Anthony Christopher Merito v. State ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00010-CR
ANTHONY CHRISTOPHER APPELLANT
MERITO
V.
THE STATE OF TEXAS STATE
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FROM COUNTY COURT AT LAW NO. 2 OF WICHITA COUNTY
TRIAL COURT NO. 67354-F
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MEMORANDUM OPINION 1
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Appellant Anthony Christopher Merito raises one issue challenging the
sufficiency of the evidence supporting his conviction for violating a court order
enjoining organized criminal activity. Specifically, Merito asserts that there is no
evidence showing that he knowingly violated an agreed injunction by driving
through a gang-activity “safe zone” and thus there is no evidence that he
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See Tex. R. App. P. 47.4.
knowingly committed the offense of violating an order enjoining organized
criminal activity. We affirm.
BACKGROUND
On or about June 27, 2008, the City of Wichita Falls, Texas filed a petition
for a permanent injunction against the “Puro Lil’ Mafia” gang (PLM) to dissolve
the relationships between members of the PLM and thereby prevent criminal
activity. The petition contained a written description of what the State called,
“PLM Safety Zone #1.” The PLM Safety Zone #1 represented an area in which
individuals named in the petition would be prohibited from engaging in certain
activities described therein. Attached to the petition as exhibit “A” was a map
that purported to be “[a] true and correct representation of the above-described
boundaries.” Merito was named in the petition as a defendant-member of PLM.
Although at the time the petition was filed, Merito was incarcerated in the Lindsey
State Jail, Merito does not dispute that he was served with the petition, which
included the map of the PLM Safety Zone #1 as an attachment.
On or about August 5, 2008, while still incarcerated, Merito signed an
agreed permanent 2 injunction (agreed injunction), which provided in relevant part
that Merito was permanently restrained and enjoined from using the PLM Safety
Zone #1 to engage in a litany of activities. The agreed injunction described the
boundaries of the PLM Safety Zone #1 as follows:
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Although styled as “permanent,” the agreed injunction provided that the
injunction would expire on August 4, 2015.
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Beginning at the intersection of the 2900 block of Wenonah Avenue
and the 3300 block of Kell Boulevard, continuing north along the
west side of Wenonah Avenue to the intersection of the 1900 block
of Wenonah Avenue and the 1000 block of West Wenonah
Boulevard, continuing west on the south side of West Wenonah
Boulevard, then continuing north on the west side of West Wenonah
Boulevard, then continuing east on the north side of West Wenonah
Boulevard, then continuing north on the west side of West Wenonah
Boulevard to the intersection of the 900 block of West Wenonah
Boulevard and the 3300 block of 9th Street,
Thence continuing east on the north side of 9th Street to the
intersection of the 3200 block of 9th Street and the 500 block of
Beverly Drive, continuing northwest and then north and then
northeast on the west side of Beverly Drive to the intersection of the
500 block Beverly Drive and the 3100 block of 5th Street (Seymour
Highway), continuing northeast and then east on the northside of 5th
Street (Seymour Highway) to the intersection of the 1400 block of
5th Street and the 500 block of Broad Street,
Thence continuing northwest on the east side of the 500 block of
Broad to Central Expressway, continuing northwest and then north
and then northwest on the west side of Central Freeway to the
900 block of Central Freeway where it crosses the 1600 block of Old
Iowa Park Road;
Thence at the north side of the 1600 block of Old Iowa Park Road
where it crosses Central Freeway, continuing southeast on the east
side of Old Iowa Park Road to the intersection of the 1400 block of
Old Iowa Park Road and the 1400 block of North Scott Avenue,
continuing southeast on the east side of North Scott Avenue to the
intersection of the 100 block of East Scott Avenue and the 800 block
of East Kell Boulevard, continuing southeast on the east side of East
Scott Avenue and then Scott Avenue and then east and then
northeast on the north side of East Scott Avenue to the intersection
of the 200 block of East Scott Avenue and the 1900 block of East
Fort Worth Street, continuing southeast on the east side of E. Fort
Worth Street to the intersection of the 1400 block of E. Fort Worth
Street and the 1500 block of McKinney Road;
Thence to the east side of 1500 block of McKinney Road, continuing
southeast and then south and then southeast and then east and
then south on the east side of McKinney Road to the intersection of
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the 2700 block of McKinney Road and the 2300 block of Central
Freeway East;
Thence then from the south side of the 2300 block of Central
Freeway East, continuing west on the south side of Central Freeway
East to the Henry S. Grace Freeway, continuing west and then
southwest on the east side of the 3800 block of the Henry S. Grace
Freeway to the 900 block of Midwestern Parkway,
Thence west and then northwest and then west on the south side of
the 1500 block of Midwestern Parkway to the 3600 block of Old
Jacksboro Highway, continuing north on the west side of the
3200 block of Old Jacksboro Highway to the 3200 block of Holliday
Road, continuing north on the west side of the 2700 block of Holliday
Road to the 1500 block of Speedway Avenue, continuing west on
the south side of the 1700 block of Speedway Avenue to the
2500 block of Brook Avenue, continuing north on the west side of
the 2200 block of Brook Avenue to the 1700 block of Kell Boulevard,
continuing southwest on the south side of Kell Boulevard to end at
the intersection of the 3300 block of Kell Boulevard and the
2900 block of Wenonah Boulevard. The boundaries of the “PLM
Safety Zone #1” include and incorporate an area fifty (50) feet from
the furthermost curb line of the boundary.
Following the description of the PLM Safety Zone #1, the agreed injunction
stated that “[a] true and correct representation of the above-described
boundaries of PLM SAFETY ZONE #1 is attached to this Agreed Order as ‘PLM
Safety Zone 1.’” Finally, the agreed injunction provided that by signing, Merito
agreed “that the PLM Safety Zone #1 is a reasonable and understandable
geographic area for this injunction.”
On April 17, 2015—nearly seven years after the trial court entered the
agreed injunction—several of Wichita Falls’s Gang Task Force officers were
eating at a local grocery store when they saw Merito enter the building with a
small child. The officers observed that Merito was wearing black and grey, the
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colors of PLM. Although the grocery store is not in the PLM Safety Zone #1 and
one of the officers acknowledged that Merito did not appear to be engaging in
any criminal activity, the officers waited in the parking lot in an unmarked vehicle
and began following Merito as he left the parking lot. Upon leaving the
restaurant, the officers observed Merito’s vehicle traveling through the PLM
Safety Zone #1. Merito concedes that during this drive he “possibly clipped the
50 foot ‘buffer’ of the injunction zone.” As the officers followed and surveilled
Merito driving through the PLM Safety Zone #1, they observed that his license
plate was obstructed and that he failed to utilize his turn signal when changing
lanes. Eventually, Merito was pulled over, and the officers discovered that his
vehicle was not registered.
On August 14, 2015, an information was filed in Wichita County alleging
that Merito violated the agreed injunction, and thus section 71.021 of the penal
code, by operating a motor vehicle without a license plate or with an obstructed
view or by wearing clothes which Merito knew identified membership with a
criminal street gang within the PLM Safety Zone #1. The information was later
amended to include the allegation that Merito also violated the agreed injunction
by operating a motor vehicle that has not been registered and without financial
responsibility established for the vehicle.
In October 2016, Merito’s case was tried to a jury. At trial, the State called
the deputy district clerk to testify concerning a certified copy of the agreed
injunction, which was labeled as State’s Exhibit “3.” When Merito’s counsel
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questioned the clerk on voir dire, the clerk confirmed that the map was not
attached as part of the district clerk’s file. Upon pointed questioning by the trial
court, the Prosecutor conceded that no map was attached to the agreed
injunction that was filed or served on Merito:
THE COURT: Are you saying that the document that was filed did
not have the map?
[PROSECUTOR]: Yes, your Honor.
THE COURT: And that’s the one that was served upon the
defendant?
[PROSECUTOR]: Yes, your Honor.
THE COURT: Okay, but clearly Judge Brotherton’s order make[s]
reference to a map?
[PROSECUTOR]: Yes.
THE COURT: Okay, but you’re still tendering it into evidence?
[PROSECUTOR]: I’m tendering it into evidence, and just because
it’s missing that map, it does not make it invalid just because a map
is missing.
Over an objection from Merito’s counsel, the trial court admitted the State’s
Exhibit “3” into evidence.
After the State rested, Merito moved for a directed verdict on the specific
ground that the State had failed to introduce any evidence that the map was
attached to the agreed injunction. Merito’s counsel argued that
the order that established the gang injunction makes reference to a
map of the gang safety zone. However, the order that was actuall[]y
entered which is here as Exhibit 3, is an order that does not have the
map attached; therefore, the notice in regard to the safety -- the
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gang safety zone is inadequate as a matter of law actually; and for
these reasons, we move for a directed verdict of a[c]quittal.
The trial court denied the motion, and the jury returned a guilty verdict. The trial
court assessed punishment at 120 days in the county jail, but suspended the
sentence and placed Merito on one year of community supervision.
Merito timely perfected this appeal.
DISCUSSION
In his sole issue, Merito challenges the sufficiency of the evidence
regarding the “knowingly” element of the offense of violating an organized-
criminal-activity injunction.
A. Standard of Review and Applicable Law
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
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 (1979); Jenkins v. State, 493 S.W.3d 583,
599 (Tex. Crim. App. 2016).
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State,
483 S.W.3d 29, 33 (Tex. Crim. App. 2016). Thus, when performing an
evidentiary sufficiency review, we may not re-evaluate the weight and credibility
of the evidence and substitute our judgment for that of the factfinder. See
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Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we
determine whether the necessary inferences are reasonable based upon the
cumulative force of the evidence when viewed in the light most favorable to the
verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied,
136 S. Ct. 198 (2015). We must presume that the factfinder resolved any
conflicting inferences in favor of the verdict and defer to that resolution. Id. at
448–49; see Blea, 483 S.W.3d at 33.
For a person to commit a crime for violating a court order enjoining
organized criminal activity, a person must (1) knowingly, (2) violate a temporary
or permanent order, (3) issued under section 125.065 of the civil practice and
remedies code. Tex. Pen. Code Ann. § 71.021(a) (West 2011). Thus, “to violate
section 71.021, a person must violate a temporary or permanent injunction with
the requisite intent (i.e., knowingly).” Goyzueta v. State, 266 S.W.3d 126,
132 (Tex. App.—Fort Worth 2008, no pet.).
B. Merito was Not Provided with a Copy of the Map of PLM Safety Zone
#1 with the Agreed Injunction
Merito first challenges that there is no evidence to establish that he acted
knowingly because the map of PLM Safety Zone #1 was not served on him. The
State disagrees and sets forth trial exhibit “9” as demonstrating that Merito was
initially served with the map in the lawsuit. Merito concedes in his reply brief that
he was served with a map of the proposed PLM Safety Zone #1 as it was
attached to the original petition, but he nevertheless contends that the map is
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unenforceable because it was not served on him with the agreed injunction. The
State rejoins that Merito has improperly raised a new argument in a reply brief,
and, in fact, is an argument that he has never-before raised.
We cannot agree with the State that Merito is improperly raising a new
argument in a reply brief. Not only did Merito sufficiently brief the issue in his
opening brief, but he raised the specific issue at trial and timely objected to the
State’s attempt to introduce the agreed order. Indeed, after questioning the
State’s witness concerning the missing map on voir dire, the State’s witness and
Prosecutor both conceded that the map was not attached to the agreed
injunction. And, after the State rested, Merito moved for a directed verdict on the
specific ground that the State had failed to introduce any evidence that the map
was attached to the agreed injunction.
Because we agree with Merito that there is no evidence to demonstrate
that he was provided a copy of the map with the agreed injunction, we consider if
there is any other evidence to support the jury’s verdict that Merito knowingly
violated section 71.021.
C. Merito is Bound by His Agreement to Abide by the Agreed Injunction
Merito asserts that the portion of the agreed injunction that describes the
boundaries of the PLM Safety Zone #1 is ambiguous because “[t]he boundaries
of the ‘PLM Safety Zone #1’ include and incorporate an area fifty (50) feet from
the furthermost curb line of the boundary.” Merito continues, “The [agreed
injunction] does not state which direction the 50 feet should extend” or “define
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what a ‘curb line’ is, or even to which ‘curb’ it is referring.” The State responds
that Merito cannot now complain that the PLM Safety Zone #1 is ambiguous
because he agreed in the injunction order that the “PLM Safety Zone #1 is a
reasonable and understandable geographic area[.]”
The court is somewhat bothered that Merito was not provided with the map
of PLM Safety Zone #1 with the agreed injunction. However, in the context of a
section 71.021 violation, this court has rejected a similarly-situated defendant’s
argument that the injunction was impermissibly vague when the defendant had
“voluntarily agreed to the permanent injunction.” Goyzueta, 266 S.W.3d at 133.
And, Merito does not direct the court to anywhere in the record to show that he
was coerced or intimidated into signing the agreed injunction. Cf. Barras v.
State, 902 S.W.2d 178, 181 (Tex. App.—El Paso 1995, pet. ref’d) (holding
appellant knowingly waived right to counsel when “[t]here is no evidence in the
record to the contrary, nor is there any evidence that Appellant was coerced or
intimidated in any way into signing the written waivers”). As a result, Merito is
bound by his prior, voluntary agreement that “PLM Safety Zone #1 is a
reasonable and understandable geographic area.” See Goyzueta, 266 S.W.3d at
133.
Further, we are mindful that the jury was apprised of the absence of the
map when Merito’s counsel questioned the deputy district clerk on voir dire. As
the factfinder, the jury was free to weigh the lack of evidence of the map against
the following undisputed evidence: the agreed injunction contained a written
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description of the boundaries of the PLM Safety Zone #1; Merito agreed to and
signed the injunction and affirmed that the geographic restriction was
“reasonable and understandable”; and Merito had received the map when he
was initially served with the petition. See Blea, 483 S.W.3d at 33. Deferring, as
we must, to the factfinder on the weight of the evidence, we hold that a rational
trier of fact could have concluded that Merito knowingly violated 71.021 in the
manner alleged, even though the agreed injunction did not include a map of the
PLM Safety Zone #1. See id. (citing Dobbs v. State, 434 S.W.3d 166, 170 (Tex.
Crim. App. 2014)).
Accordingly, we overrule Merito’s sole issue.
CONCLUSION
Having overruled Merito’s sole issue, we affirm the final judgment.
/s/ Mark T. Pittman
MARK T. PITTMAN
JUSTICE
PANEL: WALKER, KERR, and PITTMAN, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 28, 2018
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