Evans v. State
| Decision Date | 28 March 2014 |
| Docket Number | No. 05-12-01179-CR,05-12-01179-CR |
| Parties | DERICK DEWAYNE EVANS, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
AFFIRM; and Opinion Filed March 28, 2014.
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Before Justices Bridges, Fillmore, and Lewis
Opinion by Justice Lewis
On the Court's own motion, we withdraw our opinion issued January 31, 2014 and vacate our judgment of that date. The following is now the opinion of the Court.
A jury found appellant Derick Dewayne Evans guilty of engaging in organized criminal activity, based on an underlying offense of gambling promotion, and assessed appellant's punishment at confinement for two years. Subsequently, that sentence was suspended; appellant was placed on community supervision for two years and ordered to pay a fine of $10,000. Appellant raises nine issues on appeal. We affirm the trial court's judgment.
Background
Appellant was charged by indictment with the offense of engaging in organized criminal activity based on a raffle drawing he organized to benefit his political campaign. Appellantpleaded not guilty and proceeded to trial before a jury in November 2011. After the 2011 trial ended with a hung jury, a second trial before a jury was held in June 2012. The second trial ended with a jury finding appellant guilty as charged. Appellant filed two motions for new trial, both of which were overruled by the trial judge. Appellant also sought a writ of mandamus from this Court regarding his suspension from office which we denied.1 Now appellant appeals the trial court's judgment.
Sufficiency of the Evidence
In his first issue, appellant argues the evidence was legally insufficient to support his conviction for engaging in organized criminal activity. He argues the State failed to prove beyond a reasonable doubt that appellant, knowingly for gain, committed the offense of gambling promotion or that there was a group that intended to work together in a continuing course of criminal activities. Appellant contends the State failed to prove he (1) "distributed prizes by chance to persons who paid consideration for a chance to win anything of value" and (2) "was a part of a combination of three or more people whose purpose was to promote an illegal lottery." We have reviewed the evidence and conclude that it is sufficient to support appellant's conviction.
The State charged appellant with engaging in organized criminal activity, based on the underlying offense of gambling promotion. In pertinent part, the indictment charged as follows:
When reviewing the legal sufficiency of the evidence, we apply well-established standards. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). We view the evidence in the light most favorable to the jury's verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Wise, 364 S.W.3d at 903. The trier of fact is responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319.
A person commits the offense of gambling promotion "if he intentionally or knowingly . . . for gain, sets up or promotes any lottery or sells or offers to sell or knowingly possesses for transfer, or transfers any card, stub, ticket, check, or other device designed to serve as evidence of participation in any lottery." TEX. PENAL CODE ANN. § 47.03(a)(5) (West 2011). A person commits the offense of engaging in organized criminal activity "if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit . . . any gambling offense punishable as a Class A misdemeanor." Id. § 71.02(a)(2) (West Supp. 2013). "Combination" means three or more persons who collaborate in carrying on criminal activities. Id. § 71.01(a) (West 2011). "Conspires to commit" means that a person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement. Id. § 71.01(b) (West 2011). An agreement constituting conspiring to commit may be inferred from the acts of the parties. Id.
Gambling Promotion
We begin with appellant's assertion that the evidence was insufficient to prove he distributed prizes by chance to persons who paid consideration for a chance to win anything of value. The record reveals appellant's Campaign Finance Report for the period July 1, 2007 through December 31, 2007 lists political contributions from the sale of "raffle tickets" and political expenditures for "raffle prizes." Multiple witnesses testified that while employed under appellant in 2008, they were called out of a morning briefing meeting in groups; each was given 50 raffle tickets and told to sell them. Lieutenant Tracey Gulley and Sergeant Kelvin Holder were distributing tickets in the precinct parking lot, one reading aloud the ticket numbers and distributing tickets while the other wrote down each officer's name along with the ticket numbers they were given. The tickets contained the following language:
Support Constable Derick Evans
1st Prize An XBOX 360(60G) Pro System
2nd Prize A Sony PSP
3rd Prize A (2G) MP3 Player
Drawing to be held Saturday, December 20, 2008 (Need not be present to win)
Paid for by Derick Evans Campaign Fund, Joe E. Bagby Treasurer
$5.00 Donation, Thank You for Your Support.
Witnesses testified that during detail one morning, appellant referenced the selling of the raffle tickets and exclaimed, "as much as he had done for them, they should be able to do something for him in return." Several officers testified they sold all the tickets they could and then bought the remainder themselves. The officers reported they turned in their ticket proceeds to Gulley in her precinct office and she checked off their names from the distribution list. Consistent with the officers' testimony, appellant's Campaign Finance Report for the period July 1, 2007 through December 31, 2007 lists several officers' names as contributors showing they contributed $250 toward appellant's campaign. On December 20, 2008, the precinct held a Christmas party atwhich time appellant drew three raffle ticket stubs out of a bag and awarded the three prizes listed on his Campaign Finance Report for the period July 1, 2007 through December 31, 2007 as "raffle prizes." The testimony consistently reveals tickets were only given to people who paid $5.00 for a ticket. Also, the testimony consistently reveals the drawings for the prizes were purely by chance and the only ticket stubs in the bag at the time of the drawings were stubs from the raffle tickets sold.
Nevertheless, appellant argues his purpose of selling the tickets was to raise funds for his campaign, not to promote a gambling business. The State responds that appellant, in essence, is requiring proof of motive, which though it may be "always relevant, it is never essential." See Loudres v. State, 614 S.W.2d 407, 411 (Tex. Crim. App. 1980). We question whether the State had to prove appellant's purpose or motive behind selling the tickets was anything other than "for gain" as required by the statute. See TEX. PENAL CODE ANN. § 47.03(a)(5). But even if the State was required to show purpose or motive, there was sufficient evidence. First, the tickets themselves prominently identified prizes to be awarded by drawing as an incentive for purchasing a ticket. Further, Norvis Harmon testified that appellant justified the high price of the ticket based on the value of the prizes to be won. Moreover, several officers testified that people who purchased the tickets were purchasing the chance to win a prize. Appellant reported the proceeds from the sale of the tickets on his Campaign Finance Report and deposited the proceeds into his campaign checking account which satisfies the "for gain" requirement in the statute. See id. From these facts, a jury could reasonably infer the main purpose of selling the raffle tickets was to induce people to pay for a chance to win a prize.
Appellant also argues the public's motive when purchasing the tickets was to support appellant's campaign and not a chance to win a prize. Appellant complains the State failed to produce testimony from a single person that the reason for purchasing a donation ticket was forthe chance to win a prize. The State responds that witnesses for the appellant testified they sold tickets to people who were paying money for the opportunity to win a prize. And again, the tickets themselves promoted the chance to win an MP3 player, PSP system, or X-Box 360. While this evidence was not directly from a member of the public who purchased a ticket, circumstantial evidence is as probative as direct evidence and can alone be sufficient to establish guilt. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). From these facts, a jury could reasonably infer the main purpose of purchasing the raffle tickets was to pay money for a chance to win a prize.
Appellant's contention that the evidence is insufficient to support...
To continue reading
Request your trial