Calvert v. State

PATRICK BIRCH CALVERT, Appellant v. THE STATE OF TEXAS

No. 02-18-00341-CR

Court of Appeals Second Appellate District of Texas at Fort Worth

September 3, 2020

On Appeal from the 43rd District Court Parker County, Texas

Trial Court No. CR16-0801

Before Sudderth, C.J.; Kerr and Wallach, JJ.

Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION

I. Introduction

A jury found Appellant Patrick Birch Calvert guilty of engaging in organized crime (theft in an aggregated amount between $30,000 and $150,000) and assessed as his punishment a twenty-five-year sentence and a $10,000 fine. See Tex. Penal Code Ann. § 12.42 (enhanced punishment), § 31.03 (theft), § 71.02(a)(1) (engaging in organized crime). In nine points,¹ Calvert, proceeding pro se,² appeals, arguing that he received ineffective assistance of counsel before, during, and after trial; that he was subjected to judicial bias, prosecutorial misconduct, and jury charge error; that his jury was tainted; that he was denied his right to a speedy trial; that the trial courterroneously admitted extraneous offense evidence; and that the evidence is insufficient to support his conviction.³ We affirm.

II. Sufficiency

In his ninth point,⁴ Calvert argues that the evidence is insufficient to support his conviction for engaging in organized criminal activity.

A. Standard of Review and Applicable Law

Federal due process requires that the State prove beyond a reasonable doubt every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 2787 (1979); see U.S. Const. amend. XIV. Accordingly, in our evidentiary-sufficiency review, we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the crime's essentialelements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).⁵

This standard gives full play to the factfinder's responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Queeman, 520 S.W.3d at 622. We may not re-evaluate the evidence's weight and credibility and substitute our judgment for the factfinder's. Queeman, 520 S.W.3d at 622. Instead, we determine whether the necessary inferences are reasonable based on the evidence's cumulative force when viewed in the light most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); see Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) ("The court conducting a sufficiency review must not engage in a 'divide and conquer' strategy but must consider the cumulative force of all the evidence."). We must presume that the factfinder resolved any conflicting inferences in favor of the verdict, and we must defer to that resolution. Murray, 457 S.W.3d at 448-49. When performing a sufficiency review, we must consider all the evidence admitted at trial, even if it was improperly admitted. Jenkinsv. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004).

Calvert was charged with engaging in organized criminal activity with several others by having unlawfully appropriated four trailers and three vehicles,⁶ alleged to have been part of one scheme or continuing course of conduct resulting in the theft of an aggregate value of $30,000 to $150,000 in property.⁷ Accordingly, the State had the burden to prove that Calvert had unlawfully appropriated these items with the intent to establish, maintain, or participate in a combination, or in the profits of a combination, consisting of "Charles Brian Perrin, Chance Wayne Stephenson, Eric Ian Sampley, Cody Alan Jacobson, Amanda Michelle Morgan, and/or Mark Bates, who collaborated in carrying on said criminal activity." See Tex. Penal Code Ann. § 71.02(a)(1). Appropriation is unlawful if, among other things, it is without theowner's effective consent or if the property is stolen and the actor appropriates it knowing that it was stolen by another. See id. § 31.03(a), (b)(1)-(2).

Perrin, Stephenson, Sampley, and Morgan, who were listed in the indictment as accomplices, testified during Calvert's trial. Accomplice-witness testimony must be corroborated to be sufficient for a conviction. Tex. Code Crim. Proc. Ann. art. 38.14; State v. Ambrose, 487 S.W.3d 587, 593 (Tex. Crim. App. 2016). We do not, however, use the Jackson standard when determining if accomplice-witness testimony is sufficiently corroborated. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (explaining that the statutorily imposed accomplice-witness review "is not derived from federal or state constitutional principles that define . . . sufficiency standards"). When evaluating the sufficiency of corroboration evidence under the accomplice-witness rule, we "eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime." Id.; Qualls v. State, 547 S.W.3d 663, 671 (Tex. App.—Fort Worth 2018, pet. ref'd). To meet the requirements of the rule, the corroborating evidence need not prove the defendant's guilt beyond a reasonable doubt by itself. Malone, 253 S.W.3d at 257; Qualls, 547 S.W.3d at 671. Nor is it necessary for the corroborating evidence to directly link the accused to the commission of the offense. Ambrose, 487 S.W.3d at 593; Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). Rather, the direct or circumstantial corroborating evidence must show that rational jurors could have found that it sufficiently tended toconnect the accused to the offense. Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011); Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009); Qualls, 547 S.W.3d at 671.

We judge the sufficiency of nonaccomplice evidence according to the particular facts and circumstances of each case. Smith, 332 S.W.3d at 442; Malone, 253 S.W.3d at 257. Circumstances that are apparently insignificant may constitute sufficient evidence of corroboration. Trevino v. State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999); Qualls, 547 S.W.3d at 671; Simmons v. State, 205 S.W.3d 65, 73 (Tex. App.—Fort Worth 2006, no pet.). We do not construe the nonaccomplice evidence de novo but instead defer to the factfinder's resolutions. Smith, 332 S.W.3d at 442; Qualls, 547 S.W.3d at 671.

B. Corroboration Evidence

A crime spree between Thanksgiving 2015 and February 2016 led Parker County Sheriff's Office Investigators Evan Cox and Scott Masters to set up a "bait" trailer with GPS trackers. Perrin took the bait but abandoned it and fled the scene. Sampley, who was found with it, was arrested on an outstanding warrant, and he led the officers to 409 Longhorn, where Calvert lived in a trailer.

409 Longhorn Trail was owned by 67-year-old Roger Huebner, a licensed addiction therapist and Army veteran who also had a residence there. Huebner described Morgan as "difficult" and untrustworthy and said that she had lived withCalvert for a while and that Ronnie Hooper, another of Calvert's companions, had moved in with Calvert for a week or two "before all this started."

Huebner testified that with all of the cars, trailers, and tools around, the property had "ended up looking like a construction site" because of Calvert and the people he was working with. He noted that Calvert had lost his "formal" job before Christmas in 2015 and had started losing weight. Huebner said that with regard to his experience as an addiction therapist, he "would say there was [an] indication that [Calvert] was drinking or using or doing" drugs but that he never saw or smelled anything.

Huebner gave Investigators Cox and Masters his consent to search the property but not the residences. The investigators interviewed Calvert the next day.

During Calvert's recorded interview, which was admitted into evidence and published to the jury, he denied stealing anything and told the investigators that in the preceding three or four months, he had sold four or five trailers but had kept no record of his sales. He brought a shoebox full of receipts to his interview. Several of the receipts were admitted separately into evidence as exhibits. Investigator Cox expressed his concerns about their legitimacy, stating, "I have never seen bills of sale written on wrinkled-up pieces of paper or napkins, or bills of sale written like the billsof sale that he furnished us that day." The shoebox containing the remaining receipts was admitted into evidence as State's Exhibit 2.⁸

Calvert told the investigators that an individual named Cody Dearman had brought him a trailer and that Dearman was friends with Manuel Herrera, whose name was on more than one of the handwritten receipts. Calvert said that he andDearman had been friends and that he had worked for him before they had a falling out.⁹ Dearman's name was on one of the handwritten bills of sale.

Investigator Cox said that Dearman—a drug user with a lengthy criminal history, including convictions for drug possession, a variety of misdemeanors, and felony assault—had previously been in a relationship with Morgan and had told him that he would be willing to do anything to avoid prison and that Calvert had been stealing trailers.

Dearman, who was not charged as an accomplice,¹⁰ denied his involvement when the investigators spoke with him although he told the investigators that he had taken trailers to Calvert's property. While Calvert told the investigators that Dearman had been in prison with Herrera, Dearman denied knowing anyone named "Manny," "Manuel Salazar," or "Manuel Herrera."¹¹ Dearman knew Sampley because they had been incarcerated together in 2006, and he had hung out with Stephenson. Dearman said that he met Perrin through Calvert and knew Morgan as Calvert's girlfriend....