Patrick Birch Calvert v. State ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00341-CR
___________________________
PATRICK BIRCH CALVERT, Appellant
V.
THE STATE OF TEXAS
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 court
1
Most, if not all, of Calvert’s points are multifarious, i.e., they embrace more
than one specific ground. By combining more than one contention in a sin gle point,
an appellant risks rejection on the ground that nothing is presented for review. Smith
v. State, 316 S.W.3d 688, 694 (Tex. App.—Fort Worth 2010, pet. ref’d). But because
we may address a multifarious point that is sufficiently developed in the brief, see id.,
to the extent that we can discern Calvert’s contentions on appeal, in the interest of
resolving the substantive issues, we have addressed them below. To the extent that
we cannot discern his contentions, we overrule the arguments as multifarious and
inadequately briefed. See id.; see also Tex. R. App. P. 38.1(f) (requiring a brief to
concisely state all points presented for review), (i) (requiring a brief to contain a clear
and concise argument for the contentions made).
2
During the appeal’s pendency, we abated the case for the trial court to
admonish Calvert of the dangers and disadvantages of self-representation in
accordance with Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975),
and Hubbard v. State, 739 S.W.2d 341, 345 (Tex. Crim. App. 1987).
2
erroneously 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 essential
3
Calvert also proposes that this court issue some findings of fact and
conclusions of law, but this is not the appropriate court for such a request. See Zuniga
v. State, 144 S.W.3d 477, 482 (Tex. Crim. App. 2004) (stating that the appellate court is
not allowed to “find” facts), overruled on other grounds by Watson v. State, 204 S.W.3d 404
(Tex. Crim. App. 2006).
4
We begin with Calvert’s challenge to the sufficiency of the evidence to support
his conviction because a resolution of this point in his favor would result in the
greatest relief. See, e.g., Lovett v. State, 523 S.W.3d 342, 349 (Tex. App.—Fort Worth
2017, pet. ref’d) (rendering a judgment of acquittal on one of the appellant’s
convictions when evidence was insufficient to support it).
3
elements 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 reason able 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. Jenkins
5
The Jackson standard of review is the “only standard that a reviewing court
should apply in determining whether the evidence is sufficient to support each
element of a criminal offense that the State is required to prove beyond a reasonable
doubt.” Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (overruling Clewis
v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996)).
4
v. 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 the
6
The three vehicles alleged to have been stolen were a 2015 Ford F-550 stolen
from P.C. Contractors, LLC, or John Patterson (the Ford F-550 theft); a 2014 Isuzu
NPR (a semi-diesel industrial box truck) from National Shot Peening, Greg Glover, or
Rickey Cummins (the Isuzu theft); and a 2014 Nissan Maxima from Randy Rosamond
(the Maxima theft). The four trailers alleged to have been stolen were a 10-foot trailer
from Robert Graves (the Graves theft); a welding trailer, Miller welder, and/or tools
from Michael Rokus (the Rokus theft); a Wells Cargo trailer from Dwayne Barnett
(the Barnett theft); and a PJ flatbed trailer from Sidney Whitener (the Whitener theft).
7
The indictment originally alleged an aggregate amount of between $150,000
and $300,000, but during trial, the trial court allowed the State to amend the aggregate
amount to between $30,000 and $150,000. Because Calvert does not dispute the
sufficiency of the evidence to support the stolen items’ value, we will not address it
other than to note that the amount is supported by the record.
5
owner’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 standard s”).
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 to
6
connect 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 with
7
Calvert 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 bills
8
of sale that he furnished us that day.” The shoebox containing the remaining receipts
was admitted into evidence as State’s Exhibit 2. 8
8
Calvert’s arguments frequently allude to valuable exonerative evidence
contained within the shoebox but not the specifics of its contents:
• a handwritten bill of sale, dated February 9, 2016, stating, “I Doug Hull sold
Patrick a trailer house axel with small hub for $50.00”;
• an undated handwritten bill of sale from Angela Littlepage, stating, “Action
Wrecker sold a homemade trailer to Patrick Calvert for $200”;
• a December 7, 2015 handwritten bill of sale for saddle blankets, saddle pads, a
horse trough, some lug axles, and other items from Manuel Herrera to Calvert;
• many receipts for tools and work equipment from various stores, in amounts
ranging from a couple of dollars to almost $500, and dated in 2014 and 2015,
including:
o 26 Home Depot receipts for the purchase of items that included a “Husky
50-Gal Mobile Job Box” for $64.00; a “4 Gal Wheeled Stack Tank
Compressor” and various hoses and gauges for $220.27; a “Milwaukee 18V
1-Hand Recip Saw Kit” for $215.42; two “M18 Drikll/Hackzall Combo
Kits”—one for $193.77 and the other for $161.29—a “SDS Max Rotary
Hammer” and “Bosch HS1935 RTEC Flat Chisel Sharp” for $449.25; a
“Framer A- PC 3-1/2’ RND HEAD FRAME NLR” for $199; and a “Circ
Saw A 15A 7-1/4 inch ‘Tilt-Lok’ circle saw” for $139.64, in addition to
paint, PVC pipes, tape, nails, and clamps;
o a receipt for $16.73 from Texas Tool Traders for “Fire Resistanthard” and
“Tape Measurement H”;
o several receipts from Tractor Supply Co: $8.65 for a “7 in Johnny Square
Pro Alumni Rafter SQ”; $357.21 for “Trav 10000lb Truck Winch”; $49.07
for “bottle jack 8T,” “BX Lock & Keys,” and “Bulldog Crank Handle,” and
$16.30 for a metric o-ring kit, some wire brushes, and “trav brake part
cleaner nonchlorine”;
o 5 receipts from Lowe’s, ranging from $4.84 to $191.01 (the only
recognizable tool on these receipts is a 37-piece screwdriver set for $15.97);
9
o 2 receipts from Walmart: one included the sale of an impact wrench for
$99.97, and one listed a scale for $29.84 and a burner for $29.92;
o a receipt for $2.99 for “Glide-1 1/3’ Nail on cushion” from Simms Lumber
Co.;
o a receipt for $20.99 for a tire inflator and gauge from Pate’s Hardware Inc.;
o a receipt for $14.06 for an “auto adjust water PO” from Northern Tool &
Equipment Co.;
o 2 receipts from Ace Hardware, one for “$28.99 for an “Ace Osc. Sprinkler
3600”; and one for nails and a “Blade Saw 7-1/4’ 24T FRMG” for $10.99;
o Receipts from Harbor Freight tools reflecting a $21.69 purchase for safety
glasses, ear plugs, and work gloves, and $24.36 for funnels;
o A receipt from Shark Specialty Tools for $98.50 for a “Wright 3/4' Breaker
Bar” and a “GP 21 MM Square Socket.”
• an invoice to “Branch Counter Sale San Antonio Branch,” in Hill Country Village,
for $180.24 from Milwaukee Electric Tool Corporation for a “M18 Battery 2 Pak”;
• information on a DeWalt battery charger;
• 5 receipts from O’Reilly Auto Parts for repairs to a Ford Ranger;
• 7 money order receipts;
• various receipts from Cracker Barrel, Chick-Fil-A, McDonald’s, Denny’s, Taco
Bell, Taco Bueno, Taco Casa, Quizno’s, Krispy Kreme, Panda Express, Subway,
Starbucks, Firehouse Subs, Whataburger, Rosa’s Café, Waffle House, Costco,
Walmart, Walgreens, Brookshire’s, Albertson’s, other fast food restaurants, and
other grocery and convenience stores for purchases of food and beverages in
amounts ranging from $3.23 to $100 (for the purchase of two $50 restaurant gift
cards).
• a few receipts for clothing and personal items from Walmart, JC Penney, Target,
Ross Dress for Less, dollar stores, and Dickies.
10
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 and
• some handwritten notes about home repairs, a “Ron Paul President 2012” bumper
sticker, two movie ticket stubs, and a May 18, 2015 Texas certificate of title for a
1994 Ford Ranger registered to Calvert.
• a $75 stub for a January 30, 2014 per diem from R&L Electric Inc.;
• a law firm ad pertaining to a speeding ticket issued to Calvert;
• a receipt for $11 from the Texas Department of Public Safety for a modification
Calvert had made to his driver’s license;
• plan details for Calvert’s cell phone;
• a printout of a June 16, 2006 photo of the eaves of a house;
• a map showing the location of Teskey’s Saddle Shop;
• one United States Postal Service “Forever” stamp;
• two blank Texas Motor Vehicle Transfer Notification forms;
• a handwritten letter mailed in 2015 from an incarcerated friend;
• a Class C Weatherford Police Department citation issued to Calvert on April 4,
2014;
• a June 29, 2015 speeding citation issued to Calvert by the Fort Worth Police
Department;
• a hazardous ingredients list with regard to arc welding;
• and a JC Penney temporary credit card.
11
Dearman 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.
9
Dearman testified that he had employed Calvert briefly and summarized their
employment problem as, “I was more about doing drugs and chasing women, and he
was more about doing drugs and hooking up trailers.” Dearman clarified that by
“hooking up,” he meant “stealing.” He also testified that he had supplied Calvert
with methamphetamine, which they had used together.
10
Dearman testified in jail clothes because at the time of the trial he was serving
a three-year sentence for unlawful possession of a firearm by a felon.
11
In his interview with the investigators, Calvert used the names Manuel
Herrera and Manuel Salazar interchangeably.
12
Even after Dearman and Calvert stopped socializing, Dearman continued to sell drugs
to Calvert.
During his interview, Calvert denied knowing Perrin, but a search of Perrin’s
phone revealed text messages and calls to and from “Patrick” and “Pat” regarding
Pat’s sale of an engine for $3,000, the availability of drugs, and the exchange of
photographs, and there were audio files on Calvert’s phone from the number listed on
Perrin’s phone as “Patrick” and “Pat.” Perrin’s phone contained a text to “Patrick”
with an attached list entitled “inventory,” which listed a number of items, including
binoculars, a tripod, and some guns. Perrin’s phone also showed that on February 23,
2016, at 3:44 p.m., Stephenson had sent Perrin a “friend” request.
When Investigators Cox and Masters searched the inside of Calvert’s home,
among other items,12 they found three full sets of vehicle identification number (VIN)
12
After Calvert’s counsel objected to extraneous offense testimony about a
photograph of a Snap-On battery charger that was stolen during one of the thefts, the
trial court granted a running objection to State’s Exhibits 3 through 36 for any
conduct that was not contained within the indictment. In addition to the stolen Snap-
On battery charger, the investigators who searched Calvert’s home also found a
Dewalt router that they suspected was stolen because its identifying information had
been removed and because one of the trailers that was stolen had previously had a
Dewalt router. They also found a red bag containing battery-powered hand tools,
including two sets of Milwaukee drills and impact drivers; a Bose amplifier; a winch
from which the serial number had been removed; a Skilsaw with no marks or serial
numbers on it; another router from which the serial numbers had been removed; and
some Milwaukee battery chargers and batteries. Investigator Cox stated that he
believed Calvert, who worked as a handyman or carpenter, had legally purchased
some of the tools found in his residence, but Investigator Masters said on cross-
examination that no one had gone through Calvert’s shoebox of receipts to determine
whether the items found in Calvert’s residence were stolen.
13
punch sets, which are “used for punching VIN numbers or making [one’s] own
identification numbers onto metal.” They also found a “Slim Jim,” which is a piece of
equipment used to enter locked cars, and various torches and air tanks on the
property.
Calvert was arrested the same day his residence was searched, and Morgan
visited him at the jail. During their visit, their conversation was recorded. In the
recorded conversation, Calvert told Morgan that if she was going to take over “out
there,” she was going to have to take the lead position, and he told her to stay “on top
of everything.” Calvert told her to tell “Cody and everybody” to enjoy it while they
can “because it won’t last forever.” Calvert also told her that he did not believe that
“Charles” (Perrin’s first name) was “singing like a canary,” that he wanted Hooper to
take care of “you know,” and that she should check the oil on the truck.
From Calvert and Morgan’s conversation, Investigator Masters learned of an
additional physical location—“the Hill”—and a virtual location—Calvert’s Offer Up
webpage—where he suspected stolen items might be found. Investigator Masters said
that the Hill was a field in the 400 block of Mesa Trail with a bunch of trees
The investigators found a Ryobi saw matching the description of an item stolen
in an unrelated theft. In Calvert’s locked “tool room,” the investigators found a green
trunk, from which someone had removed the previous owner’s name, along with
various glues and sealant. They could not identify whether the green trunk’s contents
were stolen or rightfully possessed by Calvert. Other items that they could not
identify as stolen or rightfully possessed by Calvert included a teal box with a Mikita
saw, a camera case containing a camera and some lenses, another Dewalt drill missing
its serial numbers, and a Husky dual tank air compressor.
14
preventing sight from the road; it was located approximately three miles from 409
Longhorn Trail (Calvert’s residence) and not far from 234 Pioneer Trail, where Jimbo
“Duck” Adkins lived and additional stolen property was found.
1. The Isuzu Truck Theft
On November 24, 2015, an Isuzu truck with a Morgan dry-freight trailer cargo
box was stolen from National Shot Peening (NSP) in Weatherford.13 Cummins,
NSP’s quality manager and director of maintenance, testified that Sampley, who had
been an NSP employee at the time, had stolen the Isuzu truck.14 Sampley told
authorities that Jacobson, who also worked for NSP at the time, had stolen the Isuzu
truck.
During the search of Calvert’s residence, investigators found underneath his
trailer an Isuzu steering column that Investigator Masters believed belonged to NSP’s
stolen Isuzu truck.
13
The facility’s surveillance video showed two men in dark clothing—neither of
whom was Calvert—enter the facility at around 7:34 p.m. One of them drove the
Isuzu truck into the building at around 9:19 p.m. and then drove it away at 10:15 p.m.
14
Cummins testified that in addition to the new Isuzu truck, the thieves stole
various tools and new equipment, that witnesses had placed Sampley at the scene, and
that the GPS data from the company truck that Sampley drove showed that he had
arrived at the scene around the time of the break-in. Cummins said that Sampley had
given the key to the building to the other culprit. The keys to the Isuzu truck had
been inside the facility. Sampley had also been fraudulently purchasing tools and
services using NSP’s account. NSP ultimately terminated Sampley, a
methamphetamine and heroin user with a lengthy criminal history, for refusing to take
a drug test.
15
Dearman identified a piece of a box truck that he had seen “down there on the
bottom of Western Lake Estates by the pond.” He recounted that Morgan and
Calvert had borrowed his truck “to go get a box truck in White Settlement.”
When the investigators searched 234 Pioneer Trail (Adkins’s property), they
found a Morgan dry-freight box and a partially burned label on the ground that bore
the last 10 digits of the freight box’s VIN. Investigator Masters contacted the Morgan
dry-freight company for the full VIN and identified it as belonging to NSP’s Isuzu
truck. Investigators also found the Isuzu truck’s rear axle and gas tank on the
property.
The investigators cut the lock off the freight box and found inside the box the
Isuzu truck’s doors and parts of its air-conditioning system, as well as two water
bottles and two cigarette butts. The bottles and cigarette butts were tested for D NA,
and Calvert’s DNA matched the single-source DNA profile on the menthol cigarette
butt.
The search of Calvert’s phone revealed three photos showing different views of
the dry-freight box and the Isuzu truck’s rear axle. Calvert’s phone also contained
information that Offer Up, eBay, and Craigslist had sent to him. Calvert’s phone
contained a Craigslist post, “Bumper 2014 Isuzu N series hd truck,” timestamped
February 14, 2016, at 10:25 a.m. Calvert joined Offer Up on February 18, 2016, when
16
he listed a 16-foot truck box for $3,500.15 On February 22, 2016, Calvert downloaded
onto his phone some files on the installation body and specifications for an Isuzu
NPR truck. On February 19, 2016, eBay sent Calvert automatic relisting information
for the following items: “2014 Isuzu N Series npr ecomax factory stereo” at 7:15
p.m., “2014 Isuzu N series Nor driverside headlight” at 7:19 p.m., and “2014 Isuzu
NPR N series heavy duty truck dashboard front panel” at 7:22 p.m.
There was also evidence that Calvert had worked through others to post items
for sale. Jimmie Young, who had a business buying and selling items online on
Craigslist and Offer Up, told the investigators that he could show them photos of
items from Calvert.16 A search of Young’s residence revealed an Isuzu engine,
transmission, and front axle.
2. The Barnett Theft
On November 28, 2015, Barnett reported the theft of his Wells Cargo trailer to
the Graham Police Department. During the search of 409 Longhorn Trail,
investigators noticed a Wells Cargo trailer from which the main and secondary VIN
15
Calvert also listed on his Offer Up page a small batch concrete mixer; 19-inch
Nissan rims; a Stihl MS250 chain saw; and a 9 x 5 dump trailer.
16
Young, who was not charged as an accomplice, testified that Calvert found a
job for him after they had met at an Alcoholics Anonymous meeting in 2014 but that
they had stopped hanging out after they had a “little fallout” about work. At the end
of 2015, he and Calvert had used drugs together. Young said that Calvert had
brought him a lawnmower, a weed eater, and a trailer to sell but that he did not know
if they were stolen. Young had some drug convictions, and at the time of the trial, he
had been on parole for six months.
17
numbers had been removed and which was being painted even though it looked
relatively new. After contacting Wells Cargo, Investigator Masters confirmed that the
trailer was Barnett’s.
Investigator Cox testified that the handwritten bill of sale produced by Calvert
during his interview described the Wells Cargo trailer:
Bill of Sale 10/17/2015
Sold to Patrick Calvert: (1) 5 x 12 enclosed trailer for 1100$ -
Title to be mailed in 45 days.
Seller: Manuel Herrera
Buyer: Patrick Calvert.
The bill of sale’s date predated the trailer’s November 2015 theft.
Dearman testified that Bates17 had dropped off the Wells Cargo trailer for
Calvert at Dearman’s house and that Dearman had taken the trailer to Calvert’s
residence when he suspected that the trailer might be “hot.”
3. The Maxima Theft
On December 21, 2015, Rosamond, who owned a repair shop on Jacksboro
Highway, reported a break-in to the Parker County Sheriff’s Office. A Nissan
Maxima that Rosamond had been repairing for a customer had been stolen, along
with a Snap-On battery charger; an air compressor; and some tools, including a wire
17
On cross-examination, Investigator Cox said that he had not interviewed
Bates.
18
welder and a Craftsman impact kit, a Snap-On drill, and some tires and rims.18
Rosamond had fired Stephenson about two weeks before the break-in.
The investigators interviewed Stephenson, who had worked for Investigator
Cox as a trustee at animal control years before. Investigator Cox testified that
Stephenson had admitted to stealing the Maxima from his former employer and that
he told them that Calvert had asked for the Maxima to be stolen.
The search of Calvert’s phone revealed three photos of Nissan Maxima wheels.
A February 24, 2016 message on Calvert’s phone from Offer Up stated, “Patrick
Calvert, Rate your experience selling 19 inch NISSAN rims!” When Investigator
Masters went to the Hill, he found the stolen Maxima, along with “several trailers that
were chopped up” and the cab to something that was covered with a tarp.
4. The Rokus Theft
On December 28, 2015, someone stole welding equipment, tools, and a
homemade red trailer from Rokus, a self-employed welder. It had snowed the night
before, and Rokus had drawn his wife’s attention to the footprints and tracks in their
driveway the next morning before he noticed that his property had been stolen.19
18
The battery charger and air compressor were found during the search of
Calvert’s home.
19
Perrin admitted to the Rokus theft. Rokus ultimately recovered some of his
property—a chain saw, a Ryobi battery charger, one of his batteries, his torch hose,
his cutting head, and two oxygen bottles—but he recovered none of his Snap-On
tools. His Stihl saw was returned, as was his welder, but his trailer had been “cut up
into little bitty 3-foot pieces.”
19
Investigators found Rokus’s oxygen tank during the exterior search of 409 Longhorn
Trail.
Investigator Cox testified that Calvert produced a handwritten bill of sale that
described Rokus’s welding trailer:
Item sold: Welding Trailer w/ Rig 3 Bottles.
Description: Approx 14 ft 10 inch, red colored, welding trailer w/ 15
inch tires single axle. Trailer is homemade and has no plates. Trailer has
(1) Miller Bobcat 225 Welder w/ leads. Trailer has (3) Bottles (2 oxygen,
1 acetylene) and approx. 100 ft of hose w/ torch tips. Trailer has 3 tool
boxes w/ various hand tools and welding gear. Trailer and contents are
sold in an AS-IS condition.
Price: $1,250.
The bill of sale was signed by “Larry Mendez” as the seller and Calvert as the buyer
and was dated December 28, 2015, the same day that the listed items were stolen
from Rokus. Investigator Cox said that Mendez, the purported seller, never came
forward to explain the legitimate acquisition of the items and that the trailer was
located on the Hill, while the welder was found on Graves’s trailer at Adkins’s
residence. The search of Calvert’s phone revealed, among other things, a photo of
the toolbox from Rokus’s welding trailer.
Dearman testified that he had refused to let Perrin leave a red welding trailer
with a $10,000 welder at his house around Christmas, but he did not know what
Perrin had done with the trailer.
5. The Graves Theft
20
On January 20, 2016, Robert Graves reported the theft of his custom trailer. 20
During the exterior search of 409 Longhorn Trail, investigators identified the gate of
Graves’s trailer.
When police interviewed Calvert, he produced a handwritten bill of sale, which
Investigator Cox testified described Graves’s trailer:
Bill of Sale Friday 1/29/16
Item Sold: 10 x 6, wood deck, flat bed, handmade, angle iron trailer.
Price: $750.00.
Trailer is single axle (5 lug).
Trailer sold w/ un-attached expanded metal cargo ramp.
*Trailer is painted primer/black P.C. M.H.
Seller, Manuel Herrera, DL [xxxxxx],[21] 1/29/2016
Buyer, Patrick Calvert, Driver’s License #[xxxxxx], Jan. 29th 2016.
During the interview, Calvert denied having bought Graves’s custom trailer or that his
bill of sale described it despite its gate being found at 409 Longhorn Trail.
Investigator Cox said that Graves’s trailer was found at Adkins’s residence.
6. The Whitener Theft
20
Perrin admitted to the Graves theft.
21
Investigator Cox ran Herrera’s purported driver’s license number but nothing
came up.
21
On January 30, 2016, Whitener reported the theft of his trailer.22 During the
exterior search of 409 Longhorn Trail, the investigators located Whitener’s trailer,
which they identified using the last six digits of the VIN on the trailer’s gooseneck.
Deputy Cox testified that Calvert’s handwritten bill of sale dated November 19,
2015 described Whitener’s trailer:
Date: 11/19/15.
Sold: 20 ft flat bed trailer w/ [unreadable] sides.
Sold in AS IS condition.
Price: Traded for Craftsman Toolbox w/ automotive tools.
Seller: Cody Dearman 817-751-[xxxx].
Buyer: Patrick Calvert, 817-314-[xxxx].
7. The Ford F-550 Theft
The search of Calvert’s phone revealed, among other things, a photo of Perrin
sitting in the driver’s seat of the Ford F-550 listed in the indictment.23
C. Corroboration Analysis
Based on the above, rational jurors could have found that the evidence
sufficiently tended to connect Calvert to the offense such that accomplice-witness
22
Perrin admitted to the Whitener theft.
23
Perrin stole the Ford F-550 on February 16, 2016—less than two weeks after
he stole the bait trailer—and he told police that he had committed the crime alone.
22
testimony could be considered. See Smith, 332 S.W.3d at 442. That is, deferring to the
factfinder’s resolutions, the nonaccomplice evidence showed that:
• Sampley and Jacobson had stolen the Isuzu truck, Calvert had downloaded the
vehicle’s specifications onto his phone and had posted parts of it for sale on
Craigslist and eBay, and Calvert’s DNA was found on a cigarette butt in the truck’s
freight box;
• Calvert had handwritten a “bill of sale” backdated from before the date of the
theft of Barnett’s Wells Cargo trailer, which was found being painted outside
Calvert’s residence at 409 Longhorn Trail;
• Stephenson had stolen the Maxima along with other items from Rosamond’s shop
where he used to work and related items from that theft were found in Calvert’s
residence, and Calvert’s phone contained photos of the vehicle’s wheels and an
email from Offer Up inviting him to rate the experience of selling the vehicle’s
rims;
• Calvert had handwritten a “bill of sale” dated the same date as the theft for
Rokus’s $12,800 trailer, tools, and equipment that had been stolen by Perrin, and
some of these items were found on Calvert’s property;
• the tailgate of Graves’s custom trailer was found outside Calvert’s residence at 409
Longhorn Trail;
• Calvert had handwritten a “bill of sale” matching the description of Whitener’s
trailer, backdated from before Perrin’s theft of Whitener’s trailer; and
• Calvert had a photo of Perrin in the stolen 2015 Ford F-550 on his cell phone.
D. Accomplice Evidence
Stephenson, Perrin, Sampley, and Morgan were listed as accomplices in the
indictment.
1. Stephenson’s Testimony
23
Thirty-two-year-old Stephenson, who testified in jail clothes, had several
convictions ranging from misdemeanor assault on a family member to burglary of a
habitation, and his incarceration at the time of the trial was for theft of property,
$30,000 to $150,000, to which he had pleaded guilty in exchange for a 15-year
sentence. He met Calvert in 2015 when he went to Dearman’s house to pick up some
drugs, and for a short time, he had dated Calvert’s daughter. He got into debt to
Calvert for drugs and stole in order to pay his debt.
Stephenson said that the first thing he stole was the Maxima from Rosamond’s
shop. Stephenson claimed that he had been the only person involved in that burglary
and that he had loaded up the Maxima with a welder, a little air compressor, a set of
rims, and “just some other little tools.” He had taken it to Calvert’s residence on
Longhorn Trail because Calvert had told him that he could not have more drugs until
he paid off his $300 or $400 debt.
Stephenson met Perrin at Calvert’s, and they had used drugs together two or
three times, but Stephenson said that he never stole anything with Perrin. He recalled
seeing someone in a little silver SUV pull a red two-wheeled trailer with a welder on it
to Calvert’s residence in late December or early January.
Stephenson knew Edward Roden and said that he had seen the white dry-
freight box on the property where Roden lived.24 Stephenson said that Calvert told
24
Morgan testified that Roden lived with Duck, who lived at 234 Pioneer Trail.
24
him he would pay him to break apart the truck, so he “just tore it apart, took the cab
off of it, [and] took the motor out of it.” He started tearing apart the box truck in
December, while he was dating Calvert’s daughter, and it took him 12–15 days. He
denied that he was ever part of any organized crime scheme to sell trailers or that
Calvert had sent him to steal a car.
2. Perrin’s Testimony
Perrin testified in jail clothes because at the time of Calvert’s trial he was
serving a seven-year sentence for possession of a controlled substance. Perrin had
also pleaded guilty to engaging in organized criminal activity in exchange for seven
years’ confinement and his truthful testimony.
Perrin had a number of drug and burglary convictions and said that he had
known Calvert, a friend of a mutual friend, since 2015 and had used
methamphetamine with him a few times. Perrin testified that he never paid Calvert or
gave him stolen property in exchange for drugs. He acknowledged that stolen
property had ended up at 409 Longhorn Trail and said that when he was high, he
stole things for the sake of stealing them and then dumped things “just random
places.” He claimed that he did not know what Calvert would do with the property
that he had dumped and that he did not care that he never received any proceeds.
Perrin said that he had sent photos to Calvert and others to brag about stuff he had
stolen.
25
Perrin admitted that he had stolen the Ford F-550. Police searched the Ford F-
550 pursuant to a warrant, and photos from the search were admitted into evidence.
Inside the truck, among other things, was a Milwaukee Saws-all with the initials “PC”
on it. There was also a box of power tools, some bolt cutters, a bag containing two
small hand-held radios, a “Slim Jim” like the one seen at Calvert’s residence, and some
dark clothing; there was also a paint sprayer in the truck’s bed.
Perrin admitted to stealing a trailer that had kitchen equipment on it, stating,
“Yeah, I think they even got me on videotape stealing that one.” 25 He also admitted
to stealing a trailer from the Canyon West area—a theft that was also videotaped. He
admitted to the Graves theft but said that he did not know how that trailer’s tailgate
had ended up at 409 Longhorn Trail. Perrin said that he had dropped off property at
Calvert’s when Calvert was not there to ask him any questions about it but that
anything he had left at Calvert’s was meant to be stored, not for Calvert to sell. He
denied having gone to Pioneer Trail or to the Hill on Mesa Trail and said that Calvert
had never instructed him to steal anything.
Perrin knew Sampley from his bartending days, when Sampley had been a
patron. Perrin said that Sampley had nothing to do with the theft of the b ait trailer
and had just been there to pick up Perrin. He used heroin with Sampley. Perrin knew
25
Kapil Adhikari, who owned several gas stations in Parker County, testified
that he had called the Parker County Sheriff’s Office on January 28, 2016, to report
the theft of his black trailer, which had a “hot box for food preparation” on top of it.
There was surveillance video of the theft.
26
Jacobson because they had worked together at a restaurant and had used drugs
together. Perrin denied that they had stolen anything together. Perrin said that he
had met Stephenson one time. Perrin said that Morgan was with Calvert when he had
met her but that “everybody kn[ew] her” because she had a reputation for getting
around.
Perrin denied that he had any agreement or intent to establish a combination
with Calvert, Sampley, Jacobson, Morgan, or Bates with regard to the Ford F-550, the
bait trailer, Graves’s trailer, or Whitener’s trailer and said that he did not know
anything about the Maxima, Barnett’s trailer, or the Isuzu truck.
3. Sampley’s Testimony
Sampley was bench-warranted to the trial to testify. He had a number of drug
and theft convictions, including one for theft of property under $2,500 for which he
was serving a 20-year sentence at the time of the trial. Sampley said that he and Perrin
had used heroin together, but he did not recall ever using any drugs with Calvert. He
said that he had met Calvert once with Perrin.
Sampley claimed that he did not commit any thefts with Perrin or see Perrin
commit any thefts and that although he had seen Perrin with severa l trailers, he had
never asked Perrin where he had obtained them. Sampley said that Perrin had
brought a couple of trailers by his place when he had stopped to get high but that
Perrin had then taken off again with the trailers. Sampley recalled that on one snowy
day, Perrin had stopped by with a trailer that had a flat tire, and Sampley had helped
27
him change it. But he denied having helped Perrin dispose of the trailer or having
helped Perrin steal it.
Sampley noted that when he saw the Maxima and the cab of the Isuzu truck, it
appeared to him that Calvert and Perrin were moving those items.
Sampley denied having stolen NSP’s Isuzu truck but acknowledged his
friendship with Jacobson, who had worked at NSP with him. He denied knowing
Morgan or Stephenson but said that he had met Dearman in the Parker County Jail
“some years back.” Sampley denied having ever entered into any kind of agreement
with Calvert, Perrin, Jacobson, Bates, Morgan, or Stephenson to steal property or to
sell or dispose of stolen property.
4. Morgan’s Testimony
Morgan had prior convictions for criminal mischief (stolen checks) and
manufacturing a controlled substance (methamphetamine). She testified that in 2015
and 2016, Calvert had offered her a place to stay with “no strings.” She took him up
on it because she was homeless. Morgan claimed that she and Calvert were just
friends and had used methamphetamine together.
Morgan, who had been looking for a job while she stayed with Calvert, said
that Perrin had come by the house, as had Stephenson and Dearman. She did not
recall if Sampley or Young did.
When asked if she had seen the Wells Cargo trailer on the property, Morgan
said yes and also said that Calvert had told her that he and a friend had gone “in on it
28
in halves.” She thought it was odd that he was painting it because it appeared to be a
brand new trailer and did not need a paint job. Morgan claimed that she never went
with Calvert to steal trailers or to deliver trailers to others.
Morgan said that she saw trailers brought to Calvert’s property but that she
never saw who had left them. She did not know an individual named “Manny.”
Morgan took Investigator Masters to the Hill and said that there was just a
bunch of metal and a car there; she denied knowing how the car ended up there.
Morgan said that Calvert had never told her why he had taken items to the Hill or to
Pioneer Trail.
Morgan also gave the following testimony:
Q. (By [prosecutor]) Did Mr. Calvert ever threaten you?
A. Once.
Q. When was that?
A. It was – I’m not real sure of the date or whatever, but we got
in a heated argument; and you know, he did threaten me.
Q. Was this after he got arrested or before?
A. Before.
Q. Okay. Was it regarding the things that he got arrested for?
A. He was like running -- trying to get some receipts and stuff,
and he couldn’t.
Q. Well, tell us about that. What do you mean: He was trying to
get some receipts?
29
A. He was trying -- the cops told him that he needed to come up
with a bill of sale for a trailer or something, and he was just trying to
come up with that. And he was just, you know, hot-headed about
everything.
Q. And when he was trying to come up with the receipt, was he
making up a receipt? Wasn’t he falsifying one?
A. I didn’t see him write one out, but yes.
Q. And how do you know that? That he was trying to falsify one?
A. He was talking about it.
Morgan said that when she visited Calvert in jail, Hooper had wanted her to ask
him some questions on a paper that she had held up to the window for Calvert to
read. She said that she thought the questions had to do with axles and that Hooper
had wanted to know what Calvert “wanted him to do with the stuff.” Morgan also
said that when Calvert told her that he wanted her to take the lead position, he meant
for her to take care of the stolen property that he was selling and to be in charge of
the organization. During the conversation, Morgan told Calvert that Hooper had told
Duck—Adkins’s nickname—to get rid of the box if he could for $500, to keep $200,
and to give her and Calvert the rest.
Morgan explained that Duck had the trailer house where the Morgan dry-
freight box was located. Roden, who lived with Duck, was someone Morgan had
known for a very long time. Morgan said that she was sure Calvert had known that
the goods were stolen and that he was the ringleader, and in their recorded
30
conversation, she told him that someone in Johnson County had said that “Charles”
(Perrin’s first name) was “singing like a canary.”
During cross-examination, Morgan said that she did not recall who was in the
criminal organization, that she had never agreed to take care of a criminal
organization, and that she was not a part of one. She admitted that after she had left
Calvert’s house the day after their conversation at the jail, she did not take care of
anything for him. Morgan acknowledged that the Hill was owned by one of her ex -
boyfriends. She also acknowledged that while living with Calvert, she went to stay at
her father’s property on Horseshoe Bend, where Perrin had a trailer.26 Morgan denied
that she had been dating Dearman while seeing Calvert. Morgan said that she could
not tell if she was the woman in a photo of the freight box.
E. Sufficiency Analysis
Calvert argues that the evidence is insufficient to support his conviction
because the State failed to prove that he had committed one or more of the
enumerated offenses with the intent to establish, maintain, or participate in a
combination of named people as a prerequisite to a finding of guilt on engaging in
organized criminal activity. He further argues that the State failed to prove that he
was guilty under the law of parties and that “no combination was ever shown to have
26
It is unclear from the record whether the “trailer” referred to by Morgan in
this portion of her testimony was a residence or a trailer like the ones at issue in this
case.
31
existed involving any of the people listed on the indictment.” Calvert asserts that
there was no evidence showing that he had stolen any of the property, had helped
anyone steal the property, or had directed anyone else to steal the property or that he
had entered into an agreement with any of the alleged combination members to
engage in a course of criminal activity. We disagree.
In addition to the corroborating evidence set out above that tied Calvert to the
seven thefts, the jury could have found that Morgan’s testimony—that Calvert was the
ringleader and that Calvert had falsified at least one bill of sale—applied to the thefts
of the Graves, Rokus, Barnett, and Whitener trailers and showed Calvert’s knowledge
that the property had been stolen and his intent to establish, maintain, or participate
in a combination or in the profits of a combination with, respectively, Perrin and
Morgan as to the Ford F-550 and the Graves and Whitener trailers; Perrin,
Stephenson, Sampley, and Morgan as to the Rokus trailer; and Bates and Morgan as to
Barnett’s trailer.
From Morgan’s testimony and the recorded conversation that she and Calvert
had at the jail, the jury could also have determined that Morgan herself knew about all
of the items of property that had been stolen and that she intended to participate in
the combination or the profits thereof despite her testimony that she was not
involved. See Franklin v. State, 193 S.W.3d 616, 620 (Tex. App.—Fort Worth 2006, no
pet.) (“[T]he jury is free to accept or reject any or all of the evidence of either party,
and any or all of the testimony of any witness.”). Perrin denied having collaborated
32
with Calvert, Morgan, Sampley, Jacobson, or Bates as to the Ford F-550, which he
claimed that he took for his personal use only, and that the photos on his phon e and
on Calvert’s phone were only for bragging rights, but the jury was free to disbelieve
this as well. See id.
As to the Rokus theft, Stephenson testified that he saw someone deliver the
Rokus trailer to Calvert’s residence but disclaimed ever stealing anything with Perrin,
who had admitted to stealing the Rokus trailer. The Rokus trailer was stolen after it
had snowed, and Sampley recalled helping Perrin change a trailer tire on a snowy day
but denied helping Perrin steal or dispose of the trailer. While Perrin denied any
interest in profiting from stealing the trailers or that Calvert had ever instructed him
to steal anything, the jury was entitled to disbelieve their denials. As Perrin had, in
fact, confessed to many of the thefts, the jury could have inferred that he was the
“Charles” to whom Morgan and Calvert had referred in their conversation at the jail
when Morgan told Calvert that “Charles was singing like a canary.”
As to Barnett’s trailer, while Investigator Cox said that he had not interviewed
Bates, the jury was entitled to believe Dearman’s testimony that Bates had dropped
the trailer off at Dearman’s house for Calvert.
As to the Isuzu truck, the jury could have found that Sampley and Jacobson
had stolen the vehicle either for Calvert or in collaboration with Calvert, who had left
his DNA on a cigarette inside of the vehicle’s box, who had paid Stephenson to help
him tear it apart, who had downloaded the vehicle’s specifications onto his phone,
33
and who had posted parts of it for sale on Craigslist and eBay. They also could have
found that Perrin was involved in light of Sampley’s testimony that it had appeared to
him that Calvert and Perrin were moving the vehicle’s cab. Although Sampley and
Stephenson both denied being part of an organized crime scheme, the jury could have
chosen to disbelieve this portion of their testimony, particularly in light of Morgan’s
testimony that Calvert was the group’s ringleader.
Finally, Stephenson admitted to stealing the Maxima and other items, some of
which were found in Calvert’s residence, and he told Investigator Cox that Calvert
had asked him to steal the Maxima although he denied having said this during his
testimony at trial. The jury was entitled to believe Investigator Cox and to disbelieve
Stephenson’s denial. Sampley testified that it had appeared to him that Calvert and
Perrin were moving the Maxima, and Calvert’s phone contained photos of the
vehicle’s wheels and an email from Offer Up asking him to rate his experience of
selling the vehicle’s rims. The vehicle was found at the Hill after Calvert and
Morgan’s recorded jail conversation. Thus, the jury could have found that Calvert,
Stephenson, Perrin, Sampley, and Morgan were involved in the Maxima’s
appropriation. In summary,
Stolen Property Accomplices
Ford F-550 Perrin, Morgan
Graves’s Trailer Perrin, Morgan
Rokus’s Trailer and Tools Perrin, Stephenson, Sampley, Morgan
Barnett’s Trailer Bates, Morgan
Isuzu Truck Sampley, Jacobson, Morgan, Stephenson, Perrin
34
Whitener’s Trailer Perrin, Morgan
Maxima Stephenson, Sampley, Perrin, Morgan
Because the evidence is sufficient to support Calvert’s conviction for engaging
in organized crime, we overrule his ninth point.
IV. Judicial Bias
In his second point, Calvert argues that the trial judge abused his discretion by
refusing to recuse himself. Although Calvert complains that he notified the judge of a
conflict of interest in 201627 and recites various other instances that he claims showed
the trial judge’s personal bias against him, the record does not reflect that Calvert (or
any of his numerous appointed counsel over the course of the case) 28 filed a motion
to recuse. Accordingly, there is nothing before us to review, and we overrule Calvert’s
second point. Cf. Gaal v. State, 332 S.W.3d 448, 456 (Tex. Crim. App. 2011) (“An
appellate court reviews an order denying a motion to recuse under an abuse of
discretion standard.”).
27
The conflict referenced by Calvert is the trial judge’s former representation of
him and his mother in their respective divorces. But these are not grounds for
disqualification or recusal because these civil cases were not the instant criminal
“matter in controversy,” cf. Tex. R. Civ. P. 18b(a), (b)(5), and on its face, the record
does not reflect any other potential grounds for disqualification or recusal. See Tex. R.
Civ. P. 18a(3) (stating that a motion to recuse “must not be based solely on the judge’s
rulings in the case”). The procedures for recusal of judges set out in Texas Rule of
Civil Procedure 18a apply in criminal cases. De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex.
Crim. App. 2004) (orig. proceeding).
28
Calvert went through five appointed counsel during the pretrial and trial
phases of this case.
35
V. Speedy Trial
In part of his fourth point, Calvert complains that he was denied his right to a
speedy trial and that his appointed counsel refused to file a motion for a speedy trial.
But the record reflects that Calvert’s second appointed counsel filed a motion for
speedy trial on November 30, 2016, the same month that Calvert was indicted for the
instant offense. In her motion, Calvert’s then-appointed counsel recited that Calvert
had been arrested on February 24, 2016; had been indicted in two other cause
numbers on May 19, 2016, based on the same facts as the instant case; and had been
in jail continuously since February 24, 2016.
In his reply brief, Calvert states that there was a hearing on June 20, 2018, at
which his defense counsel asked for a ruling on the speedy trial issue. We
supplemented the record with the June 20, 2018 hearing.
The first issue addressed at the June 20, 2018 hearing was Calvert’s request for
a bond reduction; his counsel noted that Calvert had been held since February 2016—
“approximately 28 months.” According to Calvert’s counsel’s recitation at the
hearing, when Calvert’s second appointed counsel was released from representing
Calvert on September 5, 2017, the trial court pointed out to Calvert that “there would
be a delay caused by this and that this is a complex case and any new attorney would
need time to get up to speed” and asked Calvert if he was okay with that delay, and
Calvert responded, “Yes, sir.” Calvert’s counsel asked the trial court for a clarification
of whether this constituted a waiver of Calvert’s right to a speedy trial, and the trial
36
court informed the parties that it would make a ruling “via email” that afternoon. No
evidence was presented at the hearing with regard to the Barker v. Wingo factors. See
407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1979). The trial court subsequently issued an
order reducing Calvert’s bond the next day, but the record does not contain the ruling
on Calvert’s counsel’s request for clarification as to the motion for speedy trial. While
we may infer that the trial court either found the speedy trial complaint waived or
otherwise overruled it from the fact that Calvert actually went to trial, without the
presentation of evidence on the record with regard to the complaint, this point has
not been preserved for our review. See Tex. R. App. P. 33.1(a); Henson v. State, 407
S.W.3d 764, 769 (Tex. Crim. App. 2013) (noting that at least two of the Barker v.
Wingo factors—the reason for the delay and the prejudice to the accused—are fact-
specific inquiries that may not be readily apparent from the trial record without a
hearing). We overrule this portion of Calvert’s fourth point.
VI. Jury Selection
In his third point, Calvert complains that the jury was tainted by a conflict of
interest because Ronnie Arlan Williams Jr. became a juror even after he had identified
himself as the cousin of Rosamond, one of the theft victims.
During voir dire, Williams stated, “Randy Rosamond. That’s my cousin,” but
when asked whether the fact that Rosamond was his cousin would have any bearing
on his ability to be a fair and impartial juror, Williams replied, “I don’t think so.”
After the prosecutor informed the trial court that she thought a challenge for cause
37
would be appropriate as to Williams because he had said that he could not consider
the full range of punishment, the trial court added, “He also knows the witness,
correct?” After Williams stated that he could consider the full range of punishment,
the prosecutor withdrew her challenge for cause; Calvert’s defense counsel asked
Williams no questions and did not make a challenge for cause.
Citing Anderson v. State, 633 S.W.2d 851, 854 (Tex. Crim. App. [Panel Op.]
1982), the State acknowledges that bias exists as a matter of law when a prospective
juror “is related to the State’s primary witness” and that Williams, as a cousin of one
of the witnesses in the case, was therefore arguably subject to a challenge for cause.
We need not decide that issue here. As the State points out, Calvert did not raise a
challenge for cause. Therefore, he failed to preserve anything for our review. See id.
(stating that the trial court has discretion to determine whether bias exists and when a
trial court overrules a challenge for cause, the decision will be reviewed in light of all
of the answers the prospective juror gave). We overrule Calvert’s third point.
VII. Extraneous Offense Evidence
In part of his fifth point,29 Calvert complains that the trial court abused its
discretion by admitting extraneous offense evidence with regard to State’s Exhibits 3
through 36, a total of 41 photographs taken in Calvert’s residence that showed a
29
In the remainder of his fifth point, Calvert again complains that the trial judge
was biased against him, which we addressed above with regard to his second point,
and that the prosecutors’ actions constituted prosecutorial misconduct, which we
address below in conjunction with his sixth point.
38
variety of tools and equipment from which many had had their identifying
information removed,30 and with regard to Investigator Masters’s testimony about the
uncharged theft of Adhikari’s trailer.
Calvert refers us to some of the following dialogue during Investigator Cox’s
testimony with regard to the challenged photographs; for completeness, we have
added some of the conversation prior to his references:
[Prosecutor 1]: Judge, I’m offering State’s 3 through 36. I
will tell the Court and Counsel a couple of these have sticky notes.
I’m not offering those. I’ll pull those off when I’m addressing the
witness.
(State’s Exhibit Nos. 3–36 offered.)
[Defense counsel]: I understand. No objection, Your
Honor.
THE COURT: 3 through – State’s 3 through 36 are
admitted.
(State’s Exhibit Nos. 3–36 admitted.)
....
Q. All right. State’s Exhibit Number 3, is there anything of
significance to this picture?
A. There is. There is a Snap-[O]n battery charger sitting
underneath the portrait hanging on the wall that was stolen from a -- . . .
30
Calvert also argues that the trial court violated Rule of Evidence 104(b), but
his counsel did not raise that rule in his objections. See Tex. R. Evid. 104(b) (“When
the relevance of evidence depends on whether a fact exists, proof must be introduced
sufficient to support a finding that the fact does exist. The court may admit the
proposed evidence on the condition that the proof be introduced later.”).
39
It’s a Snap-[O]n battery charger that was stolen from a burglary of a
building off of 199.
Q. Anything else about these items that were --
[Defense counsel]: Objection, Your Honor.
THE COURT: I’m sorry?
[Defense counsel]: Objection.
THE COURT: What is your objection?
[Defense counsel]: It’s an extraneous conduct. It’s not charged in
this indictment.
THE COURT: What do you say, [Prosecutor 1]?
[Prosecutor 1]: I think that that absolutely goes to the
burden that the State has to prove an engaging, is that there’s a
conspiracy, that there’s a plan, that there’s a scheme.
[Prosecutor 2]: We should approach.
(At the Bench.)
[Defense counsel]: Once again, he’s not charged with
conspiracy. They could have charged in the [engaging-in-
organized-crime offense] and said: And he did conspire. They
didn’t show conspiracy. They said he did commit these seven or
eight discreet acts -- specific acts. Everything else is uncharged
misconduct.
[Prosecutor 2]: Your Honor, going to 404, we can also
prove up extraneouses [sic] if it goes to show a common scheme,
which has nothing to do with whether it’s a conspiracy or not. It’s
still a common scheme or plan. Keep in mind this is an
aggregated charge. This is a continuing course of conduct.
[Prosecutor 1]: Absence of mistake. All of the laundry list
that is in 404(b), which is candidly exactly what this kind of case is
40
there for because there is all this other stuff that makes up the
plan.
[Defense counsel]: It is a burglary off of 199. Tarrant
County, wasn’t it? Is that even something I have in my discovery?
I don’t know.
THE COURT: The only thing I heard the witness testify to
is this a -- this is a Snap-[O]n battery charger that was stolen from
-- was stolen from wherever he said.
[Defense counsel]: Correct.
THE COURT: 199 or wherever. What was your objection,
[Defense counsel]?
[Defense counsel]: Objection is that’s extraneous conduct; but
also, I don’t know what police report I was ever provided that
said there was a burglary off 199 -- of a building off 199. Now,
maybe I’m wrong because I got a lot of police reports, but I’m
pretty sure I’m not. If I haven’t been provided that, then I would say that
my additional objection is under 39.14, and that goes against my Michael
Morton Act, and so I would object to anything that I have not been provided.
[Prosecutor 1]: Judge, while I can’t say off the top of my
head that he’s been provided with the burglar[y] report, I can tell
you that he was provided with State’s Exhibit 44, which
specifically lists that item.
[Defense counsel]: Well, it lists the item[] but not the
context of the item.
[Prosecutor 2]: Well, and I would go further to say also
nobody’s accused Mr. Calvert of stealing this object.
THE COURT: Well, that’s what I was going to note is that.
[Defense counsel]: But the dangerousness is -- and the
reason they want it is because it’s part of the continuing scheme.
So then we have these items there, and they’re going to say this is
part of that scheme or conspiracy or whatever, and so that’s
41
effectively in the minds of the jury the same thing. That’s the
dangerousness of it for 403, 401.
[Prosecutor 2]: And that’s why there’s a limiting instruction
regarding 404(b) for that purpose.
THE COURT: If you find --
[Prosecutor 2]: Right.
[Prosecutor 1]: And also, Judge, going back to --
THE COURT: Hang on. Hang on. They’re saying they’re
hearing the white noise as well as me. I’m going to overrule your
objection.
[Defense counsel]: Thank you, Your Honor. May I have a
continuing objection to --
[Prosecutor 1]: There’s going to be quite a few things.
[Defense counsel]: That’s what I figured.
THE COURT: That’s fine.
[Prosecutor 1]: So that will be the continuing objection between 3
and 36 with anything that wasn’t contained in the indictment?
[Defense counsel]: Correct.
[Prosecutor 1]: Okay.
THE COURT: So noted. [Emphases added.]
Calvert also refers us to the following dialogue outside the jury’s presence
regarding the admissibility of Investigator Masters’s testimony about the theft of
Adhikari’s trailer:
42
THE COURT: Adhikari. [Defense counsel], your
objections were that it was -- the probative value outweighed --
it’s --
[Defense counsel]: More prejudicial than it is probative, Your
Honor; and it’s also that it’s extraneous conduct.
THE COURT: Okay. And your response to that,
[Prosecutor 2] was?
[Prosecutor 2]: Well, that extraneous conduct can come in
for various reasons, that being motive, opportunity, intent,
preparation, plan, knowledge, absence of mistake, common
scheme; and that it is -- while it may be prejudicial, any evidence
against anyone is going to be prejudicial, Your Honor. And so --
but it is also very probative in proving up these facts; and
honestly, the courts have -- in the recent years, they lean more
towards admitting evidence rather than excluding evidence.
THE COURT: If it wasn’t probative, it would be irrelevant
--
[Prosecutor 2]: That’s correct, Your Honor.
THE COURT: -- or prejudicial.
[Prosecutor 2]: It could be both. It’s going to be both.
THE COURT: It could be. If it wasn’t prejudicial, it would
be irrelevant.
[Prosecutor 2]: That’s right.
THE COURT: I’ll give you the last word, [Defense
counsel].
[Defense counsel]: I would just say it’s unfairly prejudicial.
The State had every opportunity to add this charge to their
indictment, to let -- actually, they charged it on a totally separate
indictment. This was the[ir] choice and charging philosophy,
43
whatever that philosophy may be. That, again, they don’t need
this. They’re not telling you that this is necessary for any purpose.
[Prosecutor 2]: Well, we told you it was necessary for the
purposes I just listed.
[Defense counsel]: They haven’t told you how it’s
necessary. They just told you it was necessary. They don’t need
this to make the elements of the indictment on this case. One
more trailer? I think there’s nine trailers on this indictment. I
don’t see how that’s necessary. I think it’s just piling on;
therefore, it’s unfairly prejudicial.
THE COURT: And the Court is going to overrule your
objection. [Emphasis added.]
As to the photographs, Calvert complains that the trial court abused its
discretion by overruling his counsel’s objections to lack of notice, to extraneous
offense evidence under Rule 404(b), to relevance under Rule 401, and to prejudice
under Rule 403. Calvert argues that the trial court did not perform a Rule 403
balancing test, contending that the trial court did not have enough information to
perform a balancing test and that its decision to admit the evidence “was made
spontaneously, arbitrarily, and shows a continued pattern of disregarding due process
to entertain the prosecution.” He also argues that while “the erroneously admitted
evidence purported to show a scheme or plan, . . . [it] really was intended to show
character conformity by creating a false impression that a string of other crimes had
occurred and that [Calvert] was involved.”31 And with regard to testimony about the
31
Calvert also states, “Exhibits 3, 6, and 8 are pictures of items stolen by
Chance Stephenson who testified to being alone when he did it. The remaining 36
44
theft of Adhikari’s trailer, Calvert complains that the trial court ignored the
requirements of Rules 403 and 404(b).
All errors, except federal constitutional errors labeled as “structural” by the
United States Supreme Court, are subject to a harm analysis under Rule 44.2. Jordan v.
State, 256 S.W.3d 286, 290 (Tex. Crim. App. 2008). Accordingly, assuming without
deciding that the trial court abused its discretion by admitting the challenged
photographs and testimony about Adhikari’s trailer, and to the extent that Calvert
preserved these errors,32 we will conduct a harm analysis to determine whether
reversible error occurred.
Generally, the erroneous admission or exclusion of evidence is
nonconstitutional error governed by Rule 44.2(b) if the trial court’s ruling merely
offends the rules of evidence. See Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim.
App. 2001); see also Walters v. State, 247 S.W.3d 204, 222 (Tex. Crim. App. 2007)
pictures show tools, the majority of which had matching receipts right there in the
courtroom.” We infer from that description that Calvert is referring to State’s Exhibit
2, the “shoebox of receipts.” However, in our review of State’s Exhibit 2, we found
only three receipts that might have matched some of the items found in Calvert’s
residence: a May 31, 2015 receipt for a “4 Gal wheeled stack tank compressor,” an
April 29, 2015 receipt for a “Milwaukee 18V 1-Hand Recip Saw Kit,” and an invoice
to Branch Counter Sale San Antonio Branch from Milwaukee Electric Tool Corp. for
a “M18 Battery 2 Pak.”
32
Among other things, the State argues that Calvert failed to preserve these
complaints because his objections were untimely (i.e., after the evidence had been
admitted without objection) and because the same evidence came in without objection
later in the trial. The State does not address Calvert’s arguments about the theft of
Adhikari’s trailer.
45
(determining that exclusion of evidence supporting appellant’s defensive theory was
nonconstitutional error). But cf. Tiede v. State, 76 S.W.3d 13, 14 (Tex. Crim. App.
2002).33
Rule 44.2(b) requires us to disregard any nonconstitutional error that does not
affect an appellant’s substantial rights. Tex. R. App. P. 44.2(b). An error that has a
“substantial and injurious effect or influence in determining the jury’s verdict” affects
a substantial right. Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005); King v.
State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328
U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a
substantial right if we have “fair assurance that the error did not influence the jury, or
had but a slight effect.” Solomon, 49 S.W.3d at 365; Johnson v. State, 967 S.W.2d 410,
417 (Tex. Crim. App. 1998).
In determining the likelihood that a nonconstitutional error adversely affected
the jury’s decision, we review the record as a whole, including any testimony or
physical evidence admitted for the jury’s consideration, the nature of the evidence
supporting the verdict, and the character of the alleged error and how it might be
considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d
33
While Calvert complains that the trial court’s evidentiary rulings violated his
right to a fair trial and to due process, as reflected above in our recitation of the
dialogue between counsel and the trial court, these were not grounds raised by his
counsel during trial. Therefore, these complaints were not preserved for our review.
See Tex. R. App. P. 33.1(a).
46
352, 355 (Tex. Crim. App. 2002). We may also consider the jury instructions, the
State’s theory and any defensive theories, whether the State emphasized the error,
closing arguments, and even voir dire, if applicable. Haley, 173 S.W.3d at 518–19;
Motilla, 78 S.W.3d at 355–56.
We have already set out a thorough review of the evidence in our factual
recitation and sufficiency analysis and concluded that the evidence is sufficient to
support Calvert’s conviction. During voir dire, both parties discussed the elements of
the offense, the burden of proof, and the jury’s responsibility to judge the credibility
of the witnesses. The prosecutor asked the venire panel to identify some of the ways
to prove that someone knew that the property they possessed had been stolen, and
the potential jurors suggested removal of serial numbers, lack of paperwork,
testimony from witnesses that were present during or after the theft, and email
documentation.34
The prosecutor’s opening statement acknowledged that law enforcement had
to put together the “pieces of the puzzle” to determine how the various thefts were
related to Calvert for one scheme for profit, including—among other things—
Calvert’s shoebox of receipts and “questionable bills of sale,” the stolen trailers left on
property tied to Calvert, and Calvert and Morgan’s recorded jail conversation. The
34
The prosecutor also introduced the concept of conspiracy over defense
counsel’s objection that conspiracy had not been charged. The prosecutor explained,
“We’re just talking about just generalities and laws.” The trial court overruled defense
counsel’s objection.
47
prosecutor mentioned that from the search of Calvert’s residence the jury would “see
lots of tools that had serial numbers, identifying information, scraped off,” but she
also listed surveillance videos, cell phone information, DNA evidence, and testimony
from some of the thieves and the property owners as evidence connecting Calvert to
the offense.
Defense counsel’s opening statement focused on witness credibility, telling the
jury that the State had plumbed the depths of Parker County and the prison system
and had “collected what rose from the bottom, and those are the people who are
going to testify in this case,” including thieves, drug dealers, drug users, and a
pornographer. He stated, “The State has friends in low places, and they’re all going to
bring them here to you . . . . That’s what this case rests on, the words of a bunch of
criminals.” Calvert’s counsel told the jury that they would not hear that Calvert had
ever gone onto anyone’s property and committed a theft and that they had to keep in
mind the “magic number” of three to reach organized crime. He told them that
Perrin would tell them that he was never compensated for the thefts he had
committed when he was on drugs and that there was no agreement between him and
Calvert to do so.
The jury charge defined the offense in the abstract and application paragraphs35
but did not mention the extraneous tools or Adhikari’s trailer. The charge also
35
We discuss Calvert’s jury charge complaints below.
48
included a lesser-included offense of theft and instructions on the presumption of
innocence, the standard for the State’s burden of proof, the privilege against self-
incrimination, the law of parties, and the standard for accomplice testimony, and it
informed the jury as follows with regard to extraneous offenses:
You are instructed if there is any testimony before you in this case
regarding the defendant’s having committed offenses other than the
offense alleged against him in the indictment in this case, you cannot
consider said testimony for any purpose unless you find and believe
beyond a reasonable doubt that the defendant committed such other
offenses, if any were committed, and even then you may only con sider
the same in determining the motive, intent, preparation, plan, or
knowledge of the defendant, if any, in connection with the offense, if
any, alleged against him in the indictment in this case, and for no other
purpose.
After the trial judge read the charge to the jury, during closing arguments, the
prosecutor reminded the jury that argument was not evidence and then said that the
evidence showed that Calvert was not the thief but that his friends were. She stated
that although defense counsel said that the State had dug up its witnesses “in the
mud,” that “actually, [the State had] just [gone] to [Calvert’s] address book . . . because
these are the people that he hangs with.” She credited Calvert with being smart
enough to let others bear most of the risk of getting caught and that he was the
common denominator.
The prosecutor mentioned some of the extraneous evidence, stating,
[Y]’all saw so much property inside [Calvert’s] residence where he lived,
around the outside of his residence, that there is absolutely no way that
an individual could be in that area and not know that something was not
49
on the up and up. You just don’t keep, you know, two air compressors on your
kitchen floor. [Emphasis added.]
But she also talked about how although the accomplices “all minimized [their
involvement] to some extent,” she also thought that they had told the truth to some
extent. The prosecutor referenced the DNA evidence that tied Calvert t o the truck
box found on Pioneer Trail and the photographs on Calvert’s phone, and she pointed
out to the jury that the State had abandoned the portion of the charge on the bait
trailer after Perrin testified that he had committed the bait trailer theft on his own.
She reminded the jury that Huebner had said that Calvert had lost his formal job
before Christmas, which was around the same time that the thefts had occurred. And
she argued that there was “no way that [Calvert] couldn’t know, didn’t direct, didn’t
encourage, didn’t aid all these folks to do whatever he wanted them to do. He needed
money. He needed the dope. These folks helped him.”
Defense counsel reminded the jury that he had told them in his opening
statement that Calvert did not steal anything and “that is essentially what the State just
conceded.” And he argued that there was no evidence that Calvert had told Perrin to
steal anything or aided, encouraged, or solicited him to do so and that Perrin had
worked alone. Defense counsel reminded the jury that when he had asked the
investigators during cross-examination whether there were any messages that showed
any kind of communication between Calvert and anybody else in which he had
encouraged, directed, solicited, or aided them in stealing, they had admitted that there
50
were none. He reminded them that merely being present for an offense was not
enough to make one a party to a crime and contended that the Ford F-550 photos
merely showed Calvert’s presence. He also argued that there was no proof of any
profits.
Defense counsel also reminded the jury that as to the extraneous offense
evidence, the investigators had admitted that they did not know what was stolen,
stating,
The State showed you picture after picture after picture after picture of
all this property, but think about what they said for the vast majority of
every picture they put up there: We can’t say whether this was stolen or
not. We can’t say whether this was stolen or not. We can’t say whether
this was stolen or not. We can’t say whether this was stolen or not.
Masters and Cox, the investigators, both said: We can’t say.
Picture after picture after picture after picture, but they can’t say, you
know, because they never went through the shoebox. They never
bothered to go through the shoebox that my client brought them to
show you the receipts and stuff they had. But the State still wants you to
believe and they want to say that: Well, this is -- this is -- this is proof.
Here’s the proof. Look at all the property he had around him.
Calvert’s counsel encouraged the jury to go through the shoebox of receipts.
Calvert’s counsel also argued that there was no clear evidence of how NSP’s
truck and freight box made it from NSP’s facility to the Hill and that along with all of
the other questions he had raised about the case, a “not guilty” verdict was the answer
because “[w]hen we have lots of ‘we don’t knows,’ we have reasonable doubt.” And
he reminded the jury about testimony that “dopers lie” and asserted that Dearman
was the biggest doper in the case and untrustworthy, that Stephenson was a liar, and
51
that Morgan could not have been a substitute kingpin because she was disloyal and
unreliable.
In rebuttal, the prosecutor responded that Calvert did not have to steal
anything but rather just had to know that the property was stolen during the time it
was in his possession—“[H]e had sufficient time to tear it apart; so you know he had
sufficient time to give it back. When he didn’t do that, then he bec[a]me[] a party.”
She also asserted that Calvert had run with thieves and dopers because he was a thief
and a doper and that Calvert lied from the “get-go” when he denied knowing Perrin.
She also encouraged the jury to consider Calvert’s shoebox of receipts, stating,
I will agree 100 percent with Defense that you should take this box of
receipts in there, and you should look at it and believe that he saved his
receipts. Because he did. There’s receipts in here from 2014.
Now, they’re mainly from Chick-fil-A and other fast food
restaurants, some to the movie theater; but there are some receipts in
there for tools. There absolutely are. But there is nowhere near close to the
receipts of the tools that he had in his house.
. . . So absolutely, take it back and dig through every single one of
them. It won’t take you that long. I’ve done it. [Emphasis added.]
The prosecutor argued to the jury that Calvert’s handwritten bills of sale for the
trailers were false and unbelievable and that he had made up the story about Manuel
“Herrera/Salazar.” She asserted that property that is not stolen does not have missing
VINs and is not being unnecessarily repainted. She stated that Calvert was the one
who had broken down the items, “[a]nd if you think that is not aiding and abetting
and encouraging, I don’t know what is.” She claimed that Calvert had received profits
52
from selling some of the property, either directly or through Young, and that the
evidence established a pattern of Calvert’s actions over and over.
Finally, the prosecutor told the jury to consider the individual properties listed
in the indictment “because all the other stolen property didn’t matter,” she walked the
jury through connections between Calvert and each piece of property listed in the
indictment, and she reminded the jury that they needed to find only three people in
the combination.
Based on the sufficiency of the evidence to convict Calvert of engaging in
organized crime as to the items listed in the indictment—especially the fact that the
jury had the opportunity to review the “shoebox of receipts”—as well as the trial
court’s limiting instruction, and the parties’ arguments, we conclude that the trial
court’s nonconstitutional errors, if any, with regard to admitting the extraneous
offense evidence did not affect Calvert’s substantial rights, and we overrule this
portion of his fifth point.
VIII. Jury Charge
In his eighth point, Calvert argues that the jury charge “contained errors of
omission and commission” that rendered it “fundamentally defective and un able to
pass constitutional muster” and complains that “as a whole document, [it] was
confusing, misleading, erroneous, inaccurate, and repugnant.” We must review “all
alleged jury-charge error . . . regardless of preservation in the trial court.” Kirsch v.
53
State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In reviewing a jury charge, we
first determine whether error occurred; if not, our analysis ends. Id.
Error in the charge, if timely objected to in the trial court, requires reversal if
the error was “calculated to injure the rights of [the] defendant,” which means no
more than that there must be some harm to the accused from the error. Tex. Code
Crim. Proc. Ann. art. 36.19; Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App.
1994); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see
also Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). In other words, a
properly preserved error, unless harmless, requires reversal. Almanza, 686 S.W.2d at
171.
In contrast, unpreserved charge error warrants reversal only when the error
resulted in egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App.
2013); Almanza, 686 S.W.2d at 171; see Tex. Code Crim. Proc. Ann. art. 36.19. In
making an egregious-harm determination, we must consider “the actual degree of
harm . . . in light of the entire jury charge, the state of the evidence, including the
contested issues and weight of probative evidence, the argument of counsel[,] and any
other relevant information revealed by the record of the trial as a whole.” Almanza,
686 S.W.2d at 171. See generally Gelinas v. State, 398 S.W.3d 703, 708–10 (Tex. Crim.
App. 2013) (applying Almanza). Errors that result in egregious harm are those “th at
affect the very basis of the case, deprive the defendant of a valuable right, vitally affect
the defensive theory, or make a case for conviction clearly and significantly more
54
persuasive.” Taylor v. State, 332 S.W.3d 483, 490 (Tex. Crim. App. 2011) (citing
Almanza, 686 S.W.2d at 172). The purpose of this review is to illuminate the actual,
not just theoretical, harm to the accused. Almanza, 686 S.W.2d at 174.
Calvert first complains that the prosecutor improperly added to the statutory
definition of the term “collaborating in carrying on.” The charge defined
“combination” as “three or more people who collaborate in carrying on criminal
activities, although: (1) participants may not know each other’s identities; (2)
membership in the combination may change from time to time; and (3) participants
may stand in a wholesaler-retailer or other arm’s-length relationship in illicit
distribution operations.” See Tex. Penal Code Ann. § 71.01(a) (defining
“combination”). The charge defined “collaborate in carrying on” as “working
together with a specified number of others in specified criminal activities. The State is
not required to allege the names of the members of the group or prove the names.”
There is no statutory definition of “collaborate in carrying on,” cf. id., but the
Texas Court of Criminal Appeals has indicated that the State must prove more than
that an accused committed or conspired to commit only one enumerated offense with
two or more people—it must prove a continuing course of criminal activities. Nguyen v.
State, 1 S.W.3d 694, 697 (Tex. Crim. App. 1999); see also O’Brien v. State, 544 S.W.3d
376, 384 (Tex. Crim. App. 2018) (explaining that engaging in organized crime is a
“circumstances of the conduct” offense, “the circumstance being the existence or
creation of a combination that collaborates in carrying out criminal activities”).
55
Calvert complains that the second sentence—that the State is not required to
allege the names of the members of the group or prove the names—should not have
been included because the State actually alleged the names and was therefore bound
to prove them. This is not the same basis as his counsel’s objection during trial. 36 Cf.
Tex. R. App. P. 33.1(a). Further, because the State actually alleged and proved the
names of the members of the group—Calvert, Perrin, Stephenson, Sampley,
Jacobson, Morgan, and Bates—even if it was not required to do so, and because the
application portion of the charge specifically addressed all of these individuals, the
error was harmless on its face. This is because including a merely superfluous abstract
instruction never produces reversible charge error; it has no effect on the jury’s ability
to fairly and accurately implement the commands of the application paragraph or
paragraphs. See Plata v. State, 926 S.W.2d 300, 302–03 (Tex. Crim. App. 1996), overruled
on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). We overrule
this portion of Calvert’s eighth point.
Calvert also complains that the charge omitted definitional paragraphs for
“reasonable doubt” and “proof beyond a reasonable doubt.” But the trial court need
not define reasonable doubt for the jury; in fact, the better practice is not to define it
at all. See Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000), overruling in part
36
During the charge conference, Calvert’s counsel stated, “[W]e’re going to
object on Page 1 to the definition of “collaborating” and “carrying on.” He based his
objection on the lack of a statutory definition, stating, “[M]y preference would be to
not have any definition there at all.” The trial court overruled the objection.
56
Reyes v. State, 938 S.W.2d 718 (Tex. Crim. App. 1996), and Geesa v. State, 820 S.W.2d
154 (Tex. Crim. App. 1991). Failing to give the jury such a definition is therefore not
reversible error. Id. Accordingly, we overrule this portion of Calvert’s eighth point.
Calvert also argues that the extraneous offense instruction was incomplete and
insufficient because it did not address the photographs of tools “portrayed as likely
stolen, when in fact the receipts were in the prosecution[’]s possession all along” or
refer to the allegations about drug dealing and drug use. We have already set out the
charge’s extraneous offense instruction in our discussion of Calvert’s fifth point. That
broad instruction allowed the jury to consider any extraneous offenses demonstrated
by the evidence and to determine whether the State had proved those offenses
beyond a reasonable doubt, and it limited the jury’s consideration of those offenses to
determining only Calvert’s motive, intent, preparation, plan, or knowledge as to the
engaging-in-organized-crime offense. See Tex. Code Crim. Proc. Ann. art. 36.14
(requiring the trial court to deliver a written charge setting forth the law applicable to
the case and to not express any opinion as to the weight of the evidence, summarize
the testimony, or discuss the facts). In contrast, a jury instruction that conveys some
opinion on the weight of the evidence—by singling out that evidence and inviting the
jury to pay particular attention to it—could violate Article 36.14. Brown v. State, 122
S.W.3d 794, 801 (Tex. Crim. App. 2003); see also Walters, 247 S.W.3d at 214 (“The trial
court in this case . . . properly left it to the advocates to argue the significance of each
specific piece of evidence.”). Accordingly, we hold that the trial court did not err by
57
not listing specific pieces of evidence in the extraneous-offense instruction, and we
overrule this portion of Calvert’s eighth point.
Calvert also argues that the accomplice-witness instruction paragraphs were
incomplete and inaccurate because they failed to instruct on “accomplice-on-
accomplice corroboration.”
The charge’s accomplice witness instructions stated,
You are instructed that an Accomplice, as the term is hereinafter
used, means any person connected with the crime charged, as a party
thereto, and includes all persons who are connected with the crime, as
such parties, by unlawful act or omission on their part transpiring either
before or during the time of the commission of the offense. A person is
criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he
is criminally responsible, or by both. Mere presence alone, however, will
not constitute . . . a party to an offense.
You are further instructed that a conviction cannot be had upon
the testimony of an accomplice unless the jury first believes that the
accomplices’ evidence is true and shows that the defendant is guilty of
[the] offense charged in the Indictment, and then you cannot convict the
defendant upon said testimony unless you further believe that there is
other testimony in the case, outside the testimony of the said witnesses,
tending to show the commission of the alleged offense by the defendant,
Patrick Birch Calvert, if he did. The corroboration, if any, is not
sufficient if it merely shows the commission of the offense, but it must
tend to connect the defendant with its commission, and even then,
before you can convict the defendant, you must believe, from the
evidence beyond a reasonable doubt that the defendant is guilty of the
offense charged against him.
Now, if you find that there are accomplices, if any, then you
cannot convict on their testimony unless you first believe that the
accomplice’s testimony is true and that it shows the defendant is guilty
of the offense charged against him, and even then you cannot convict
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unless the accomplice’s testimony is corroborated by other evidence
tending to connect the defendant with the offense charged.
See Tex. Code Crim. Proc. Ann. art. 38.14 (setting forth corroboration requirement for
accomplice testimony).
While “it is a fundamental principle that the testimony of one accomplice
witness cannot corroborate another accomplice witness’ testimony,” Chapman v. State,
470 S.W.2d 656, 660 (Tex. Crim. App. 1971), the record does not reflect any
egregious harm to Calvert because of the failure to include this principle in the jury
charge. The record reflects that all of the accomplices listed in the indictment tried to
minimize their individual involvement and that most of their evidence tended to
corroborate evidence that the investigators had independently discovered over the
course of the case. Accordingly, we overrule this portion of Calvert’s eighth point.
Calvert further argues that the charge omitted a statutorily required instruction
under Penal Code Section 71.02 to unanimously find him guilty of one of the
enumerated offenses as a prerequisite to finding him guilty of engaging in organized
criminal activity and that an additional theory of appropriation, defining a separate
offense from that which was listed in the indictment, was included in the charge.
Penal Code Section 71.02(a) states that a person commits an offense “if, with
the intent to establish, maintain, or participate in a combination or in the profits of a
combination . . . , the person commits or conspires to commit one or more” of a
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nineteen-item list. Tex. Penal Code Ann. § 71.02(a)(1)–(19). Theft is contained in the
first item. Id. § 71.02(a)(1).
The indictment charged Calvert with unlawfully appropriating, by acquiring or
otherwise exercising control over (i.e., through the theft of) seven items through a
scheme or continuing course of conduct, to reach an aggregate property value of
$30,000 to $150,000, with the intent to establish, maintain, or participate in a
combination or in the profits of a combination that consisted of Perrin, Stephenson,
Sampley, Jacobson, Morgan, or Bates, who collaborated in carrying on sa id criminal
activity. See id. § 31.03(a) (defining theft as the unlawful appropriation of property
with intent to deprive the owner thereof). The jury charge defined unlawful
appropriation and instructed the jury that if they found from evidence beyond a
reasonable doubt that Calvert had unlawfully appropriated the seven items “by
acquiring or otherwise exercising control over” them—each item listed in the
conjunctive with a date, the item, its owner, and its value—with the intent to
establish, maintain, or participate in a combination or in the profits of a combination
consisting of Perrin, Stephenson, Sampley, Jacobson, Morgan, or Bates, who
collaborated in carrying on said criminal activity, then it would find Calvert guilty of
the offense. The immediately following paragraph stated that if the jury acquitted
Calvert of the engaging-in-organized-crime offense, it was then to consider the lesser-
included predicate offense of theft. In the last paragraph of the jury charge, t he jury
was instructed that its verdict “must be unanimous.” Cf. O’Brien, 544 S.W.3d at 379
60
(“We hold that the commission of each predicate crime constitutes a different manner
and means of committing the single offense of engaging in organized criminal
activity.”).
Because the charge does not omit any statutorily required instruction under
Section 71.02—to the contrary, by charging the predicate items in the conjunctive and
requiring unanimity, the charge added to the State’s burden—and because the
“additional theory of appropriation” appears to merely reference the lesser-included
offense,37 which was not reached by the jury, there is no error here, and we overrule
the remainder of Calvert’s eighth point.
IX. Prosecutorial Misconduct
In part of his fifth point and in his sixth point, Calvert asserts that the
prosecutor knowingly used false evidence and elicited perjury during the trial,
identifying “numerous instances of falsely portraying [his] tools as stolen when they
had the receipts.” He also complains that the prosecutor ignored her duty of due
diligence in bringing the case to trial when he was held for 29 months on two charges
37
In his reply brief, Calvert asserts that part of his complaint is that the abstract
portion of the charge contained two definitions of “appropriation.” The abstract
portion of the charge defined “appropriate” as “to a) bring about a transfer or
purported transfer of title to other nonpossessory interest in property, whether to the
actor; or another or b) to acquire or otherwise exercise control over property other
than real property.” Because the application portion of the charge set forth the same
language set out in the indictment—“acquiring or otherwise exercising control over,”
the inclusion of this superfluous definition was harmless. See Plata, 926 S.W.3d at
302–03.
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that, at a maximum, would carry only 24 months of incarceration; that the prosecutor
overwhelmingly used hearsay during opening statements and closing arguments; that
the prosecutor engaged in selective and vindictive prosecution; and that the
prosecutor threatened and coached the witnesses.
Because at no point during the trial did Calvert raise any objections based on
prosecutorial misconduct, he has failed to preserve these complaints for our review.
See generally Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (explaining
preservation-of-error requirement); Dusenbery v. State, No. 02-16-00125-CR, 2018 WL
4025078, at *11 (Tex. App.—Fort Worth Aug. 23, 2018, pet. ref’d) (mem. op., not
designated for publication) (holding that appellant forfeited his complaints about
prosecutorial misconduct when he failed to preserve them). Furthermore, the record
does not reflect pervasive prosecutorial misconduct, i.e., an aggregation of “serious
and continuing prosecutorial misconduct that undermine[d] the reliability of the
factfinding process.” See Bautista v. State, 363 S.W.3d 259, 263 (Tex. App.—San
Antonio 2012, no pet.). Accordingly, we overrule Calvert’s sixth point and the
pertinent portion of his fifth point.
X. Ineffective Assistance of Counsel
In his first and seventh points, and in parts of his fourth and fifth points,
Calvert complains that he received ineffective assistance of counsel before, during,
and after his trial.
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The Sixth Amendment guarantees a criminal defendant the effective assistance
of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const.
amend. VI. To establish ineffective assistance, an appellant must prove by a
preponderance of the evidence that his counsel’s representation was deficient and that
the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 2064 (1984); Nava, 415 S.W.3d at 307. The record must affirmatively
demonstrate that the claim has merit. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999).
In evaluating counsel’s effectiveness under the deficient-performance prong,
we review the totality of the representation and the particular circumstances of the
case to determine whether counsel provided reasonable assistance under all the
circumstances and prevailing professional norms at the time of the alleged error. See
Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307; Thompson, 9
S.W.3d at 813–14. Our review of counsel’s representation is highly deferential, and
we indulge a strong presumption that counsel’s conduct was not deficient. Nava, 415
S.W.3d at 307–08.
Further, an appellate court may not infer ineffective assistance simply from an
unclear record or a record that does not show why counsel failed to do something.
Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State, 226
S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel “should ordinarily be afforded
an opportunity to explain his actions before being denounced as ineffective.”
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Menefield, 363 S.W.3d at 593. If trial counsel did not have that opportunity, we should
not conclude that counsel performed deficiently unless the challenged conduct was
“so outrageous that no competent attorney would have engaged in it.” Nava, 415
S.W.3d at 308. Direct appeal is usually inadequate for raising an ineffective-
assistance-of-counsel claim because the record generally does not show counsel’s
reasons for any alleged deficient performance. See Menefield, 363 S.W.3d at 592–93;
Thompson, 9 S.W.3d at 813–14.
With regard to ineffective assistance of appellate counsel, generally brought in
an application for writ of habeas corpus, see, e.g., Ex parte Miller, 330 S.W.3d 610, 613
(Tex. Crim. App. 2009), the habeas applicant must show that counsel’s decision not to
raise a particular point of error was objectively unreasonable and that there is a
reasonable probability that, but for counsel’s failure to raise that particular issue, he
would have prevailed on appeal. Ex parte Flores, 387 S.W.3d 626, 639 (Tex. Crim.
App. 2012). An appellate attorney need not advance every argument, regardless of
merit, urged by the appellant, but if appellate counsel fails to raise a claim that has
indisputable merit under well-settled law and would necessarily result in reversible
error, appellate counsel is ineffective for failing to raise it. Id.; see Miller, 330 S.W.3d at
626 (concluding that because the habeas applicant received ineffective assistance from
his appellate counsel, “[t]he proper remedy . . . is to return the applicant to the point
at which he can give notice of appeal”).
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In his first point, Calvert argues that his former appellate counsel’s August 1,
2018 motion for new trial and motion in arrest of judgment allege “a set of facts that
are diametrically opposed to the truth”38 and lists as viable reasons that could have
been used in a motion for new trial the following: (1) erroneous admission of
extraneous offense evidence; (2) trial counsel’s refusal to file a motion to suppress; (3)
prosecutorial misconduct; (4) various errors in the jury charge; or (5) “other viable
reasons under TRAP 21.3(a), (b), (d), (e), or (h).”39 He also complains that because he
“lost all faith in any counsel that has been appointed by the 43rd District Court,” he
was forced to proceed pro se.
The trial court signed the judgment of conviction, discharged Calvert’s trial
counsel, and appointed appellate counsel for him on July 16, 2018. Calvert’s
appointed appellate counsel timely filed a notice of appeal on August 1, 2018, and on
August 2, 2018, his appointed appellate counsel filed a combined motion for new trial
and motion in arrest of judgment and filed requests for free clerk’s and reporter’s
38
While Calvert’s appointed appellate counsel inaccurately stated in the motion
for new trial that Calvert had waived a jury trial and had proceeded to a bench trial,
she also stated that the verdict (i.e., a jury) was contrary to the law and evidence.
39
These subsections of Rule 21.3 provide that the defendant must be granted a
new trial if: he has been denied counsel; the trial court has misdirected the jury about
the law or has committed some other material error likely to injure the defendant’s
rights; a juror has been guilty of corrupt conduct; evidence tending to establish the
defendant’s innocence has been intentionally destroyed or withheld, thus preventing
its production at trial; and the verdict is contrary to the law and the evidence. Tex. R.
App. P. 21.3(a), (b), (d), (e), (h).
65
records. The trial court denied the motion for new trial and granted the requests for
the record on August 3, 2018. On August 17, 2018, Calvert mailed a letter to this
court seeking to proceed pro se, and we abated the appeal for the trial court to
conduct a hearing on his request.
In the motion for new trial, Calvert’s appointed appellate counsel stated that
the verdict was contrary to the law and the evidence, see Tex. R. App. P. 21.3(h), and
that the trial court had discretion to grant a new trial in the interest of justice. While
Calvert’s appointed appellate counsel did not raise ineffective assistance of trial
counsel in the motion, thus depriving Calvert of the opportunity to develop a record
on that issue, or any of the other issues Calvert claims could have been raised, the
record reflects that counsel lacked the clerk’s and reporter’s records necessary to
identify any of these items as potential issues to be raised: the clerk’s record was filed
on October 29, 2018, and the reporter’s record was filed on November 20, 2018. By
that time, Calvert had already begun representing himself. Because his appointed
appellate counsel was removed before she had the opportunity to review the appellate
record and identify any arguable issues for the appeal, there is nothing for us to
review. See Flores, 387 S.W.3d at 639; Miller, 330 S.W.3d at 626. We overrule Calvert’s
first point.
In part of his fourth and seventh points, Calvert complains that he was denied
effective assistance of counsel in the pretrial process with regard to his speedy trial
complaint and his counsel’s failure to contact him and investigate his case “to any
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extent.” Calvert had five different trial counsel; he does not identify which allegedly
failed him. And although, as noted above, Calvert’s speedy trial complaint was not
preserved for appeal, the record is insufficient to explain how Calvert’s various trial
attorneys were ineffective. The record does, however, reflect that three of Calvert’s
appointed attorneys filed motions for appointment of an investigator and that the trial
court granted two of those motions, showing that his case was investigated to some
extent. We overrule the remainder of Calvert’s fourth point and this portion of his
seventh point.
In part of his fifth point and in part of his seventh point, Calvert identifies
“acts of omission and commission” that he claims rendered his trial counsel’s
assistance ineffective. But because the record does not reflect why Calvert’s various
appointed trial attorneys either acted or failed to act as they did over the course of the
case, see Menefield, 363 S.W.3d at 593, and because we may not infer ineffective
assistance from such a record, see id., we must overrule the remainder of his fifth and
seventh points as well.
XI. Conclusion
Having overruled all of Calvert’s points, we affirm the trial court’s judgment.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: September 3, 2020
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