Evans v. State, 05-12-01179-CR
| Decision Date | 23 January 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 January 23,2014.
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Before Justices Bridges, Fillmore, and Lewis
Opinion by Justice Lewis
A jury found appellant Derick 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 and 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. Appellant pleaded 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 evidence presented at trial is insufficient to prove he distributed prizes to persons who paid consideration for a chance to win anything of value. 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'sverdict 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. at § 71.02(a)(2) (West Supp. 2013). "Combination" means three or more persons who collaborate in carrying on criminal activities. Id. at § 71.01(a) (West 2011). "Conspires to commit" means that a person agrees wth one or more persons that they or one or more of them engage in conduct that would constituite the offense and that person and one or more of them perform an overt act in pursuance of the agreement. Id. at § 71.01(b) (West 2011). An agreement constituting conspiring to commit may be inferred from the acts of the parties. Id.
Gambling Promotion
The record reveals appellant's Campaign Finance Report for the period July I, 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 Holderwere 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 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 at which 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 tickets stubs in the bag at the time of the drawings were stubs from the raffle tickets sold.
Appellant's contention that the evidence is insufficient to support his conviction is without merit. The sufficiency of the evidence must be reviewed in the light most favorable tothe determination made by the finder of fact. Jackson, 443 U.S. at 319; Wise, 364 S.W.3d at 903; see also Smith v. State, 658 S.W.2d 172, 173 (Tex. Crim. App. 1983). The evidence in this case was legally sufficient for the jury to infer that appellant intentionally or knowingly for gain, set up or promoted a lottery; that the purpose and function of the lottery was to induce people to exchange money for a chance to enter the raffle and win one of three prizes listed on the raffle tickets; and that the purpose of exchanging money for the ticket was to enter the raffle. See TEX. PENAL CODE ANN. § 47.03(a)(5).
Organized Criminal Activity
The record also supports the jury's finding that appellant possessed the intent to establish, maintain, or participate in a combination or in the profits of a combination in connection with the gambling offense for which he was convicted. See TEX. PENAL CODE ANN. § 71.02. Specifically, appellant testified he has sold raffle tickets to fund his election campaigns since 2001. He admitted he obtained the tickets himself and left them in his vehicle. He testified he told the Chief Deputy the tickets were in his vehicle and it was unlocked, the following day the tickets were no longer in his vehicle, and he did not know how or to whom they were distributed. Officers testified Gulley and Holder distributed the tickets and made a list of which officers received and sold the tickets. Officer Cooley testified he later saw appellant take the same list out of his desk drawer to verify Cooley had sold his appropriated tickets when approving a request for working an off-duty job. Gulley gathered the ticket proceeds and stubs from the officers. Appellant admitted he was given the ticket sales proceeds by Gulley and appellant deposited those proceeds into his bank account to benefit his campaign. Appellant admits, and the officers testified, that various people distributed and/or sold raffle tickets with the purpose of raising funds for appellant's political campaign. And finally, after receiving the proceeds and ticketstubs, appellant conducted a raffle, drew the ticket stubs from a bag, and awarded prizes to the drawn ticket holders.
We have reviewed the evidence in the light most favorable to the determination made by the finder of fact. See Jackson, 443 U.S. at 319; Wise, 364 S.W.3d at 903; see also Smith, 658 S.W.2d at 173. The evidence in this case was legally sufficient for the jury to infer that appellant possessed the intent to establish, maintain, or participate in a combination or in the profits of a combination; that appellant purchased the raffle tickets and prizes with the intent that other officers would distribute and sell the raffle tickets; that the officers' purpose in distributing and selling the tickets was...
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