregoingPETITIONFOR DISCRETIONARY 

### REVIEW, has been served on the following individuals by regularU.S. Postal Service first class mail, by depositing same enclosed in a postpaid, properly 

### addressedwrapper, into the prison's internal Legal Mail System, under the Pri sonMailbox Rule, on the TWENTY-SECOND day ofMARCH, 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

-7-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 adeadlyweapon. Inhis sole issue onappeal, healleges that the 

### evidence is legally and factually insufficient to support the iury's guilty
verdict, we affirm.
BACKGROUND 

### On January 10, 2012, in the earlymorninghours, theNacogdoches Police 

## Department (NPD) received a911 call fromawomanwho saidthat shehadbeen stabbedand that the assault occurred in the 1000blockof First Street inNac 

## ogdoches, Texas. Several officers fromtheNPD, includingCorporalCharles 

## Cain, respondedand locatedawomanon theground lyinginapoolof blood. The 

## victim, ToneCurl, appearedtobe fadinginandoutofconsciousness. Whenshe was askedwhohad "done this," sherespondedwith thename "Chris/1 Police lo 

## cated the handle toaknife on thegroundnear thevictim. After thevictim 

## was rolled over, thepolice found theblade to theknifeunderneathwhere she
had been laying. 

## During the investigation. Corporal CainreceivedinformationfromAppel 

## lant'smother, sayingthathewas inanearbyhousingproject.andthat, accord ing to Corporal Cain, Appellant saidhe 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 hewas 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 aprior 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 believedhe 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, andheldhimonhis 

### lap, saying that he "wasn't going togo down for this, like, byhis self." Martin's uncle, Cory Flemon, who also knewAppellant, testified that he 

### happened to be drivingby the scenewhenhe sawAppellant making stabbingmo 

## tions, andkickingandstompingonsomething. Flemon testifiedthatAppellant lookedup, sawhim, and thenran into thehome. Flemon, whowas concerned for 

### his nephew's safety, exited thecarandgave chase. He entered justasAppel-
.
Curl testified that shehadnevermetAppellant.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." ATexas Department of Public Safety (DPS) DNAanalyst testified that she tested blood samples found on Appellant's clothes and shoes, which showed that the blood belonged to Curl. 

### The jury foundAppellant guilty of the offense, and the enhancement to be true, and assessed asentence 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 

### couldhave found the essential elements of the crime beyond areasonable doubt. 

### JacksonV. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 

## (1979); seealsoBrookiV. StatO, 323 S.W.3d893, 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 frombasic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at. 2789. "Acourt facedwith are cord of historical facts that supports conflicting inferences must presume— 

### 2Appellant invokes both legal andfactualsufficiencyreviewoftheevidence. Thelexas Court of Criminal Appeals hasheldthatthelegalsufficiencystandardenunciatedinJb&soiv. VUxWfl, 443U.S. 307, 99S.Ct. 2781, 61L. Si.2d(1979), istheoilystandardareviewingcourt 

### drxild applyindeterminirevhethertheevidenceissufficienttosupporteachelflrentofacrimi nal offense that thestate isrequiredtoprovebeyundareasonabledoubt. Seeaooicsv. State, 323 S.W.3d893, 894-95 (Tex.Crim.Acp. 2010)(pluralityop.). Vfewillreviewtheevidenceunderthe Jacksonstandard. _-,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 arational de cision. LasterV. 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. Hooperv. 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 commissionof the assault. TEX. PENAL CODEANN. §§ 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 EarIsV. State, 707 S.W.2d 82, 85 (Tex.Crim.App. 1986) 

### (en banc). The -jurymay use its common knowledge and experience to make infer ences in determiningwhether the evidence establishes the defendant as the per 

### petrator of theallegedcrime. SeeRobersonV. State, 16 S.W.3d 156, 167 (Tex. 

### App.-Austin 2000, pet. ref'd)("[l]dentitymaybeprovenby inferences."); Clark V. State, 47 S.W.3d 211, 214 (Tex.App.-Beaumont 2001, no pet.)(same) JonesV. 

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

### that the jurymayuse common sense andapplycommonknowledge, observation, and experience gained in ordinary affairs of lifewhen giving effect to inferences that may reasonably be drawn from evidence). It is up to the fact finder to decidewhich inferences is most reasonable. Laster, 275 S.W.3dat 523; Hooper, 214 S.W.3d at i4. '

-4-"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 identifiedhis 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 apositive identification of the defendant as the perpetrator of the alleged offense so long as other direct or circumstantial evidence of his identity exists. See GardnerV. State, 306 S.W.3d 274. 285 (Tex.Crim.Ann. 2009)(noting that eyewitness testimony implica 

### ting thedefendant is not necessarilyrequired 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 withblood 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 

### thoughAppellant went back inside the home after the attack. Appellant contends that since there was blood on his clothes, shoes, and hands, there shouldhave been a transfer pattern inside the home or on the couchwhere he held Martin. 

### Appellant infers from the absence of blood, coupledwith their failure to call 911, that Martin and Flemon must not be telling the truth. Appellant contends

-5-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 mayhave 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 sawAppellant 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. BanelconsistedofWbrthai. C.J.. Griffith, J., adHoyle, J. (DO NOT PUBLISH) -6-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 belowbe inall things affirmed, and that this decision be certi fied to the court below for observance. James T. Worthen, Chief Justice. 

### fenelconsistedofUbrthen,C.J.,Griffith,J., andHoyle,J.