Kenneth Ryan Grimet v. State

Affirmed and Memorandum Opinion filed August 3, 2017.
In The
Fourteenth Court of Appeals
NO. 14-16-00243-CR
KENNETH RYAN GRIMET, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1459851
MEMORANDUM OPINION
Appellant Kenneth Ryan Grimet was convicted of engaging in organized
criminal activity and sentenced to 20 years in prison. A defendant commits the
offense of engaging in organized criminal activity “if, with the intent to establish,
maintain, or participate in a combination or in the profits of a combination . . . , the
person commits or conspires to commit” one or more enumerated offenses, including
fraudulent use or possession of identifying information. Tex. Penal Code §§ 32.51
(West 2016); 71.02(a)(8) (West Supp. 2016). A combination consists of “three or
more person who collaborate in carrying on criminal activities.” Id. § 71.01(a) (West
2011). Appellant argues that his conviction should be reversed not because the
record, as a whole, is insufficient to support his conviction,1 but because (1) “[a]
conviction cannot be had upon the testimony of an accomplice unless corroborated
by other evidence tending to connect the defendant with the offense committed,”2
and (2) the non-accomplice evidence is allegedly insufficient to connect appellant
with the offense.3
Because we find that the non-accomplice evidence is sufficient to connect
appellant with the offense, we affirm.
I. Background
In October 2014, appellant developed a romantic relationship with one of his
co-defendants, Crystal Ballinger. Before she met appellant, Ballinger was involved
in a scheme to steal identifying information which she used to apply for and obtain
credit cards.
On October 16, 2014, Ballinger used a stolen credit card to rent a motel room
in Baytown. A clerk at the motel notified the police of the fraudulent transaction,
and Officer Juan Barrera with the Baytown Police Department arrived and found
1
In evaluating the legal sufficiency of evidence of guilt, we must consider all of the
evidence, including accomplice witness testimony. McDuff v. State, 939 S.W.2d 607, 614 (Tex.
Crim. App. 1997).
2
Tex. Code Crim. Pro. art. 38.14 (West 2005).
3
If the State alleges that the defendant conspired to commit the offense, the State must
“show that the defendant agreed with one or more persons to commit the offense and that the
defendant committed an overt act with at least one other person pursuant to that agreement.” Crum
v. State, 946 S.W.2d 349, 359 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d) (citing Tex.
Penal Code § 71.01(b)). Appellant contends that the only evidence of the elements of this offense
was provided by the three accomplices, and that absent that accomplice testimony, the evidence is
insufficient to convict Appellant. Appellant contends that the non-accomplice evidence does not
connect him to the offense.
2
Ballinger, appellant, and Carrie Moore inside of the motel room. Barrera arrested
appellant for open warrants in San Augustine County and Ballinger for possessing a
fake driver’s license. Barrera searched Ballinger’s belongings and discovered
several new tools which had been purchased online and a stack of other individuals’
identifying information.
Barrera delivered the stack of identifying information to Baytown Police
Department Detective Kevin Dunlap. Dunlap initiated an investigation regarding the
fraudulent use of identifying information and identified Ballinger and appellant as
suspects.
Appellant was transferred to the San Augustine jail. On October 31, 2014,
Ballinger bonded appellant out of the San Augustine jail. Ballinger admitted that
appellant knew that she used a stolen credit card to bond him out. Appellant and
Ballinger returned to the Houston area after his release.
On November 6, 2014, appellant and Ballinger came to Cody Ligori’s room
at the Palace Inn. Although Ligori and his wife Hannah Yaws had never met
appellant, they had known Ballinger for about five years. The following day, Ligori
checked out of the Palace Inn and into the Scottish Inn, where Ballinger and
appellant stayed with Ligori and his family.
On the morning of November 9, 2014, Ligori drove appellant and Ballinger
to the Hampton Inn motel on Airport Boulevard. Appellant and Ballinger left Ligori
in his car for about thirty minutes. When appellant and Ballinger returned, they told
Ligori that they had burglarized a room at the motel to steal documents and that
appellant had used a crowbar to open the door to that room. When appellant returned
to Ligori’s car, he was holding a full duffle bag.
3
When they returned to his room at the Scottish Inn, Ligori observed that the
bag contained papers and the crowbar. Ballinger and appellant removed the papers
from the bag and began calling credit card companies to verify names and addresses.
Using the identifying information, appellant and Ballinger made online purchases
with Ballinger’s phone and laptop. After they finished going through the documents,
they put them in a milk crate.
Two days later, Ligori drove appellant and Ballinger back to the Hampton Inn
motel on Airport Boulevard, knowing that Ballinger and appellant planned on
burglarizing another motel room and stealing more identifying information.
Appellant and Ballinger brought the bag and the crowbar with them. Ballinger and
appellant entered the motel and returned with papers containing social security
numbers.
As Ligori was driving Ballinger and appellant back to Ligori’s motel room,
Officer Gothard with the Pearland Police Department stopped Ligori’s vehicle for
unconfirmed insurance. During the traffic stop, appellant gave Gothard a false name
and date of birth and was taken into custody. During the search of Ligori’s vehicle,
Gothard observed the crowbar on the floorboard of the front passenger seat, where
appellant had been sitting, and recovered the bag containing the stolen documents
with the identifying information.
While Ligori, Ballinger, and appellant were in custody, Harris County
Sheriff’s Office (HCSO) Deputy Ben Katrib interviewed Ligori and learned about
the crowbar and Ligori’s motel room. Officer Juan Meraz of the Pearland Police
Department searched Ligori’s vehicle and recovered the crowbar.
With Yaw’s consent, HCSO Deputy Andrew Sustaita searched Ligori’s motel
room and recovered the documents in the milk crate and appellant’s and Ballinger’s
belongings in an adjacent hamper. HCSO Investigator Joshua Nowitz reviewed the
4
documents recovered by Sustaita and discovered that appellant’s personal papers
were intermingled with the documents containing the identifying information of
more than 200 individuals.
II. Sufficiency of the Corroborating Evidence
In a single issue, appellant claims the non-accomplice evidence is insufficient
to connect him with the offense, and that therefore his conviction may not be had
upon the testimony of the accomplices. Appellant contends that absent the
accomplice testimony, the evidence is insufficient to support his conviction.
A. Applicable Law
“A conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the offense
committed . . . .” Tex. Code Crim. Pro. art. 38.14. “[T]he corroboration is not
sufficient if it merely shows the commission of the offense.” Id.
In reviewing the sufficiency of corroboration evidence, “we [must] eliminate
the accomplice testimony from consideration and examine the remaining portions of
the record for any evidence that tends to connect the accused with the commission
of the crime.” Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). “[T]he
corroborating evidence need not prove the defendant’s guilt beyond a reasonable
doubt by itself.” Id. “Rather, the evidence must simply link the accused in some way
to the commission of the crime and show that ‘rational jurors could conclude that
this evidence sufficiently tended to connect [the accused] to the offense.’” Id.
(quoting Hernandez v. State, 939 S.W.2d 173, 179 (Tex. Crim. App. 1997)). A
defendant’s mere presence at the crime scene is insufficient to corroborate
accomplice testimony. Malone, 253 S.W.3d at 257. However, “‘[p]roof that the
accused was at or near the scene of the crime at or about the time of its commission,
5
when coupled with other suspicious circumstances, may tend to connect the accused
to the crime so as to furnish sufficient corroboration to support a conviction.’” Id.
(quoting Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984)). And
“[e]vidence that the defendant was in the company of the accomplice at or near the
time or place of the offense is proper corroborating evidence.” McDuff v. State, 939
S.W.2d 607, 613 (Tex .Crim. App. 1997); Lacaze v. State, 346 S.W.3d 113, 117–18
(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). Additionally, evidence of a
defendant’s guilty demeanor, combined with other corroborating circumstances,
may tend to connect the defendant with the offense. Hernandez, 939 S.W.2d at 178.
“The direct or circumstantial non-accomplice evidence is sufficient corroboration if
it shows that rational jurors could have found that it sufficiently tended to connect
the accused to the offense.” Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App.
2011).
“An accomplice is someone who participates with the defendant before,
during, or after the commission of a crime, and who acts with a culpable mental
state.” Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). However, the
corroboration requirement applies only when the accomplice witness is called by the
State. See Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998).
The State admits that the trial court properly instructed the jury that Ligori
and Yaws were accomplices and that a conviction could not be had upon their
testimony unless it was corroborated by other evidence tending to connect appellant
with the offense. However, the corroboration requirement does not apply to
Ballinger’s testimony because she was called by appellant, not the State, to testify.
Thus, for the purpose of determining whether corroborating evidence tends to
connect appellant to the offense, Ballinger’s testimony is treated as “non-accomplice
testimony” or “non-accomplice evidence.” Accordingly, we eliminate the testimony
6
of Ligori and Yaws, but not Ballinger, from consideration, and examine the
remaining portions of the record for any evidence that tends to connect appellant
with the commission of the crime. See Malone, 253 S.W.3d at 257.
B. Non-Accomplice Evidence Tends to Connect Appellant with the Offense
Appellant argues that there is no non-accomplice testimony of certain
elements of the offense, namely, that he agreed to participate in the conspiracy; that
he committed an overt act in furtherance of the conspiracy; or that he was in
possession of items with identifying information. However, whether the non-
accomplice evidence is sufficient to prove each element of the offense is not the test.
“There need be only some non-accomplice evidence tending to connect the
defendant to the crime, not to every element of the crime.” State v. Ambrose, 487
S.W.3d 587, 598 (Tex. Crim. App. 2016) (quoting Joubert v. State, 235 S.W.3d 729,
731 (Tex. Crim. App. 2007) (per curiam) (holding that Article 38.14 does not require
corroboration as to defendant’s role in an offense as a principal or as a party)). As
the Court of Criminal Appeals observed in Vasquez v. State, Article 38.14, by its
very terms, requires only that there “be some non-accomplice evidence tending to
connect the defendant to the crime, not to every element of the crime.” 56 S.W.3d
46, 48 (Tex Crim. App. 2001) (holding that Article 38.14 does not require
corroboration of accomplice-witness testimony regarding a deadly-weapon finding).
As discussed below, the non-accomplice evidence regarding the traffic stop,
the items recovered from Ligori’s motel room, and appellant’s prior knowledge of
Ballinger’s unlawful conduct, when combined, tends to connect appellant with the
offense.
1. The Traffic Stop
Officer Gothard’s testimony and a video recording of the traffic stop proved
several facts that tend to connect appellant to the offense. Gothard testified that when
7
he stopped Ligori’s vehicle, Ligori, Ballinger, and appellant were in the vehicle
together. Gothard identified Ligori as the driver, appellant as the front passenger,
and Ballinger as the back-seat passenger. Appellant exhibited a guilty demeanor.
Gothard testified that appellant identified himself as “Robert Deese” and provided
an incorrect date of birth for that name. A video recording of the traffic stop confirms
that appellant provided the false name of “Robert Deese” and date of birth of June
28, 1985.
Gothard testified regarding other suspicious circumstances of the traffic stop.
During his inventory of the vehicle and its contents, he observed a duffle bag on the
rear driver’s side seat which contained identifying information. Gothard looked
through the documents in the bag “to ascertain if it was something that was taken in
a vehicle burglary or obtained illegally.” Several documents inside of the bag
included the name and address of the Hampton Inn motel on Airport Boulevard,
which Investigator Nowitz identified as the motel that had been burglarized.
Although appellant stated that he had no idea where the bag came from, he identified
it as Ballinger’s bag.
Another suspicious circumstance lay at appellant’s feet. Gothard testified that
he observed a crowbar on the floorboard in front of the front passenger seat, where
appellant had been sitting. Ballinger testified that she had used the crowbar to break
into cabinets at the motel containing identifying information. Officer Juan Meraz
testified that he later recovered the crowbar from the floorboard of the vehicle.
Appellant’s presence with Ligori, Ballinger, and a bag of identifying
information burglarized from a motel, combined with appellant’s false identification
of himself as “Robert Deese,” and his proximity to the crowbar used in the break-in,
all tend to connect appellant with the offense.
8
2. The Motel Room
Deputy Sustaita testified that when he searched the motel room, “[i]t appeared
that four people were staying in the room.” He found a hamper and a red milk crate,
which were next to each other on top of a couch. Inside the hamper, Sustaita found
documents and items associated with Ballinger and appellant, including property
bags labeled with their names, an unstamped letter written by appellant and
addressed to Ballinger, prayer documents with their first names, a booking document
with appellant’s name and photograph, and Harris/Chambers County magistrate’s
warning forms with appellant’s name.
Sustaita testified that the red milk crate was full of documents that contained
“a bunch of random people’s names and information.” He removed the documents
from the milk crate, placed them in two separate property bags, and sealed the bags
for later review by the HCSO Financial Crimes Unit.
Investigator Nowitz testified that he reviewed the documents seized by
Sustaita and found transaction receipts and employment applications with multiple
individuals’ identifying information, including names, dates of birth, Social Security
numbers, and driver’s license numbers. He also discovered several documents
associated with appellant that were mixed in with the documents containing the
identifying information. These documents included San Augustine County
magistrate’s warning forms, indictments, arrest warrants, and bond documents, all
of which were in appellant’s name.
The intermingling of appellant’s documents with the identifying information
he is alleged to have stolen also tends to connect appellant with the offense.
9
3. Appellant’s Prior Knowledge of Ballinger’s Criminal Activity
Officer Barrera testified that on October 16, 2014, he was dispatched to the
Comfort Suites motel in Baytown regarding a possible fraud call. When he arrived,
he made contact with Ballinger, Carrie Moore, and appellant. At that time, Barrera
identified appellant by his Texas Identification Card. However, he testified at trial
that he did not see the man whom he identified as appellant at the motel in the
courtroom.
Barrera searched Ballinger’s belongings in a car parked outside of the motel
room and found a large stack of other individuals’ identifying information. Barrera
transported Ballinger, Moore, and appellant to the Baytown police station and gave
the stack of identifying information to Detective Dunlap.
Dunlap testified that he conducted an investigation regarding the fraudulent
use of the identifying information recovered by Officer Barrera and identified
appellant and Ballinger as suspects. Dunlap questioned appellant as part of his
investigation and asked him about the stack of identifying information. Dunlap was
not permitted to testify regarding the contents of his interview with appellant.
Ballinger testified that she bonded appellant out of the San Augustine jail on
October 31, 2016, and that appellant knew she used a stolen credit card to bond him
out.
The jury could reasonably infer from this non-accomplice testimony of
Barrera, Dunlap, and Ballinger that appellant knew of Ballinger’s illegal activities
by the end of October 2014, which also tends to connect appellant with the offense.
III. Conclusion
In sum, the jury received non-accomplice evidence that (1) appellant was
present in a vehicle with Ligori, Ballinger, and a bag of stolen identifying
10
information; (2) the crowbar used in the break-ins was found at appellant’s feet in
the car; (3) appellant provided a false name and date of birth to Officer Gothard;
(4) appellant’s personal documents were mixed in with the stolen identifying
information; and (5) appellant was questioned by Investigator Dunlap regarding
stolen identifying information that Ballinger had in her possession less than one
month before appellant’s second arrest. Therefore, after eliminating the accomplice
testimony from our consideration and examining the non-accomplice evidence in the
light most favorable to the verdict, we conclude rational jurors could find that the
non-accomplice evidence tends to connect appellant to the offense.
Accordingly, we overrule appellant’s sole issue, and affirm the trial court’s
judgment.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Brown, and Wise.
Do Not Publish—Tex. R. App. P. 47.2(b).
11