Lawrence, Kenneth Paul ( 2015 )

5S0-/S S3H5
NO. 05-13-01138;
NO. 05-13-01139
IN THE TEXAS COURT OF ORIGINAL
CRIMINAL APPEALS
KENNETH PAUL LAWRENCE
PETITIONER
v.
COURT ofCE,VED'W
THE STATE OF TEXAS C0URr°F CRIMINAL APPEALS
RESPONDENT MAY 05 2015
^ettesta, Glmk
In the Court ofAppealsfor the Fifth District of
Texas at Dallas
NO. 05-13-01138; FILED IN
NO. 05-13-01139 COURT OF CRIMINAL APPEALS
MAY 06 2G15
PETITION FOR Abel Acosta, Clerk
REVIEW
ProSe
Kenneth Paul Lawrence
404 Lee St.
Wolfe City, TX 75496
Phone: 972-768-3361
kennylawrence@Yahoo.com
IDENTITY OF THE PARTIES AND COUNSEL
PETITIONER /APPELLANT
Kenneth Paul Lawrence
404 Lee St.
Wolfe City, TX 75496
Phone: 972-768-3361
kennvlawrence@Yahoo.com
CRIMINALDISTRICT ATTORNEY
Emily Johnson-Liu
Assistant Criminal District Attorney
2100 Bloomdale Rd., Suite 200
McKinney, TX 75071
STATE'S ATTORNEY AT TRIAL
Dale R. Barron
Texas State Securities Board
1210 River Bend Drive, Suite 208
Dallas, TX 75247
STATE'S ATTORNEY ON APPEAL
Greg Willis (or designated representative)
Collin County District Attorney's Office
2100 Bloomdale Road
McKinney, Texas 75071
PRESIDING JUDGE DISTRICT COURT
Honorable Benjamin N. Smith, DistrictJudge
380th Judicial District Court
2100 Bloomdale Road
McKinney, Texas 75071
TABLE OF CONTENTS
PAGE NO.
IDENTITY OF PARTIES AND COUNSEL 2
INDEX OF AUTHORITES 5
STATEMENT OF THE CASE 8
ISSUES PRESENTED:
Issue 1: The Court's negligent ruling
Issue2: The exclusion of testimony
Point ofError 1
The case is insufficient under Jackson v. Virginia where the evidence
shows Appellantpossibly had no involvement ofthe offense; that
Appellant issued strongly wordedadmonishmentsto be disseminatedto
investors; that accomplice witnesses distorted, perverted, and mutilated
sellingpointsprovided by Appellant to defraud down-stream investors;
that victims had no knowledge ofAppellant whatsoever atthe time they
invested; that Appellant did notknow and had no way to know down
stream investors hadbeen defrauded; andthat accomplice witness
boilerplate confessionsfailed to implicate Appellant and the accomplice
witnesses generally denied the existence ofillegal activity altogether on
cross-examination essentially retracting their boilerplate confession. No
rationaljuror couldfind Appellant Guilty beyond a reasonable doubt
8
Point ofError 2
The caseis insufficient due to the accomplice witness testimony rule
because none ofthe seven non-accomplice witnesses could remotely
inculpate the Appellant much less offerproof, which taken rationally,
could have tended to connect him to a criminal offense. Additionally,
Tex.Pen.C. 31.03(c)(2) which allowed the State to survive directed verdict
on the theft case does not alleviate the State's burden to prove knowledge
and intent to enter into a criminal combination asrequiredfor engaging
in organized criminal
activity. g
Point ofError 3
The State called a supervisingprosecutorfrom the same office as trial
counsel to solicit expert testimony against Defendant thus utilizing his
office to gain testimonial credit before thejury; confusing thejury as to
the role ofthe office in the prosecution; blurring the line between advocate
and witness; and undermining the public confidence in thejustice system.
Thefailure ofthe prosecuting entity and/or trial court to strike the witness
or recuse theprosecutorsparticipating in the trial was structural error
requiring
reversal. 9
Point ofError 4
Defendant not beingpersonallypresent ata video deposition violated his
SixthAmendment right to confront said
witness. 9
STATEMENT OF FACTS 9
SUMMARY OF ARGUMENT 20
ARGUMENT 23
Point of Error 1, Restated 23
Point of Error 2, Restated 27
Point of Error 3, Restated 34
Point of Error 4, Restated 42
PRAYER 48
CERTIFICATE OF SERVICE 49
INDEX OF AUTHORITIES
CASES
iDoe v. Roe, "•'•"• '•:^.., ' '- •''•- •"• ' '•"* • •.•••••• • -~ ~-—i
1 •; .„-;., V«v-',, . .v,~v • .•" •_':„•' "_•-•.. . :•••:• • ',,.;-• • -:- ..]
333 S.iW.4jd 11 i (Tex. App.^-Dallas..26l 0; peti deriied). ^.L^4 — L
'^
J
Dolins.Qny. Thompson,•;_..,. ':•:., •-.•.".•.'.._ ',"'•:••'- ;••••-'-- •"• '.',"..' "777 -'."l
\LlL^444.S;W.4d.222lfTexi App.—TexarkaniL-iQl 2. pe^ deni^}V^ K; ^ —J
'Litigant v. "Defendant, '•'•> •'•'."'•' T'-.. :-y •••••:.- .,- ;=.~:^v ;"Y"'
t:'-:"- ,:999-S:Wid'Hi;il^(tcx:.A^/^Aig^n20iiiTi^ filed) ..3"
'Plaintiff."v. Amicus,/;•• r '• ....'. *•" .'
,.;• •; ;.lll;S.W"4d333^Tex. APP.^ustin-.2blQvpet"deniedf 'L^:5
finiithy, Jones, •:'•. /:ii- •-;•. ;, .':-•. .._.-•"• -'..•..'••:;_". '". • '.'.•'. V..!-'.•-.-: .'-.T
I = -" •888S.W-3d222(Tex2012V •-.':—'', '•'.•''-"-•':',:".'jtf-.';
Statutes and other authorities
fTisi.GiY.-Prac. & Rem. Code Ann. .§. 38.001 ,...:...;.; ,.~:-..A;; ;.'. |9
E^:.Gov^Ck)deAmi^2l001fa)(6V;...^ ••*/••' .--Is 7
fe^Erop: Code Anri. fMlA Q^X^v--^----------":"-•-------'~3 11
I P •• -* »-PP--«- •. yJ. ••"••h...,^ .'.* T>[«....<.<..'........'v....j..j.,...v.'.i l l
Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 20ll) 23
Jacksonv. Virginia,443 U.S. 307 (1979) 8,20,23
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) 24
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) 24
Hooperv. State 2I4S.W. 3d 9, 16-17 (Tex. Crim. App. 2007) 24
Badillo v. State, 963 S.W.2d 854, 857 (Tex. App.—San Antonio 1998) 28
Morin v. State, 960 S.W.2d 132, 136 (Tex. App.—Corpus Christi 1997) 28
Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1994) 28
House v. State, 947 S.W.2d251, 254 (Tex. Crim. App. 1997 En Banc)...35, 36, 37
InRe: Guidry,3l6 S.W.2d 729 (Tex. App. —Houston [14th Dist.]) 35
Anderson Producing, Inc. v. Koch Oil Co., 929 S.W.2d 416 (Tex. 1996)...35, 38
Brownv. State, 921 S.W.2nd227 (Tex. Crim. App. 1996) 36,37, 40
Powers v. State, 165 S.W.3d 357 (Tex. Crim. App. 2005) 36,37
Diggesv. State, 2012 WL2444543 (Tex. App. —Dallas 2012) 36
United States v. Trapnell, 638 F.2d 1016, 1025 (7th Cir. 1980) 36
United States v. Birdman, 602 F.2d 547, 552-53 (3rd Cir. 1979) 36
United States v. Torres, 503 F.2d 1120, 1126 (2nd Cir. 1974) 36
Robinsonv. UnitedStates, 32F.2d505, 510 (8thCir. 1928) 36
United States v. Johnston, 690 F.2d 63 8, 644 (7th Cir. 1982) 37
Jordan v. State, 256 S.W.3d286, 290 (Tex. Crim. App. 2008) 38
Arizona v. Fulminante, 499 U.S. 279, 310(1991) 38
Davilav. UnitedStates, 133 S. Ct. 2139,2149 (2013) 38,41
Ayersv. Canales,790SW.2d554(Tex. 1990) 38,39
InreSanders, 153S.W.3d54, 57 (Tex. 2004) 39,42
Kentucky v.Stincer, 482 U.S. 730, 745(1987) 42
Illinois v. Allen, 397 U.S. 337, 338 (1970) 43
Grayv. Moore, 520 F.3d 616, 622 (6th Cir. 2008) 43
6
Romero v. State, 173 S.W.3d 502, 505 (Tex. Crim. App. 2005) 45
RULES
Tex. R. App. P. § 44.2(a) 9,23,48
Tex. Pen. C. 31.03(c)(2) 3,20,21,28
Tex. Pen. C. 71.02(a)(1) 24,26
Tex. Crim. Proc. Code Ann. §38.14 27
Tex. Disciplinary Rules Prof'l Conduct 3.08 34,35,39,41
Tex. Disciplinary Rules Prof'l Conduct R. 3.08 cmt. 4 35
Tex. Disciplinary Rules Prof'l Conduct R. 3.08(c) 34, 38
Tex. Disciplinary Rules Prof'l Conduct R. 3.08(a) 39,42
STA TEMENT OF THE CASE
Appellant was indicted for four separate charges; Theft of over
$200,000 for which he was ultimately acquitted; Securities fraud for which
he was ultimately acquitted; Engaging in organized criminal activity with
the predicate offense being theft over $200,000 for which he was ultimately
convicted and given 10 years confinement suspended for 10 years of
community supervision (380-80745-2011 CR P. 17) (380-80745-2011 CRP.
202 - 210); and money laundering over $200,000 ofthe proceeds oftheft of
over $200,000 for which he was convicted and sentenced to 5 years inthe
Texas Department of Corrections (380-80746-2011 CR P. 17) (380-80746-
2011 CR P. 196-198).
Issues on Appeal
I.
The Conviction for Engaging in Organized Criminal Activity with
the predicate offense of Theft over $200,000 is predicated on insufficient
evidence in light of Jackson v. Virginia as no rational juror could have
found Appellant Guilty beyond a reasonable doubt based on the
evidence presented at trial.
II.
The accomplice witness rule prohibits conviction because there
was only accomplice-witness evidence that tended to connect Appellant
to any crime.
III.
The supervising prosecutor's testimony as an expertwitness
constituted structural error requiring reversal.
IV.
Appellant was deprived of his Sixth Amendment Rights because
he was not present at the depositions of multiple witnesses taken in the
case. These depositions were later published to the jury as the witness'
sole testimony. This constitutional error contributed to the conviction,
and therefore this Court must reverse pursuant to Tex. R. App. P.
44.2(a)
STA TEMENT OF FA CTS
Kenneth Lawrence ("Appellant"), by and through his company, Green
Diesel (III P. 78 Ln. 13 - P. 79 Ln. 15) formed a relationship to build and
operate a bio-diesel plant in Hunt County, Texas (III P. 56 Ln. 2-15) with
Greenway Energy Partners, LLC, a company consisting ofCasey Vanloon,
Ricky Ray Knowles, John David Riddle, and Ronnie Nichols, (III P. 26, Ln.
5-15) (III P. 30 Ln. 5 - 23); (III P. 55 Ln. 3-18). The project was to be
done through SUNX (pronounced Sun-ex), an international corporation
selling franchises in Bio-Diesel plants (III P. 27 Ln. 17 - 21) (III P. 52 Ln. 5
- 8) (IV P. 126 Ln. 18 - P. 127, Ln. 3). Appellant and Greenway were
trying to raise money from investors (III P. 38, Ln. 3-13). Appellant and
his uncle, Robert Lawrence, actually visited SUNX in British Columbia,
Canada, to verify the legitimacy and viability of their plan to built a
biodiesel plant(V P. 11 Ln. 6 - P. 13 Ln. 20).
SUNX Investors, such as Appellant, thought they were buying a
franchise they could operate themselves, but mid-way through the project
SUNX gave investors the option of being converted to shareholders in a
plant (or plants) operated by SUNX, or to have their investmentreturned
altogether. (IV P. 129 Ln. 8-P. 131 Ln. 18). SUNX eventually went
bankrupt and/or quit honoring their commitments. Appellant and Dan
Anglin, an investor and defense witness who traveled from Ohio to testify,
were sent scrambling by SUNX unforeseen failure (IV P. 9 Ln. 14 - 17) (IV
P. 139Ln.4-P. 142 Ln. 6).
The State called Ricky Ray Knowles, Casey Vanloon, and John
Riddles to testify against Appellant. It is uncontested these are accomplice
witnesses andthe Court charged the jury they were as such (380-80745-2011
CRP. 185 - 194). Each accomplice-witness had previously signed a
boilerplate voluntary confession and plea agreement ("VCPA") and those
were admitted into evidence (State'sExhibits 1, 11 and 29). The VCPAs all
failed to implicate Appellant and do not mention him in the confession
portions. Each accomplice-witness testified the project was Appellant's
10
idea and that Appellant provided them with at least some of the information
to give the potential investors (III P. 27 Ln. 6 - P. 29 Ln. 9) (III P. 37 Ln. 4 -
6) (III P. 79 Ln. 23 - P. 80 Ln. 7) (III P. 159 Ln. 5-21). The most
significant item provided by Appellant was a voluminous prospectus (State's
Exhibit 12) (III, P. 37 Ln. 4-10).
Within the prospectus was the following language at the outset of
approximately three pages of bold-highlighted admonitions, cautions and
warnings:
"PARTICIPATION AS A JOINT VENTURER
HEREIN INVOLVES A HIGH DEGREE OF RISK
AND ONLY THOSE PERSONS WHO ARE ABLE
TO BEAR THE FINANCIAL RISKS REFERRED
TO IN THIS MEMORANDUM SHOULD
CONSIDER PARTICIPATING IN THIS
VENTURE."
(State's Exhibit 12).
The State proved some of Greenway's investors had clearly been
defrauded in Greenway's efforts to raise operating capital. The main culprit
in the fraud was Ronnie Nichols (III P. 173 Ln. 16 - 20). Mr. Nichols did
not testify in this trial and was ultimately sentenced to 8 years TDC. (Ill P.
162 Ln. 23 - P. 163 Ln. 11). The State will not be able demonstrate any
evidence inthe record that Appellant directly defrauded any investor.
During punishment it was revealed the State attempted to contact investors
li
directly solicited by Appellant. Instead of the State's prosecution the
investors informed Appellant they had been contacted (VII P. 175 Ln. 3 -
25). No investor who testified in this case and was defrauded had directly
met with or spoken with Appellant at the time they were originally
defrauded.
On cross-examination, each accomplice witness denied wrong doing
to varying degrees, and each denied there was any scheme to defraud
investors. They essentially retracted their original boilerplate confessions
(III P. 53 Ln. 15 - P. 54 Ln. 6 [Knowles Repudiation]) (III P. 116 Ln. 14 -
P. 117 Ln. 17 [Riddle Repudiation])(III P. 163 Ln. 18 - P. 164 Ln. 20
[Vanloon]). There was nothingon the checks which would have aroused
Appellant's suspicion the money had been raised fraudulently when the
money was ultimately sent to him and not even John Riddle knew the money
to have been raised fraudulently (III P. 141 Ln. 11 - 17). Appellant hadno
control over Greenway accounts (III P. 55 Ln. 16-18).
Though accomplice-witnesses testified the information they usedto
defraud investors was from Appellant, theirtactics in no way resembled
anything Appellant could have contemplated. An investor defrauded by Mr.
Nichols claimed theydidn't even know they were buying in to a biodiesel
plant (III P. 196 Ln. 21-P. 197 Ln. 6) (III P. 185 Ln. 1-P. 187 Ln. 16).
12
Accomplice-witness Casey Vanloon told another investor that he was an
attorney (IV P. 198 Ln. 9-17). The state will not be able to demonstrate in
the record Appellant was made aware ofor sanctioned any ofthese tactics or
shenanigans used by accomplice witnesses or by Mr. Nichols.
Non-Accomplice Witnesses
Eliza Lujan:
The State called an expert accounting witness, Eliza Lujan, to testify
as to how money controlled by Appellant was being spent (IV P. 5 Ln. 9).
Ms. Lujan testified Appellant had transferred $40,000 to SUNX (IV P. 9 Ln.
14-17) (See generally III P. 239 Ln. 7 - IV P. 33 Ln. 2). Ms. Lujan made
speculative comments to the jury. For instance, Ms. Lujan initially guessed
money was paid to Hunter Lawrence which she believed to be the child of
Appellant. On cross-examination the jury learned Hunter Lawrence may
actually have beena cousin. (IV P. 8 Ln. 25 - P. 9 Ln. 2) (IV P. 23 Ln. 23 -
P. 24 Ln. 1).
James Willis (Video):
James Willis was the only investor who ever spoke with Appellant but
did so well after Mr. Nichols defrauded him to see about recouping his
13
money (III P. 215 Ln. 3 - P. 216 Ln. 6) (State's Exhibit 32-2 published to
juryat III P. 238 Ln. 15 [not transcribed by the court reporter]). Appellant
clearly expressed continuing support ofthe project but he also made a very
clear assertion that, "there'sno guarantee of anything" (approx. 18:21 into
the recording by Appellant's attorney's estimation). At one point Mr.
Willis said to Appellant, [Mr. Nichols] ".. .did not explain to me like you are
telling me this... had he done that... had he told me what he was doing I
never would have done this" (approx. 21:45 into the recording by
Appellant's attorney estimation). Ultimately Appellant told Mr. Willis to try
to get his money back from Greenway. Again, Appellant would not have
known if he had Mr. Willis' money because he was not aware ofGreenway
investors when money was forwarded to him (III P. 141 Ln. 11 - 17).
Appellant was not present for his video-deposition, which was ultimately
played for thejury (IIIP. 182 Ln. 5 - P. 183 Ln. 20).
Thomas Petersik:
In it's opening statement, the statetold thejury that the co-defendants
misrepresented the existence ofan insurance policy to investors (through the
"Fireman's Fund") which would indemnify them from a potential loss by
telling the jury "there was no insurance policy" (III P. 9 Ln. 2 - Ln. 22). Mr.
14
Petersik is a representative from the "Fireman's Fund" who traveled from
Chicago, Illinois. (IV P. 33 Ln. 22 - P. 34 Ln. 1) (IV P. 35 Ln. 12- P. 36
Ln. 1). The State called Mr. Petersik to testify there was no insurance policy
in place by Green Diesel, Greenway, or SUNX. On cross-examination the
witness testified: (1) he never contacted SUNX (presumably to see if a
policy hadbeen planned but was notcurrent because the planned plant(s)
had not been built yet) (IV P. 40 Ln. 2 - 3); (2) a valid business interruptions
policy would in fact indemnify qualified losses from an existing plant given
the proper circumstances (IV P. 43 Ln. 11 - 24); and that (3) the SUNX
prospectus containing a letter with the "Fireman Fund's" logo did not appear
to make fraudulent representations (IV. P. 45 Ln. 1-P. 46 Ln. 4 discussing
Defense Exhibit 1).
Todd Crosby:
This witness is Appellant's brother-in-law who had been sued along
withthe Appellant by a former investor of an oil andgas project (IV. P. 65
Ln. 15 - P. 68 Ln. 16). Mr. Crosby admitted they had employed an attorney
by the name of Phil Aufill to draft the joint venture agreement which
ultimately got them sued by their former investor- and that Mr. Aufill was in
federal custody (IV P. 71 Ln. 4 - P. 72 Ln. 2) (IV P. 77 Ln. 19- P. 78 Ln.
15
11). Mr. Crosby testified he had been sued for theft by L&C Consultants
(Appellant's previous company) but claimed he was innocent (P. 70 Ln. 9
P. 71 Ln. 1).
Richard Waskom:
The State called Richard Waskom, a person successfully sued by
Appellant by and through L&C Consultants for $150,000 (IV P. 106 Ln. 12
- P. 107 Ln. 5). Mr. Waskom generally testified he was privy to the lawsuit
against Appellant as well as Mr. Crosby and the underlying facts of the
lawsuit that involved an oil and gas project (IV P. 81, Ln. 6- P. 100 Ln. 24).
Garland Downing:
Mr. Downing was a 79 year-old investor solicited by Casey Vanloon.
Mr. Downing never heardthe name of Appellant in connection with the
investment (IV. P. 51 Ln. 9 - 11).
Herman Peace (Video)
This witness was an investor solicited by Ronnie Nichols. He was not
positive he had heard Appellant's name at or near the time he invested (IV P.
167 Ln. 1-P. 169 Ln. 12). The record is silent whether Appellant was
present for this deposition.
16
Billie Nevill (Video)
Billie Nevilltestified she was an investor who was solicited by Mr.
Casey Vanloon. Ms. Nevill was not asked any questions on direct
examination about Appellant (IV P. 184 Ln. 20 - P. 203 Ln. 14). Ms. Nevill
testified initially she was not sure what she was investing in but later
recalled what it was in more general terms (IV P. 193 Ln. 8-17). The
record is silent as to whether Defendant was in attendance.
Alma Sparks (Video):
Ms. Sparks was an investor solicited by Casey Vanloon. Ms. Sparks
testified she did not know who Appellant was at the time of her investment
(IV P. 226 Ln. 18 - P. 228, Ln. 11). Appellantwas not present for her
deposition. (IV P. 208 Ln. 8 - P. 209 Ln. 8).
Joseph P. Oman - The Prosecutor-Witness
The State further relied on the expert testimony of Joseph P. Oman, an
attorney who is the assistant director of the enforcement division and the
supervisor for the Dallas Branch office of the Texas State Securities Board.
This is the same agency that employs trial counsel for the State though trial
17
counselwas working in the capacityas a special prosecutor on the case as
appointed by the sittingDistrict attorney of Collin County (II P. 2 Ln. 3 -
11)(IV P. 237 Ln. 14 - P. 238 Ln. 22) (II P. 24 Ln. 16 - P. 25 Ln. 2). Mr.
Oman has testified previously in similar capacities (IV P. 239 Ln. 19 - P.
240 Ln. 6).
Mr. Oman gave basic legal opinions about concepts including
investment contracts, evidence of indebtedness, and blue sky laws. (IV P.
240 Ln. 10 - P. 243 Ln. 1). He described offices full of unregistered agents
as "boiler rooms" (IV P. 245 Ln. 18 - 25). He resolved several
hypotheticals including; (1) that a purported joint venture similar to
Appellant's joint venture would not allow individuals in the venture to
exercise any control (IV P. 253 Ln. 3 - P. 254 Ln. 7); and (2) that a promoter
would have a duty make sure sales-persons disclose material facts about
himselfto the ultimate investors (IV P. 254 Ln. 8 - P. 255 Ln. 1). Mr.
Omantestifiedthe terms in the prospectus do not really applyto a biodiesel
offering but is more similar to oil and gas. (IV P. 255 Ln. 2 - 23). Mr.
Oman testified in his experience oil and gas companies attempt to sell
projects as true joint ventures in an effort to evade Texas and Federal
securities laws because they do not want the oversight due to a history with
regulatory agencies. (IV P. 256 Ln. 14 - P. 267 Ln. 4).
18
The State relied on Mr. Oman's testimony in arguing against directed
verdict (V P. 53 Ln. 2 - 7). The state referenced Mr. Oman's testimony in
closing argument and spoke in detail about some of the concepts he raised
during his testimony though they did not attribute it to him. In the State's
initial closing argument, reference was made to the fact others were not
aware of Appellant's history with the Texas State Securities Board (V P. 64
Ln. 9 - P. 65 Ln. 7); the State argued Appellant was guilty of Engaging in
Organized Criminal Activity due to his failure to correct false impressions
about his past (V P. 68 Ln. 3 - P. 69 Ln. 4). In the State's final summation,
the lawyer for the State made a direct reference to Mr. Oman and his
discussion of the oil and gas language in the prospectus linking the fact
Appellant was previously in the oil and gas industry (V P. 92 Ln. 1-14). In
the final moments ofjury argument, the State discussed Appellant's failure
to disclose to others his regulatory history which touched on a pointMr.
Oman made in his testimony (V P. 95 Ln. 14- P. 96 Ln. 3).
Other Non-Accomplice Evidence
The State showed Appellant had been sued and hada judgment for
over $500,000 against him (III P. 158 Ln. 16 - 18); that Appellant had
19
unsuccessfully attempted lawful discharge of his debts through Bankruptcy
proceedings (IIIP. 35, Ln. 6-17), (State's Exhibit 10), and that Appellant
had a cease and desist letter from the Texas State Securities Board on a
previous matter (State's Exhibit 8). This evidence was advanced pursuant to
the State's theory that Appellant failed to disclose material information to
investors.
Charge Conference
During thejury charge conference the State relied upon Tex.Pen.C.
31.03(c)(2) arguing the testimony of an accomplice witness is sufficient to
prove knowledge and intent as it applies to theft. The State generally
referred to facts they thought were proven but citedno sources of evidence -
and thus no sources of evidence independent from accomplice witness
testimony connecting Appellant to the offense. (IV P. 277 Ln. 21 - P. 280
Ln. 19).
Summary of the Argument
I. The Evidence Is Insufficient under Jackson v. Virginia to Convict
Appellant of Engaging in Organized Criminal Activity; to wit,
theft over $200,000.
Based on the elements of the offense as defined by statute and the
indictment, the State was required to prove Appellant intentionally or
20
knowingly established, maintained, or participated in a combination or in the
profits of a combination, by intentionally or knowingly committing the
offense oftheft, and the property obtained bythe theft was obtained pursuant
to one scheme and continuing course of conduct, and had an aggregate value
of $200,000 or more. After viewing the evidence in the light most
favorable to the verdict, no rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. The juryunfairly
or irrationally inferred Appellant's guiltbased on the facts presented.
II. The Non-Accomplice Witness Evidence Fails to Connect
Appellant to the Offense Charged
The only evidence of Appellant's guilt, if any, was based on testimony
of accomplice witnesses. No evidence from non-accomplices tended to link
or connect Appellant to the charges in this case. The State relied on
Tex.Pen.C. 31.03(c)(2) to survive directed verdict as to the knowledge and
intentelements of theft, however, a conviction for engaging in organized
criminal activity withtheft as the predicate offense requires a separate
showingof knowledge or intentto establish, maintain, or participate in a
combination or in the profits of a combination. Because the only evidence
establishing intentand knowledge to enterthe combination, if any,
21
was from accomplice witness testimony, the facts are legally and factually
insufficient.
III. The State's Solicitation of the Prosecutor's Supervisor's
Testimony as an Expert Witness Marred the Proceedings and
resulted in Structural Error Requiring Reversal
The State called Joseph P. Oman, an attorney licensed to practice law
for 31 years as an expert witness. Mr. Oman stated his employment was
with the Texas State Securities Board in Dallas - the same office for trial
counsel for the State. Prosecutors have enhanced credibility, which is why
they should be mindful of testifying in cases theyprosecute. Were this not
enough, an expert witness also has enhanced credibility above and beyond
normal fact or lay witnesses. Mr. Oman's testimony resolved hypotheticals
against Appellant, and also testified Appellant's modus operandi comported
with person who engage in similar types of fraud. Mr. Oman's presence as a
expert witness and his testimony severely damaged and affected Appellant's
rights. Mr. Oman should have been struck as a witness or in the alternative
the trial counsel should have been recused. In either event the error is
structural because it impacted the framework of the proceedings.
IV. The Trial Court Erred in Allowing Deposition Testimony Into the
Record where Appellant was Not Present During the Witness
Testimony
22
Appellant was not present at the video deposition of James Willis or
Alma Sparks. The record is silentwhether Appellant was presentfor the
depositions of Dr. Herman Peace and/or Billie Neville. These witnesses did
not appear live but instead through video depositions offered in lieu of live
testimony. The Sixth Amendment to the U.S. Constitution allows an
accused to be present for his ability to consult with counsel about
questioning of a witness and so the witness is aware of the presence of the
accused. BecauseAppellantwas not present for their testimony and cross-
examination, his 6th Amendment Rights were violated. This was harmful
error pursuant to Tex. R. App. P. 44.2(a).
Argument
I.
The Evidence is Insufficient Under Jackson v. Virginia to Sustain a
Conviction for Engaging in Organized Criminal Activity
When an Appellant argues the evidence is legally insufficient to
support his conviction, the reviewing court must consider all the evidence in
the light most favorable to the verdict and "determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt."
Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson
23
v. Virginia, 443 U.S. 307 (1979). A reviewing court cannot "re-evaluate the
weight and credibilityof the record evidence" and "substitute [its] judgment
for that of the fact-finder." Williams v. State, 235 S.W.3d 742, 750 (Tex.
Crim. App. 2007) (quoting Dewberry v. State, 4 S.W.3d 735, 740 (Tex.
Crim. App. 1999)).
The elements for engaging in organized criminal activity as charged
here are that Appellant intentionally or knowingly established, maintained,
or participated in a combination or in the profits of a combination by
intentionally or knowingly committingthe offense of theft, and the property
obtained by the theft was obtained pursuantto one scheme and continuing
course of conduct and had an aggregate value of $200,000 or more.
TEX.PEN.C. 71.02(a)(1).
In analyzing sufficiency, the Court is to "determine whether the
necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable
to the verdict." Hooper v. State 214 S.W.3d 9, 16-17 (Tex.Crim.App. 2007)
(emphasis added). Thus it can be inferred sufficiency is not merely the
viewing evidence of guilt in a vacuum, but reviewing the totality of the
record.
24
Tex.Pen.C. 2.01 is often over-looked but it clearly holds "all persons
are presumed to be innocent and no person may be convicted of an offense
unless each element of the offense is proved beyond a reasonable doubt."
This provision clearly applies to jurors. While this court is bound to
consider the evidence in the light most favorable to the guilty verdict- it
must do so considering a rational juror is underthe duty to presume the
accused innocent when resolving evidence in a case. Indeed, very few
successful embezzlement combinations occurwhere a principal gives an
agent a prospectus for investors containing page after page of bold-
capitalized disclaimers and admonitions about how investors can lose all
their money.
Only one rational inference can be made where accomplice witnesses
deny a combination took place, where the voluntary confessions fail to
inculpate Appellant, and where at least one accomplice states Appellant was
not made aware of the fraudulent nature of the acquisitionof funds at the
time they werepaid: that Appellant didnot enter into a combinationfor the
purposes ofcommittingtheft.
The State would likely argue accomplice-witnesses established the
guilt of Appellant standing alone. Again, none of VCPAs, however, directly
25
inculpate Appellant. Additionally, each denied, to varying degrees, any
wrongdoing that would be necessary to establish a combination in violation
Tex.Pen.C. 71.02(a)(1). The only fact established by their cumulative
testimony is that Appellantwas the person who gave them materials and
information they could useto solicit investors and that he was in charge of
the main deal with SUNX. The defrauded investors, however, were given
completely mutilated versions of Appellant's original information if they
were told about a biodiesel plant at all.
Mr. Vanloontold investors he was an attorney (IV P. 198 Ln. 9 -17).
Mr. Nichols tricked at least one investor who didn't even know he
was investing in a biodiesel plant (III P. 196 Ln. 21 - P. 197Ln. 6).
Mr. Nichols asked investors to roll over annuities and other
investments into their venture (III P. 185 Ln. 1-P. 187 Ln. 16).
The State can point to no evidence Appellant took part, sanctioned, or
even knew of this out-right fraud. If anything, the criminal actions of Mr.
Nichols and Mr. Vanloon were unforeseeable. When their outrageous
shenanigans are juxtaposed with Appellant's innocent conduct such as
issuing a prospectus with ominous disclaimers and later telling investors
"there's no guarantee of anything," the only rational conclusion is Appellant
26
was not part of a combination with the bad actors.
Indeed, a juror presuming Appellant innocent could only rationally
find where Appellant's materials had not been forwarded to the ultimate
investor and where his project had been presented in such a twisted manner
to the ultimate investor that he had no way of knowing about the fraud. In
fact, the evidence showed as much when John Riddle testified Appellant did
not know the means by which the funds were raised nor would he have any
reason to suspect the means were foul (III P. 141 Ln. 11 - 17).
Therefore, because the evidence in this case when taken as a whole
does not rationally or reasonably establish Appellant's guilt beyond a
reasonable doubt, the evidence is insufficient.
II.
Even if the Evidence was Sufficient, it was Based on Accomplice
Witness Testimony Alone and the Non-Accomplice Witness Testimony
Fails to Connect Appellant to Any Crime
Tex.Code.Crim.P. 38.14 states that "a conviction cannot be had
upon the testimony of an accomplice unless corroborated by other evidence
tendingto connectthe Appellant with the offense committed; and the
corroboration is not sufficient if it merely shows the commission of the
27
offense." Therefore, in any case where accomplice testimony forms a part
of the evidence, there must be sufficient corroboration of the testimony for a
conviction to stand. There must be some corroboration other than the
statements or testimony of other co-conspirators. Badillo v. State, 963
S.W.2d 854, 857 (Tex. App.—San Antonio 1998).
To determine if the accomplice testimony was corroborated, the fact
finder at the trial court level (and the appellate court at the present level)
must "eliminate all accompliceevidence from the record and [then]
determine whether the inculpatory facts and circumstances in evidence tend
to connect the appellant to the offense." Morin v. State, 960 S.W.2d 132,
136 (Tex. App.—Corpus Christi 1997), citing Munoz v. State, 853 S.W.2d
558, 559 (Tex. Crim. App. 1994).
Tex.Pen.C. 31.03(c)(2) provides a narrow exception to the
accomplice witnesstestimony rule in theft offenseswhere accomplice
witness testimony may be sufficient to establish the intentor knowledge
elements alone. The exceptiondoes not apply to any other element such as
identity or the appropriation of property. Furthermore, the exception does
not alleviate the State of having to prove the separate mental state of
28
entering into a combination for engaging in an organized criminal activity
statute.
Here, Appellant contends the State all but conceded during argument
against directed verdict only accomplice witness testimony connects
Appellant to the offenses in question(V P. 53 Ln. 2 - 7).
Indeed, the State's reasoning seemed to be if they multiplied enough
zeroes, they would eventually generate positive numbers in connecting
Appellant to the offense. The State called sevennon-accomplice witnesses
and had 47 exhibits entered into evidence. It seemed as if the state's theory
was, "where there is smoke, there is fire" but no evidence broke the barrier
they needed.
James Willis:
James Willis is the only witness who came closeto linking Appellant
with the conduct of the accomplice witnesses. Mr. Willis testified he had
never met Appellantin person and that he was only aware of Appellant well
afterhaving his money stolen by Ronnie Nichols. Mr. Willis had a lengthy
phone conversation with Appellant where Mr. Willis was not even able to
authenticate Appellant's voice on the recording. The individual purporting
29
to be Appellant encouraged Mr. Willis to contact Greenway about getting a
refund, continued to express optimism about the project encouraging Mr.
Willis to keep his money invested and finally cautioning Mr. Willis that
nothing was guaranteed to anyone. Mr. Willis even told Appellant that had
Mr. Nichols explained the project to him the way he had, he never would
have invested (Exhibit 32-2, approximately 18:21 and 21:45 into the
recording as estimated by Appellant's attorney).
The phone call only confirms Mr. Willis had been defrauded and that
Mr. Lawrence felt the project was still a worthwhile investment. Again,
because Appellant had no way of knowing the fraudulent activity of
Greenway at that point- he would naturally not take any otheraction with
Mr. Willis thanreferring him backto the ones who had initially taken their
money... which he ultimately appeared to do in on the call.
Eliza Lujan
Expert accountant Eliza Lujan's testimony did not connect
Appellant's conduct to the offenses committed with the Greenway
accomplices or Ronnie Nichols. Ms. Lujan's testimony can be summarized
as selecting questionable sounding expenditures without giving context and
when pressed on whether the expenditure was legitimate - Ms. Lujan
30
retreated into her safe harbor that she was onlytestifying as a conduit of
information and it was for thejury to decide the legitimacy of the
expenditure. (E.g. V P. 18 Ln. 1- P. 19 Ln. 8). Ms. Lujan's reckless guess
that Hunter Lawrence could have been Appellant's child and was being paid
in stolen proceeds from the elderly degrades the entire judicial process. A
juror might notthink twice about such testimony butit would rightfully
incense someone who truly believed in their loved one's innocence and
would only make them bitter after a conviction.
Thomas Petersik:
It is clearthe State's strategy in calling Mr. Petersik to testify was to
show representations by Appellant about "The Fireman's Fund" insurance
policy were a sham. Mr. Petersik had to communicate with Greenway to
cease and desistrepresentations they had been making (IV P. 36 Ln. 4 - P.
37, Ln. 18)(State's Exhibit 27).
Mr. Petersik's only testimony about Appellant or Green Diesel was
that his research showed neitherhad a policy with "Fireman's Fund" (IV P.
35 Ln. 6 - P. 36 Ln. 1). Further, Mr. Petersik testified there was nothing
fraudulent from what he could tell about representations about Fireman's
Fund in the prospectus presented to him. Not only did Mr. Petersik's
31
testimony fail to connect Appellant with a criminal combination - it
reinforced the obvious conclusion that Greenway had again pervertedand
distorted truthful information Appellant had given to them in the first place
to lure victims.
Garland Downing
Mr. Downing was an elderly investor who had been defrauded. Mr.
Downing said nothing which would tend to connect Appellantwith the
offense(IVP. 51Ln.9-ll).
Todd Crosby
Mr. Crosby was called by the State to establish a past civil judgment
against Appellant in support of the State's claim Appellant failed to disclose
material information (IV P. 65 Ln. 15 -P. 68 Ln. 16). Mr. Crosby also
testified he had been sued by Appellant and/or L&C Consultants for Theft at
one point. Nothing in Mr. Crosby's testimony connectedAppellantin any
way to the fraud and theft committed by Greenway.
Richard Waskom
Mr. Waskom testified he has a $150,000 judgment against him from
Appellant and/or L&C Consultants that he has no intention of paying (IV P.
32
106 Ln. 12 - P. 107 Ln. 5). Mr. Waskom testified to establish Appellant had
beenpreviously sued and had a judgment takenagainst him and to the facts
of that underlying lawsuit (IV P. 81 Ln. 6 - P. 100 Ln. 24). Mr. Waskom
was not asked about the current charges against Appellant and thus did not
provide any testimony connecting him to said offense.
Herman Peace:
Dr. Peace was an elderly investor who had been defrauded. The State
can point to nothing said by Dr. Peace that would tend to connect Appellant
with the offense.
Billie Nevill:
Ms. Nevill was an elderly investor who had been defrauded. The
State can point to nothing said by Ms. Nevill that would tend to connect
Appellant with the offense.
Alma Sparks
Ms. Sparks was an elderly investor who had been defrauded. The
State can point to nothing said by Ms. Sparks that would tend to connect
Appellant with the offense.
33
Joseph Oman
Mr. Oman,the supervisor for trial counsel, generally testified about
hypothetical concepts surrounding securities fraud and aboutgeneral
criminal conduct whereby people with regulatory history attempt to evade
regulation (IV P. 256 Ln. 14 - P. 267 Ln. 4). Though Mr. Oman's testimony
was hardlyharmless - it did nothing to link Appellant to the offense other
than those generalizations (E.g. IV P. 256 Ln. 14- P. 257 Ln. 4). In the
alternative, if Mr. Oman's testimony did tend to linkAppellant to the
offense, Appellant asserts Mr. Oman's comments be regarded as argument
and not testimony.
Because there is no Non-Accomplice Witness evidence which tends to
connect Appellant with the commission of Engaging in Organized Criminal
Activity; to wit, Theft over $200,000, judgment in this case should be
reversed and rendered.
III.
The State's Calling of the Prosecutor-Witness as an Expert Was
Structural Error Requiring Reversal
Texas Rule of Professional Conduct 3.08 forbids lawyers from being
witnesses in their own cases. Rule 3.08(c) imputes representation across the
34
firm of the attorney. Particular dangers posed when a prosecutor testifies
against a criminal Appellant have been recognized in the past that (1) the
prosecutor will not be a fully objective witness; (2) it is feared the prestige
of a Government attorney's office will enhance the witness' credibility; (3)
the prosecutortestifying might "create... confusion on the part of the jury as
to whether he [is] speaking in his capacity of prosecutor or witness." Such
confusion may result in the fact finder affording testimonial credit to the
prosecutor's closing arguments; and (4) it reflects a broader concern for
public confidence in the process ofjustice. House v. State, 947 S.W.2d 251,
254 (Tex.Crim.App., 1997 En Banc) (Baird Dissenting).
Rule 3.08 is grounded principally on the notion that the finder of fact
may become confused when one person acts as both advocate and witness.
See Tex. Disciplinary R. Prof'l Conduct 3.08 cmt. 4; In Re: Guidry, 316
S.W.2d 729 (Tex.App. - Houston [14th Dist.]). The rule reflects the concern
that an opposingparty may be handicapped in challenging the credibilityof
a testifying lawyer. Anderson Producing, Inc. v. Koch Oil Co., 929 S.W.2d
416 (Tex. 1996).
Though Texas Courts have issued tough dicta against the practice -
Texas Courts have consistently found reasons to uphold cases with incidents
35
of prosecutors testifying. See Housev. State, 947 S.W.2d 251, 254
(Tex.Crim.App., 1997 En Banc), Brown v. State, 921 S.W.2d 227
(Tex.Cr.App. X996), Powers v. State, 165 S.W.3d 357 (Tex.Crim.App.-
2005), and Digges v. State 2012 WL2444543 (Tex.App. - Dallas,
2012)(unpublished). These cases are informative butnot instructive as they
do not deal with the issue here - which is whether the tactic constitutes
structural error.
In House, Justice Baird in his dissent notes otherjurisdictions have
dealt withthis issue and have looked upon it with disfavor. E.g., United
States v. Trapnell, 638 F.2d 1016,1025 (7th Cir. 1980) (observing that
appearance of prosecutor as witness is improper except in extraordinary
circumstances); UnitedStates v. Birdman, 602 F.2d 547, 552-553 (3rd Cir.
1979) (notingcourts and especially federal courts universally frown on
practice of prosecutor testifying), cert, denied, 444 U.S. 1032 (1980); United
States v. Torres, 503 F.2d 1120, 1126 (2nd Cir. 1974) (prosecutor should not
be used as witness unless all other sources of testimony exhausted);
Robinson v. UnitedStates, 32 F.2d 505, 510 (8th Cir. 1928) (practice of
prosecutor acting as witness should be disapproved except in most
extraordinary circumstances). Rarely should such testimony be permitted
and, if the prosecutor testifies, he should then withdraw from any further
36
participation in front of the jury. E.g., UnitedStates v. Johnston, 690 F.2d
638, 644 (7th Cir. 1982).
Texas Courts have been reluctantto afford Appellants a windfall
merely because their opponent may have committeda violation of the Texas
Rules of Professional Conduct. The Court of Criminal Appeals has held,
"The rules do notgrant a Defendant standing or some 'systematic' right to
complain aboutan opposing party's alleged disciplinary rule violations that
do not result in actual prejudice to a Defendant... The rules should not be
used as a tactical weapon to disqualify opposing counsel for their alleged
disciplinary rule violations or to obtain a reversal of a conviction for alleged
disciplinary rule violations by the opposing counsel unless the Appellant can
show the alleged disciplinary rule violations by opposing counsel deprived
him of a fair trial or otherwise affected his substantial rights." SeeHouse, at
253 citing Brown at 231 -232 (Tex.Cr.App. 1996). Again, the House and
Brown cases do not resolve whether the error in the case is structural.
Further, in Powers v. State, 165 S.W.3d 357 (Tex.Crim.App. - 2005),
the Court of Criminal Appeals adopted a "dual role" standard whereby as
long as a prosecutor does not actively participate in the trial other than
testifying, he is not serving in a "dual role" as lawyeran witness in the same
37
case. The Court's rationale, however, renders Rule 3.08(c) meaningless,
which imputes representation to the entire office of the lawyer and ignores
the fact the witness' credibility is enhanced merely bythe office or title he or
she holds.
"A 'structural' error 'affect[s] the framework within which the trial
proceeds, ratherthan simply an error in the trial process itself,'" and is not
amenable to a harm analysis. Jordan v. State, 256S. W. 3d286, 290 (Tex.
Crim. App. 2008) (quoting Arizona v. Fulminante, 499 US. 279, 310
(1991)). All structural errors must be founded on a violation of a federal
constitutional right, but not all violations of federal constitutional rights
amount to structural errors. SeeDavila v. UnitedStates, 133 S. Ct. 2139,
2149, (2013). UnderDavila, a structural error is a very limitedclass of error
that triggers automatic reversal because they undermine the fairness of a
criminal proceeding as a whole. Error of this kind includes denial of counsel
of choice, denial of self-representation, denial of public trial and failure to
convey to a jury that guilt must be proved beyond a reasonable doubt. Id.
The rule of conduct is also based the concern that an opposing party
may be handicapped in challenging the credibility of a testifying attorney.
SeeAnderson Producing v. Koch Oil Co. 929 S.W.2d at 416 citing Ayers v.
38
Canales 790 S.W.2d 554 (Tex. 1990). This rationale has obvious over-tones
and implications withregard to the Sixth Amendment Rightto Confront.
The fact that a lawyer simultaneously serves as both an advocate and a
witness does not in itselfcompel disqualification. In re Sanders, 153 S.W.3d
54, 57 (Tex. 2004). Disqualification is only appropriate if the lawyer's
testimony is "necessary to establish an essential fact." Tex. Disciplinary R.
ProfIConduct 3.08(a); seeIn re Sanders, 153 S. W.3d at57. The party
requesting disqualification must demonstrate that the opposing lawyer's dual
roles as lawyer and witness will cause the party actual prejudice. See id.
Though the Texas Rules of Professional Conduct Preamble para. 15
statesthe rules are not designed to be standards for procedural decisions; the
trial courtmay disqualify an attorney in order to prevent a violation of Rule
3.08. Seeders, 790 S.W.2d at 557.
Appellant concedes no objection was made at trial nor was any effort
made by Appellant's trial counsel to strike Mr. Oman as a witness or recuse
the State's trial counsel. Appellant contends the lack of objection, though, is
immaterial if the error in the case is structural in nature.
Here, Appellant's rights were harmed in a manner that was one of the
primary concerns of Rule 3.08. The State utilized the prestige of their office
39
in both the prosecution of Appellant and in submitting factual issues against
Appellant. In doing so, the State posed a witness who it was virtually
impossible to effectively cross-examine or discredit violating his Sixth
Amendment Right to confront. In fact, Appellant here was even more so
damaged than were the Appellants in Brown and House because here the
State proffered a prosecutor from the same office as an expert witness (IV.
P. 237 Ln. 12 - P. 240 Ln. 6). Further the State relied on the witness'
testimony in arguingagainst directedverdict (V P. 53 Ln. 2-7) and
repeatedly followed-up on themes and concepts from the witness during
closing argument including their very last words to thejury before they
retired to deliberate (E.g. V P. 64 Ln. 9 - P. 65 Ln. 7) (V P. 68 Ln. 3 - P. 69
Ln. 4) (V P. 92 Ln. 1 - 14) (V P. 95 Ln. 14 - P. 96 Ln. 3).
The error in allowing the State to call as an expert witness a
prosecutor from their office is exponential. It marred the proceedings by
misappropriating the prestige of their office to enhance the credibility of a
witness. It created confusion on the part of the jury as to whether the
witness was speaking in his capacity as prosecutor, as a neutral witness, or
both. It afforded testimonial credit during closing argument to what the
prosecutor argued from the stand. It reflected broader concern for public
confidence in the process of justice. It finally impaired Appellant's ability to
40
effectively cross-examine the witness due to his enhanced credibility and
prestige. The error in allowing such a witness to testify is of the type
contemplated byDavila in thatthe fairness of the criminal proceeding as a
whole has been undermined.
The State may argue in their own defense trial Counsel was a special
prosecutor for Collin County and therefore wasn't under Mr. Oman's direct
supervision for this particular prosecution. While this may technically be
true it does little to erase the problems caused by the violation ofRule 3.08
and the notion this rule can be successfully evaded by switching bosses on a
temporary basis would not be one jurors or the public would accept as
reasonable. Further, without knowing how the Texas State Securities Board
operates - whether theyare special prosecutors in every case they prosecute
in every county - allowing the entity to engage in this practice based on a
minute distinction invites only more similar instances.
The State relied on the expert's testimony to survive directed verdict
(albeit for one of the indictments that resulted in acquittal) that there was no
requirement thatthe person committing the offense [ofsecurities fraud]
knows whether or not it is a security. The State's use of Mr. Oman's
testimony was to develop facts essential to their theory ofthe case for
41
conviction. Therefore, exclusion was appropriate. Tex. Disciplinary R.
Prof'l Conduct 3.08(a); see In re Sanders, 153 S.W.3d at 54, 57 (Tex
2004).
Further, the error is "structural" because it affected the framework
from which the trial proceeded rather than just an error in the process.
Indeed, the appropriate remedy in this case should have been to disqualify
eitherthe witness or the particular officeprosecuting the case. Either
remedy, or failure to grant such remedy, would have substantially affected
the framework of the trial.
Therefore, because the error in this case in allowing the Stateto call as
an expert witness a lawyer from their own office is structural in nature -
reversal is required.
IV.
Appellant's Sixth Amendment Rights were Violated Because He Was
Not Present at the Depositions of at Least Two and Possibly up to Four
Witnesses. The Violation Should Result in a Reversal of this
Conviction.
An Appellant's right to be physically present at every stage of his trial
has a longstanding tradition in this country's criminal jurisprudence, with
origins in both the Due Process Clauses,Kentucky v. Stincer, 482 U.S. 730,
745 (1987) ("[A] Defendant is guaranteed the rightto be present at any stage
42
of the criminal proceeding that is critical to its outcome if his presence would
contribute to the fairness of the procedure."), and the Confrontation Clause
ofthe Sixth Amendment, Illinois v. Allen, 397 U.S. 337, 338 (1970) ("One of
the most basic of the rights guaranteed by the Confrontation Clause is the
accused's right to be present inthe courtroom at every stage ofhis trial.").
Gray v. Moore, 520 F.3d 616, 622 (6th Cir. 2008).
A vital aspect of the right of confrontation and cross-examination is
safeguarding the integrity of the fact-finding process. Stincer at 736. As the
Gray court pointed out:
By "integrity," we do not merely mean the
perception of a fair trial, but also the tactical
assistance [the accused] could have offered his
attorney while he questioned [the accuser] about
her testimony. Although [the accused] had the
opportunityto consult with his attorney after the
court removed him from the courtroom and before
the startof [the accuser's] cross-examination, [the
accused] was not present during the actual
cross-examination and therefore could not
assist his attorney in following-up to any
answers [the accuser] provided on cross-
examination. [Illinois v. Allen, 397 U.S. 337,344,
(1970)] (noting that "one of the Appellant's
primary advantages to being present at the trial [is]
his ability to communicate withhis counsel").
Gray at 627. (Emphasis added).
43
Additionally, the Gray courtpowerfully explained, "the principles
embodied in the SixthAmendment are not meant to protect the rights of
witnesses, but rather those of the accused, whose life and liberty lies in the
hands of his peers." Id.
The right to confrontation is a right personal to an Appellant, and may
not be satisfied by the Appellant's attorneybeing presentat the deposition
while the Appellant is absent due to illness, the Texas Court of Criminal
Appeals has explained:
Whether the reliability of the testimony is
otherwise assured turns upon the extent to which
the proceedings respect the four elements of
confrontation: physical presence, oath, cross-
examination, and observation of demeanor by the
trier of fact. In Maryland v. Craig, the Supreme
Court found sufficient assurance of reliability in a
procedure that denied one of these elements-
physical presence-where the remaining three
elements were unimpaired (emphasis added). In
that case, a child witness testified in front of a one
way closed-circuit monitor that prevented her from
seeing the Appellantbut permittedthe judge,jury,
and Appellant to see the witness. Because the
witness was under oath, subject to
contemporaneous cross-examination, and her
demeanor was on display before the trier of fact,
the Supreme Court found that the procedure
adequately ensured that the testimony was "both
reliable and subject to rigorous adversarial testing
44
in a manner functionally equivalent to that
accorded live, in person testimony."
Romero v. State, 173 S.W.3d 502, 505
(Tex.Crim.App.2005).
The ConfrontationClause of the United States Constitutionguarantees
to every person charged with a crime the right to be confronted by the
witnesses against him. Garcia v. State, 151 Tex. Crim. 593, 598 (Tex. Crim.
App. 1948). The Texas Court of Criminal Appeals has further expounded
by stating that, "the constitutional provision that the accused shall be
confronted with the witnesses against him means that the witnesses on the
part of the state shall be personally present when the accused is on trial, or
that they shall be examined in his presence and be subject to cross-
examination by him." Id. (quoting Kemper v. State, 63 Tex. Crim. 1 (Tex.
Crim. App. 1911). Furthermore, it is commonly agreed that the practice of
confrontation has two purposes, with the foremost and crucial one being to
secure the opportunity of cross-examination. Id at 600 (citing Snyder v.
Massachusetts, 291 U.S. 97 (1934)).
Interestingly though, the Texas Code of Criminal Procedure carves out
an exception to an accused's right to be confronted in the presence of a
witness. The Code states that "a defendant's failure to attend a deposition or
request a continuance in accordance with this subsection constitutes a waiver
45
ofthe defendant's right to be present at the deposition." Tex.Code.Crim.P.
39.025(g).
To be sure, the Sixth Amendment right of confrontation is "by its
language and historical underpinnings, a personal right of the accused and is
intended for his benefit." UnitedStates v. Carlson, 547 F.2d 1346, 1357 (8th
Cir. 1976). Therefore, this right, in the same way as other federally assured
constitutional rights, can be waived by the accused. Id at 1357-58.
However, and importantly where Article 39.025 of the Texas code of
Criminal Procedure is unconstitutional, to constitute a valid waiver there
must be "an intentional relinquishment or abandonment of a known rightor
privilege" by the accused. Johnson v. Zerbst, 304 U.S. 458,464 (1938).
Appellant concedes the depositions were lawfully applied for, ordered
by the Court, and notice given to Counsel for the Defense (380-80745-2011
CR 41 - 43). The record is silentas to why Appellant had not attended.
Perhaps his lawyer did not inform him of the dates. Perhapsthe travel
burden was too great for Defendant to attend, or perhaps the times and dates
for the Deposition were unreasonable and done without meaningful
conference.
46
Tex.RCrim.P. 39.025(g) cannot be harmonized with the U.S.
Supreme Court's ruling inJohnson. Failure to attend a deposition with no
explanation whatsoever on the record is not "an intentional relinquishment
or abandonment of a known right or privilege." It may be an intentional
relinquishment or thenagain it isjust as likely an act of omission or
negligence. Further, it impermissibly shifts the burden on a criminal
defendant to participate in his own defense by potentially forcing him to
travel hundreds of miles from where he or she may be charged if he or she
wants to exercisetheir constitutional rights. It places the needs of the
witness over the rights ofthe defendant. Because Tex.R.Crim.P. 39.025(g)
deems a waiver of defendant's right to confront without regard to whether
the failure to attend the deposition was "an intentional relinquishment" the
provision cannot be saidto be anything otherthan unconstitutional under
Johnson.
Finally, it should be noted one of the witnesses where Mr. Lawrence
was not present was James Willis. Mr. Willis was the most damaging of all
the investor witnesses.
The trial court abused its discretion by admitting the deposition
testimony at trial after allowing the deposition to go forward in Mr.
Lawrence's absence, violating his constitutional rightto confront and cross-
47
examine the witness. We request, underRule 44.2(a), a reversal of the trial
court'sjudgment unless it is determined beyonda reasonable doubt that the
errordid not contribute to Mr. Lawrence's conviction or punishment.
Prayer
Based upon the foregoing arguments, Appellant prays for and requests
that this Court reverse and enter a judgment of acquittal on the issues or in
the alternative reverse and remand these proceedings to the trial Court.
Appellant respectfully prays for any and all reliefin lawand equity to which
he is justly entitled.
RESPECTFULLY SUBMITTED,
Kenneth Paul Lawrence
404 Lee St.
Wolfe City, TX 75496
Phone: 972-768-3361
kennylawrence@Yahoo.com
ProSe
48
Certificate of Service
This is to certify that this document was sent to Greg Willis, District Attorney,
and Emily Johnson-LiuAssistant Criminal District Attorney, by and through
their counsel of record on the date filed, pursuant to the Texas Rules of
Criminal and Appellant Procedure
Kenneth Lawrence
ProSe
49
i * c
1U* 3 -JI 0-
cooimi
nF\J
-s-- —• OO
-i -W—I CO
— X -i
-*N