Lawrence, Kenneth Paul

5S0-/S S3H5

NO. 05-13-01138;

NO. 05-13-01139

IN THE TEXAS COURT OF ORIGINAL

CRIMINAL APPEALS

KENNETH PAUL LAWRENCE

PETITIONER

v.

COURT ofCE,VED'W

THE STATE OF TEXAS C0URr°F CRIMINAL APPEALS

RESPONDENT MAY 05 2015

^ettesta, Glmk

In the Court ofAppealsfor the Fifth District of

Texas at Dallas

NO. 05-13-01138; FILED IN

NO. 05-13-01139 COURT OF CRIMINAL APPEALS

MAY 06 2G15

PETITION FOR Abel Acosta, Clerk

REVIEW

ProSe

Kenneth Paul Lawrence

404 Lee St.

Wolfe City, TX 75496

Phone: 972-768-3361

kennylawrence@Yahoo.com

IDENTITY OF THE PARTIES AND COUNSEL

PETITIONER /APPELLANT

Kenneth Paul Lawrence

404 Lee St.

Wolfe City, TX 75496

Phone: 972-768-3361

kennvlawrence@Yahoo.com

CRIMINALDISTRICT ATTORNEY

Emily Johnson-Liu

Assistant Criminal District Attorney

2100 Bloomdale Rd., Suite 200

McKinney, TX 75071

STATE'S ATTORNEY AT TRIAL

Dale R. Barron

Texas State Securities Board

1210 River Bend Drive, Suite 208

Dallas, TX 75247

STATE'S ATTORNEY ON APPEAL

Greg Willis (or designated representative)

Collin County District Attorney's Office

2100 Bloomdale Road

McKinney, Texas 75071

PRESIDING JUDGE DISTRICT COURT

Honorable Benjamin N. Smith, DistrictJudge

380th Judicial District Court

2100 Bloomdale Road

McKinney, Texas 75071

TABLE OF CONTENTS

PAGE NO.

IDENTITY OF PARTIES AND COUNSEL 2

INDEX OF AUTHORITES 5

STATEMENT OF THE CASE 8

ISSUES PRESENTED:

Issue 1: The Court's negligent ruling

Issue2: The exclusion of testimony

Point ofError 1

The case is insufficient under Jackson v. Virginia where the evidence

shows Appellantpossibly had no involvement ofthe offense; that

Appellant issued strongly wordedadmonishmentsto be disseminatedto

investors; that accomplice witnesses distorted, perverted, and mutilated

sellingpointsprovided by Appellant to defraud down-stream investors;

that victims had no knowledge ofAppellant whatsoever atthe time they

invested; that Appellant did notknow and had no way to know down

stream investors hadbeen defrauded; andthat accomplice witness

boilerplate confessionsfailed to implicate Appellant and the accomplice

witnesses generally denied the existence ofillegal activity altogether on

cross-examination essentially retracting their boilerplate confession. No

rationaljuror couldfind Appellant Guilty beyond a reasonable doubt

8

Point ofError 2

The caseis insufficient due to the accomplice witness testimony rule

because none ofthe seven non-accomplice witnesses could remotely

inculpate the Appellant much less offerproof, which taken rationally,

could have tended to connect him to a criminal offense. Additionally,

Tex.Pen.C. 31.03(c)(2) which allowed the State to survive directed verdict

on the theft case does not alleviate the State's burden to prove knowledge

and intent to enter into a criminal combination asrequiredfor engaging

in organized criminal

activity. g

Point ofError 3

The State called a supervisingprosecutorfrom the same office as trial

counsel to solicit expert testimony against Defendant thus utilizing his

office to gain testimonial credit before thejury; confusing thejury as to

the role ofthe office in the prosecution; blurring the line between advocate

and witness; and undermining the public confidence in thejustice system.

Thefailure ofthe prosecuting entity and/or trial court to strike the witness

or recuse theprosecutorsparticipating in the trial was structural error

requiring

reversal. 9

Point ofError 4

Defendant not beingpersonallypresent ata video deposition violated his

SixthAmendment right to confront said

witness. 9

STATEMENT OF FACTS 9

SUMMARY OF ARGUMENT 20

ARGUMENT 23

Point of Error 1, Restated 23

Point of Error 2, Restated 27

Point of Error 3, Restated 34

Point of Error 4, Restated 42

PRAYER 48

CERTIFICATE OF SERVICE 49

INDEX OF AUTHORITIES

CASES

iDoe v. Roe, "•'•"• '•:^.., ' '- •''•- •"• ' '•"* • •.•••••• • -~ ~-—i

1 •; .„-;., V«v-',, . .v,~v • .•" •_':„•' "_•-•.. . :•••:• • ',,.;-• • -:- ..]

333 S.iW.4jd 11 i (Tex. App.^-Dallas..26l 0; peti deriied). ^.L^4 — L

'^

J

Dolins.Qny. Thompson,•;_..,. ':•:., •-.•.".•.'.._ ',"'•:••'- ;••••-'-- •"• '.',"..' "777 -'."l

\LlL^444.S;W.4d.222lfTexi App.—TexarkaniL-iQl 2. pe^ deni^}V^ K; ^ —J

'Litigant v. "Defendant, '•'•> •'•'.""'•' T'-.. :-y •••••:.- .,- ;=.~:^v ;"Y"'

t:'-:"- ,:999-S:Wid'Hi;il^(tcx:.A^/^Aig^n20iiiTi^ filed) ..3"

'Plaintiff."v. Amicus,/;•• r '• ....'. *•"" .'

,.;• •; ;.lll;S.W"4d333^Tex. APP.^ustin-.2blQvpet"deniedf 'L^:5

finiithy, Jones, •:'•. /:ii- •-;•. ;, .':-•. .._.-•"• -'..•..'••:;_". '". • '.'.•'. V..!-'.•-.-: .'-.T

I = -" •888S.W-3d222(Tex2012V •-.':—'', '•'.•''-"-•':',:".'jtf-.';

Statutes and other authorities

fTisi.GiY.-Prac. & Rem. Code Ann. .§. 38.001 ,...:...;.; ,.~:-..A;; ;.'. |9

E^:.Gov^Ck)deAmi^2l001fa)(6V;...^ ••*/••' .--Is 7

fe^Erop: Code Anri. fMlA Q^X^v--^----------":"-•-------'~3 11

I P •• -* »-PP--«- •. yJ. ••"••h...,^ .'.* T>[«....<.<..'........'v....j..j.,...v.'.i l l

Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 20ll) 23

Jacksonv. Virginia,443 U.S. 307 (1979) 8,20,23

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) 24

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) 24

Hooperv. State 2I4S.W. 3d 9, 16-17 (Tex. Crim. App. 2007) 24

Badillo v. State, 963 S.W.2d 854, 857 (Tex. App.—San Antonio 1998) 28

Morin v. State, 960 S.W.2d 132, 136 (Tex. App.—Corpus Christi 1997) 28

Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1994) 28

House v. State, 947 S.W.2d251, 254 (Tex. Crim. App. 1997 En Banc)...35, 36, 37

InRe: Guidry,3l6 S.W.2d 729 (Tex. App. —Houston [14th Dist.]) 35

Anderson Producing, Inc. v. Koch Oil Co., 929 S.W.2d 416 (Tex. 1996)...35, 38

Brownv. State, 921 S.W.2nd227 (Tex. Crim. App. 1996) 36,37, 40

Powers v. State, 165 S.W.3d 357 (Tex. Crim. App. 2005) 36,37

Diggesv. State, 2012 WL2444543 (Tex. App. —Dallas 2012) 36

United States v. Trapnell, 638 F.2d 1016, 1025 (7th Cir. 1980) 36

United States v. Birdman, 602 F.2d 547, 552-53 (3rd Cir. 1979) 36

United States v. Torres, 503 F.2d 1120, 1126 (2nd Cir. 1974) 36

Robinsonv. UnitedStates, 32F.2d505, 510 (8thCir. 1928) 36

United States v. Johnston, 690 F.2d 63 8, 644 (7th Cir. 1982) 37

Jordan v. State, 256 S.W.3d286, 290 (Tex. Crim. App. 2008) 38

Arizona v. Fulminante, 499 U.S. 279, 310(1991) 38

Davilav. UnitedStates, 133 S. Ct. 2139,2149 (2013) 38,41

Ayersv. Canales,790SW.2d554(Tex. 1990) 38,39

InreSanders, 153S.W.3d54, 57 (Tex. 2004) 39,42

Kentucky v.Stincer, 482 U.S. 730, 745(1987) 42

Illinois v. Allen, 397 U.S. 337, 338 (1970) 43

Grayv. Moore, 520 F.3d 616, 622 (6th Cir. 2008) 43

6

Romero v. State, 173 S.W.3d 502, 505 (Tex. Crim. App. 2005) 45

RULES

Tex. R. App. P. § 44.2(a) 9,23,48

Tex. Pen. C. 31.03(c)(2) 3,20,21,28

Tex. Pen. C. 71.02(a)(1) 24,26

Tex. Crim. Proc. Code Ann. §38.14 27

Tex. Disciplinary Rules Prof'l Conduct 3.08 34,35,39,41

Tex. Disciplinary Rules Prof'l Conduct R. 3.08 cmt. 4 35

Tex. Disciplinary Rules Prof'l Conduct R. 3.08(c) 34, 38

Tex. Disciplinary Rules Prof'l Conduct R. 3.08(a) 39,42

STA TEMENT OF THE CASE

Appellant was indicted for four separate charges; Theft of over

$200,000 for which he was ultimately acquitted; Securities fraud for which

he was ultimately acquitted; Engaging in organized criminal activity with

the predicate offense being theft over $200,000 for which he was ultimately

convicted and given 10 years confinement suspended for 10 years of

community supervision (380-80745-2011 CR P. 17) (380-80745-2011 CRP.

202 - 210); and money laundering over $200,000 ofthe proceeds oftheft of

over $200,000 for which he was convicted and sentenced to 5 years inthe

Texas Department of Corrections (380-80746-2011 CR P. 17) (380-80746-

2011 CR P. 196-198).

Issues on Appeal

I.

The Conviction for Engaging in Organized Criminal Activity with

the predicate offense of Theft over $200,000 is predicated on insufficient

evidence in light of Jackson v. Virginia as no rational juror could have

found Appellant Guilty beyond a reasonable doubt based on the

evidence presented at trial.

II.

The accomplice witness rule prohibits conviction because there

was only accomplice-witness evidence that tended to connect Appellant

to any crime.

III.

The supervising prosecutor's testimony as an expertwitness

constituted structural error requiring reversal.

IV.

Appellant was deprived of his Sixth Amendment Rights because

he was not present at the depositions of multiple witnesses taken in the

case. These depositions were later published to the jury as the witness'

sole testimony. This constitutional error contributed to the conviction,

and therefore this Court must reverse pursuant to Tex. R. App. P.

44.2(a)

STA TEMENT OF FA CTS

Kenneth Lawrence ("Appellant"), by and through his company, Green

Diesel (III P. 78 Ln. 13 - P. 79 Ln. 15) formed a relationship to build and

operate a bio-diesel plant in Hunt County, Texas (III P. 56 Ln. 2-15) with

Greenway Energy Partners, LLC, a company consisting ofCasey Vanloon,

Ricky Ray Knowles, John David Riddle, and Ronnie Nichols, (III P. 26, Ln.

5-15) (III P. 30 Ln. 5 - 23); (III P. 55 Ln. 3-18). The project was to be

done through SUNX (pronounced Sun-ex), an international corporation

selling franchises in Bio-Diesel plants (III P. 27 Ln. 17 - 21) (III P. 52 Ln. 5

- 8) (IV P. 126 Ln. 18 - P. 127, Ln. 3). Appellant and Greenway were

trying to raise money from investors (III P. 38, Ln. 3-13). Appellant and

his uncle, Robert Lawrence, actually visited SUNX in British Columbia,

Canada, to verify the legitimacy and viability of their plan to built a

biodiesel plant(V P. 11 Ln. 6 - P. 13 Ln. 20).

SUNX Investors, such as Appellant, thought they were buying a

franchise they could operate themselves, but mid-way through the project

SUNX gave investors the option of being converted to shareholders in a

plant (or plants) operated by SUNX, or to have their investmentreturned

altogether. (IV P. 129 Ln. 8-P. 131 Ln. 18). SUNX eventually went

bankrupt and/or quit honoring their commitments. Appellant and Dan

Anglin, an investor and defense witness who traveled from Ohio to testify,

were sent scrambling by SUNX unforeseen failure (IV P. 9 Ln. 14 - 17) (IV

P. 139Ln.4-P. 142 Ln. 6).

The State called Ricky Ray Knowles, Casey Vanloon, and John

Riddles to testify against Appellant. It is uncontested these are accomplice

witnesses andthe Court charged the jury they were as such (380-80745-2011

CRP. 185 - 194). Each accomplice-witness had previously signed a

boilerplate voluntary confession and plea agreement ("VCPA") and those

were admitted into evidence (State'sExhibits 1, 11 and 29). The VCPAs all

failed to implicate Appellant and do not mention him in the confession

portions. Each accomplice-witness testified the project was Appellant's

10

idea and that Appellant provided them with at least some of the information

to give the potential investors (III P. 27 Ln. 6 - P. 29 Ln. 9) (III P. 37 Ln. 4 -

6) (III P. 79 Ln. 23 - P. 80 Ln. 7) (III P. 159 Ln. 5-21). The most

significant item provided by Appellant was a voluminous prospectus (State's

Exhibit 12) (III, P. 37 Ln. 4-10).

Within the prospectus was the following language at the outset of

approximately three pages of bold-highlighted admonitions, cautions and

warnings:

"PARTICIPATION AS A JOINT VENTURER

HEREIN INVOLVES A HIGH DEGREE OF RISK

AND ONLY THOSE PERSONS WHO ARE ABLE

TO BEAR THE FINANCIAL RISKS REFERRED

TO IN THIS MEMORANDUM SHOULD

CONSIDER PARTICIPATING IN THIS

VENTURE."

(State's Exhibit 12).

The State proved some of Greenway's investors had clearly been

defrauded in Greenway's efforts to raise operating capital. The main culprit

in the fraud was Ronnie Nichols (III P. 173 Ln. 16 - 20). Mr. Nichols did

not testify in this trial and was ultimately sentenced to 8 years TDC. (Ill P.

162 Ln. 23 - P. 163 Ln. 11). The State will not be able demonstrate any

evidence inthe record that Appellant directly defrauded any investor.

During punishment it was revealed the State attempted to contact investors

li

directly solicited by Appellant. Instead of the State's prosecution the

investors informed Appellant they had been contacted (VII P. 175 Ln. 3 -

25). No investor who testified in this case and was defrauded had directly

met with or spoken with Appellant at the time they were originally

defrauded.

On cross-examination, each accomplice witness denied wrong doing

to varying degrees, and each denied there was any scheme to defraud

investors. They essentially retracted their original boilerplate confessions

(III P. 53 Ln. 15 - P. 54 Ln. 6 [Knowles Repudiation]) (III P. 116 Ln. 14 -

P. 117 Ln. 17 [Riddle Repudiation])(III P. 163 Ln. 18 - P. 164 Ln. 20

[Vanloon]). There was nothingon the checks which would have aroused

Appellant's suspicion the money had been raised fraudulently when the

money was ultimately sent to him and not even John Riddle knew the money

to have been raised fraudulently (III P. 141 Ln. 11 - 17). Appellant hadno

control over Greenway accounts (III P. 55 Ln. 16-18).

Though accomplice-witnesses testified the information they usedto

defraud investors was from Appellant, theirtactics in no way resembled

anything Appellant could have contemplated. An investor defrauded by Mr.

Nichols claimed theydidn't even know they were buying in to a biodiesel

plant (III P. 196 Ln. 21-P. 197 Ln. 6) (III P. 185 Ln. 1-P. 187 Ln. 16).

12

Accomplice-witness Casey Vanloon told another investor that he was an

attorney (IV P. 198 Ln. 9-17). The state will not be able to demonstrate in

the record Appellant was made aware ofor sanctioned any ofthese tactics or

shenanigans used by accomplice witnesses or by Mr. Nichols.

Non-Accomplice Witnesses

Eliza Lujan:

The State called an expert accounting witness, Eliza Lujan, to testify

as to how money controlled by Appellant was being spent (IV P. 5 Ln. 9).

Ms. Lujan testified Appellant had transferred $40,000 to SUNX (IV P. 9 Ln.

14-17) (See generally III P. 239 Ln. 7 - IV P. 33 Ln. 2). Ms. Lujan made

speculative comments to the jury. For instance, Ms. Lujan initially guessed

money was paid to Hunter Lawrence which she believed to be the child of

Appellant. On cross-examination the jury learned Hunter Lawrence may

actually have beena cousin. (IV P. 8 Ln. 25 - P. 9 Ln. 2) (IV P. 23 Ln. 23 -

P. 24 Ln. 1).

James Willis (Video):

James Willis was the only investor who ever spoke with Appellant but

did so well after Mr. Nichols defrauded him to see about recouping his

13

money (III P. 215 Ln. 3 - P. 216 Ln. 6) (State's Exhibit 32-2 published to

juryat III P. 238 Ln. 15 [not transcribed by the court reporter]). Appellant

clearly expressed continuing support ofthe project but he also made a very

clear assertion that, "there'sno guarantee of anything" (approx. 18:21 into

the recording by Appellant's attorney's estimation). At one point Mr.

Willis said to Appellant, [Mr. Nichols] ".. .did not explain to me like you are

telling me this... had he done that... had he told me what he was doing I

never would have done this" (approx. 21:45 into the recording by

Appellant's attorney estimation). Ultimately Appellant told Mr. Willis to try

to get his money back from Greenway. Again, Appellant would not have

known if he had Mr. Willis' money because he was not aware ofGreenway

investors when money was forwarded to him (III P. 141 Ln. 11 - 17).

Appellant was not present for his video-deposition, which was ultimately

played for thejury (IIIP. 182 Ln. 5 - P. 183 Ln. 20).

Thomas Petersik:

In it's opening statement, the statetold thejury that the co-defendants

misrepresented the existence ofan insurance policy to investors (through the

"Fireman's Fund") which would indemnify them from a potential loss by

telling the jury "there was no insurance policy" (III P. 9 Ln. 2 - Ln. 22). Mr.

14

Petersik is a representative from the "Fireman's Fund" who traveled from

Chicago, Illinois. (IV P. 33 Ln. 22 - P. 34 Ln. 1) (IV P. 35 Ln. 12- P. 36

Ln. 1). The State called Mr. Petersik to testify there was no insurance policy

in place by Green Diesel, Greenway, or SUNX. On cross-examination the

witness testified: (1) he never contacted SUNX (presumably to see if a

policy hadbeen planned but was notcurrent because the planned plant(s)

had not been built yet) (IV P. 40 Ln. 2 - 3); (2) a valid business interruptions

policy would in fact indemnify qualified losses from an existing plant given

the proper circumstances (IV P. 43 Ln. 11 - 24); and that (3) the SUNX

prospectus containing a letter with the "Fireman Fund's" logo did not appear

to make fraudulent representations (IV. P. 45 Ln. 1-P. 46 Ln. 4 discussing

Defense Exhibit 1).

Todd Crosby:

This witness is Appellant's brother-in-law who had been sued along

withthe Appellant by a former investor of an oil andgas project (IV. P. 65

Ln. 15 - P. 68 Ln. 16). Mr. Crosby admitted they had employed an attorney

by the name of Phil Aufill to draft the joint venture agreement which

ultimately got them sued by their former investor- and that Mr. Aufill was in

federal custody (IV P. 71 Ln. 4 - P. 72 Ln. 2) (IV P. 77 Ln. 19- P. 78 Ln.

15

11). Mr. Crosby testified he had been sued for theft by L&C Consultants

(Appellant's previous company) but claimed he was innocent (P. 70 Ln. 9

P. 71 Ln. 1).

Richard Waskom:

The State called Richard Waskom, a person successfully sued by

Appellant by and through L&C Consultants for $150,000 (IV P. 106 Ln. 12

- P. 107 Ln. 5). Mr. Waskom generally testified he was privy to the lawsuit

against Appellant as well as Mr. Crosby and the underlying facts of the

lawsuit that involved an oil and gas project (IV P. 81, Ln. 6- P. 100 Ln. 24).

Garland Downing:

Mr. Downing was a 79 year-old investor solicited by Casey Vanloon.

Mr. Downing never heardthe name of Appellant in connection with the

investment (IV. P. 51 Ln. 9 - 11).

Herman Peace (Video)

This witness was an investor solicited by Ronnie Nichols. He was not

positive he had heard Appellant's name at or near the time he invested (IV P.

167 Ln. 1-P. 169 Ln. 12). The record is silent whether Appellant was

present for this deposition.

16

Billie Nevill (Video)

Billie Nevilltestified she was an investor who was solicited by Mr.

Casey Vanloon. Ms. Nevill was not asked any questions on direct

examination about Appellant (IV P. 184 Ln. 20 - P. 203 Ln. 14). Ms. Nevill

testified initially she was not sure what she was investing in but later

recalled what it was in more general terms (IV P. 193 Ln. 8-17). The

record is silent as to whether Defendant was in attendance.

Alma Sparks (Video):

Ms. Sparks was an investor solicited by Casey Vanloon. Ms. Sparks

testified she did not know who Appellant was at the time of her investment

(IV P. 226 Ln. 18 - P. 228, Ln. 11). Appellantwas not present for her

deposition. (IV P. 208 Ln. 8 - P. 209 Ln. 8).

Joseph P. Oman - The Prosecutor-Witness

The State further relied on the expert testimony of Joseph P. Oman, an

attorney who is the assistant director of the enforcement division and the

supervisor for the Dallas Branch office of the Texas State Securities Board.

This is the same agency that employs trial counsel for the State though trial

17

counselwas working in the capacityas a special prosecutor on the case as

appointed by the sittingDistrict attorney of Collin County (II P. 2 Ln. 3 -

11)(IV P. 237 Ln. 14 - P. 238 Ln. 22) (II P. 24 Ln. 16 - P. 25 Ln. 2). Mr.

Oman has testified previously in similar capacities (IV P. 239 Ln. 19 - P.

240 Ln. 6).

Mr. Oman gave basic legal opinions about concepts including

investment contracts, evidence of indebtedness, and blue sky laws. (IV P.

240 Ln. 10 - P. 243 Ln. 1). He described offices full of unregistered agents

as "boiler rooms" (IV P. 245 Ln. 18 - 25). He resolved several

hypotheticals including; (1) that a purported joint venture similar to

Appellant's joint venture would not allow individuals in the venture to

exercise any control (IV P. 253 Ln. 3 - P. 254 Ln. 7); and (2) that a promoter

would have a duty make sure sales-persons disclose material facts about

himselfto the ultimate investors (IV P. 254 Ln. 8 - P. 255 Ln. 1). Mr.

Omantestifiedthe terms in the prospectus do not really applyto a biodiesel

offering but is more similar to oil and gas. (IV P. 255 Ln. 2 - 23). Mr.

Oman testified in his experience oil and gas companies attempt to sell

projects as true joint ventures in an effort to evade Texas and Federal

securities laws because they do not want the oversight due to a history with

regulatory agencies. (IV P. 256 Ln. 14 - P. 267 Ln. 4).

18

The State relied on Mr. Oman's testimony in arguing against directed

verdict (V P. 53 Ln. 2 - 7). The state referenced Mr. Oman's testimony in

closing argument and spoke in detail about some of the concepts he raised

during his testimony though they did not attribute it to him. In the State's

initial closing argument, reference was made to the fact others were not

aware of Appellant's history with the Texas State Securities Board (V P. 64

Ln. 9 - P. 65 Ln. 7); the State argued Appellant was guilty of Engaging in

Organized Criminal Activity due to his failure to correct false impressions

about his past (V P. 68 Ln. 3 - P. 69 Ln. 4). In the State's final summation,

the lawyer for the State made a direct reference to Mr. Oman and his

discussion of the oil and gas language in the prospectus linking the fact

Appellant was previously in the oil and gas industry (V P. 92 Ln. 1-14). In

the final moments ofjury argument, the State discussed Appellant's failure

to disclose to others his regulatory history which touched on a pointMr.

Oman made in his testimony (V P. 95 Ln. 14- P. 96 Ln. 3).

Other Non-Accomplice Evidence

The State showed Appellant had been sued and hada judgment for

over $500,000 against him (III P. 158 Ln. 16 - 18); that Appellant had

19

unsuccessfully attempted lawful discharge of his debts through Bankruptcy

proceedings (IIIP. 35, Ln. 6-17), (State's Exhibit 10), and that Appellant

had a cease and desist letter from the Texas State Securities Board on a

previous matter (State's Exhibit 8). This evidence was advanced pursuant to

the State's theory that Appellant failed to disclose material information to

investors.

Charge Conference

During thejury charge conference the State relied upon Tex.Pen.C.

31.03(c)(2) arguing the testimony of an accomplice witness is sufficient to

prove knowledge and intent as it applies to theft. The State generally

referred to facts they thought were proven but citedno sources of evidence -

and thus no sources of evidence independent from accomplice witness

testimony connecting Appellant to the offense. (IV P. 277 Ln. 21 - P. 280

Ln. 19).

Summary of the Argument

I. The Evidence Is Insufficient under Jackson v. Virginia to Convict

Appellant of Engaging in Organized Criminal Activity; to wit,

theft over $200,000.

Based on the elements of the offense as defined by statute and the

indictment, the State was required to prove Appellant intentionally or

20

knowingly established, maintained, or participated in a combination or in the

profits of a combination, by intentionally or knowingly committing the

offense oftheft, and the property obtained bythe theft was obtained pursuant

to one scheme and continuing course of conduct, and had an aggregate value

of $200,000 or more. After viewing the evidence in the light most

favorable to the verdict, no rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. The juryunfairly

or irrationally inferred Appellant's guiltbased on the facts presented.

II. The Non-Accomplice Witness Evidence Fails to Connect

Appellant to the Offense Charged

The only evidence of Appellant's guilt, if any, was based on testimony

of accomplice witnesses. No evidence from non-accomplices tended to link

or connect Appellant to the charges in this case. The State relied on

Tex.Pen.C. 31.03(c)(2) to survive directed verdict as to the knowledge and

intentelements of theft, however, a conviction for engaging in organized

criminal activity withtheft as the predicate offense requires a separate

showingof knowledge or intentto establish, maintain, or participate in a

combination or in the profits of a combination. Because the only evidence

establishing intentand knowledge to enterthe combination, if any,

21

was from accomplice witness testimony, the facts are legally and factually

insufficient.

III. The State's Solicitation of the Prosecutor's Supervisor's

Testimony as an Expert Witness Marred the Proceedings and

resulted in Structural Error Requiring Reversal

The State called Joseph P. Oman, an attorney licensed to practice law

for 31 years as an expert witness. Mr. Oman stated his employment was

with the Texas State Securities Board in Dallas - the same office for trial

counsel for the State. Prosecutors have enhanced credibility, which is why

they should be mindful of testifying in cases theyprosecute. Were this not

enough, an expert witness also has enhanced credibility above and beyond

normal fact or lay witnesses. Mr. Oman's testimony resolved hypotheticals

against Appellant, and also testified Appellant's modus operandi comported

with person who engage in similar types of fraud. Mr. Oman's presence as a

expert witness and his testimony severely damaged and affected Appellant's

rights. Mr. Oman should have been struck as a witness or in the alternative

the trial counsel should have been recused. In either event the error is

structural because it impacted the framework of the proceedings.

IV. The Trial Court Erred in Allowing Deposition Testimony Into the

Record where Appellant was Not Present During the Witness

Testimony

22

Appellant was not present at the video deposition of James Willis or

Alma Sparks. The record is silentwhether Appellant was presentfor the

depositions of Dr. Herman Peace and/or Billie Neville. These witnesses did

not appear live but instead through video depositions offered in lieu of live

testimony. The Sixth Amendment to the U.S. Constitution allows an

accused to be present for his ability to consult with counsel about

questioning of a witness and so the witness is aware of the presence of the

accused. BecauseAppellantwas not present for their testimony and cross-

examination, his 6th Amendment Rights were violated. This was harmful

error pursuant to Tex. R. App. P. 44.2(a).

Argument

I.

The Evidence is Insufficient Under Jackson v. Virginia to Sustain a

Conviction for Engaging in Organized Criminal Activity

When an Appellant argues the evidence is legally insufficient to

support his conviction, the reviewing court must consider all the evidence in

the light most favorable to the verdict and "determine whether, based on that

evidence and reasonable inferences therefrom, a rational fact finder could

have found the essential elements of the crime beyond a reasonable doubt."

Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson

23

v. Virginia, 443 U.S. 307 (1979). A reviewing court cannot "re-evaluate the

weight and credibilityof the record evidence" and "substitute [its] judgment

for that of the fact-finder." Williams v. State, 235 S.W.3d 742, 750 (Tex.

Crim. App. 2007) (quoting Dewberry v. State, 4 S.W.3d 735, 740 (Tex.

Crim. App. 1999)).

The elements for engaging in organized criminal activity as charged

here are that Appellant intentionally or knowingly established, maintained,

or participated in a combination or in the profits of a combination by

intentionally or knowingly committingthe offense of theft, and the property

obtained by the theft was obtained pursuantto one scheme and continuing

course of conduct and had an aggregate value of $200,000 or more.

TEX.PEN.C. 71.02(a)(1).

In analyzing sufficiency, the Court is to "determine whether the

necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable

to the verdict." Hooper v. State 214 S.W. 3d 9, 16-17 (Tex.Crim.App. 2007)

(emphasis added). Thus it can be inferred sufficiency is not merely the

viewing evidence of guilt in a vacuum, but reviewing the totality of the

record.

24

Tex.Pen.C. 2.01 is often over-looked but it clearly holds "all persons

are presumed to be innocent and no person may be convicted of an offense

unless each element of the offense is proved beyond a reasonable doubt."

This provision clearly applies to jurors. While this court is bound to

consider the evidence in the light most favorable to the guilty verdict- it

must do so considering a rational juror is underthe duty to presume the

accused innocent when resolving evidence in a case. Indeed, very few

successful embezzlement combinations occurwhere a principal gives an

agent a prospectus for investors containing page after page of bold-

capitalized disclaimers and admonitions about how investors can lose all

their money.

Only one rational inference can be made where accomplice witnesses

deny a combination took place, where the voluntary confessions fail to

inculpate Appellant, and where at least one accomplice states Appellant was

not made aware of the fraudulent nature of the acquisitionof funds at the

time they werepaid: that Appellant didnot enter into a combinationfor the

purposes ofcommittingtheft.

The State would likely argue accomplice-witnesses established the

guilt of Appellant standing alone. Again, none of VCPAs, however, directly

25

inculpate Appellant. Additionally, each denied, to varying degrees, any

wrongdoing that would be necessary to establish a combination in violation

Tex.Pen.C. 71.02(a)(1). The only fact established by their cumulative

testimony is that Appellantwas the person who gave them materials and

information they could useto solicit investors and that he was in charge of

the main deal with SUNX. The defrauded investors, however, were given

completely mutilated versions of Appellant's original information if they

were told about a biodiesel plant at all.

Mr. Vanloontold investors he was an attorney (IV P. 198 Ln. 9 -17).

Mr. Nichols tricked at least one investor who didn't even know he

was investing in a biodiesel plant (III P. 196 Ln. 21 - P. 197Ln. 6).

Mr. Nichols asked investors to roll over annuities and other

investments into their venture (III P. 185 Ln. 1-P. 187 Ln. 16).

The State can point to no evidence Appellant took part, sanctioned, or

even knew of this out-right fraud. If anything, the criminal actions of Mr.

Nichols and Mr. Vanloon were unforeseeable. When their outrageous

shenanigans are juxtaposed with Appellant's innocent conduct such as

issuing a prospectus with ominous disclaimers and later telling investors

"there's no guarantee of anything," the only rational conclusion is Appellant

26

was not part of a combination with the bad actors.

Indeed, a juror presuming Appellant innocent could only rationally

find where Appellant's materials had not been forwarded to the ultimate

investor and where his project had been presented in such a twisted manner

to the ultimate investor that he had no way of knowing about the fraud. In

fact, the evidence showed as much when John Riddle testified Appellant did

not know the means by which the funds were raised nor would he have any

reason to suspect the means were foul (III P. 141 Ln. 11 - 17).

Therefore, because the evidence in this case when taken as a whole

does not rationally or reasonably establish Appellant's guilt beyond a

reasonable doubt, the evidence is insufficient.

II.

Even if the Evidence was Sufficient, it was Based on Accomplice

Witness Testimony Alone and the Non-Accomplice Witness Testimony

Fails to Connect Appellant to Any Crime

Tex.Code.Crim.P. 38.14 states that "a conviction cannot be had

upon the testimony of an accomplice unless corroborated by other evidence

tendingto connectthe Appellant with the offense committed; and the

corroboration is not sufficient if it merely shows the commission of the

27

offense." Therefore, in any case where accomplice testimony forms a part

of the evidence, there must be sufficient corroboration of the testimony for a

conviction to stand. There must be some corroboration other than the

statements or testimony of other co-conspirators. Badillo v. State, 963

S.W.2d 854, 857 (Tex. App.—San Antonio 1998).

To determine if the accomplice testimony was corroborated, the fact

finder at the trial court level (and the appellate court at the present level)

must "eliminate all accompliceevidence from the record and [then]

determine whether the inculpatory facts and circumstances in evidence tend

to connect the appellant to the offense." Morin v. State, 960 S.W.2d 132,

136 (Tex. App.—Corpus Christi 1997), citing Munoz v. State, 853 S.W.2d

558, 559 (Tex. Crim. App. 1994).

Tex.Pen.C. 31.03(c)(2) provides a narrow exception to the

accomplice witnesstestimony rule in theft offenseswhere accomplice

witness testimony may be sufficient to establish the intentor knowledge

elements alone. The exceptiondoes not apply to any other element such as

identity or the appropriation of property. Furthermore, the exception does

not alleviate the State of having to prove the separate mental state of

28

entering into a combination for engaging in an organized criminal activity

statute.

Here, Appellant contends the State all but conceded during argument

against directed verdict only accomplice witness testimony connects

Appellant to the offenses in question(V P. 53 Ln. 2 - 7).

Indeed, the State's reasoning seemed to be if they multiplied enough

zeroes, they would eventually generate positive numbers in connecting

Appellant to the offense. The State called sevennon-accomplice witnesses

and had 47 exhibits entered into evidence. It seemed as if the state's theory

was, "where there is smoke, there is fire" but no evidence broke the barrier

they needed.

James Willis:

James Willis is the only witness who came closeto linking Appellant

with the conduct of the accomplice witnesses. Mr. Willis testified he had

never met Appellantin person and that he was only aware of Appellant well

afterhaving his money stolen by Ronnie Nichols. Mr. Willis had a lengthy

phone conversation with Appellant where Mr. Willis was not even able to

authenticate Appellant's voice on the recording. The individual purporting

29

to be Appellant encouraged Mr. Willis to contact Greenway about getting a

refund, continued to express optimism about the project encouraging Mr.

Willis to keep his money invested and finally cautioning Mr. Willis that

nothing was guaranteed to anyone. Mr. Willis even told Appellant that had

Mr. Nichols explained the project to him the way he had, he never would

have invested (Exhibit 32-2, approximately 18:21 and 21:45 into the

recording as estimated by Appellant's attorney).

The phone call only confirms Mr. Willis had been defrauded and that

Mr. Lawrence felt the project was still a worthwhile investment. Again,

because Appellant had no way of knowing the fraudulent activity of

Greenway at that point- he would naturally not take any otheraction with

Mr. Willis thanreferring him backto the ones who had initially taken their

money... which he ultimately appeared to do in on the call.

Eliza Lujan

Expert accountant Eliza Lujan's testimony did not connect

Appellant's conduct to the offenses committed with the Greenway

accomplices or Ronnie Nichols. Ms. Lujan's testimony can be summarized

as selecting questionable sounding expenditures without giving context and

when pressed on whether the expenditure was legitimate - Ms. Lujan

30

retreated into her safe harbor that she was onlytestifying as a conduit of

information and it was for thejury to decide the legitimacy of the

expenditure. (E.g. V P. 18 Ln. 1- P. 19 Ln. 8). Ms. Lujan's reckless guess

that Hunter Lawrence could have been Appellant's child and was being paid

in stolen proceeds from the elderly degrades the entire judicial process. A

juror might notthink twice about such testimony butit would rightfully

incense someone who truly believed in their loved one's innocence and

would only make them bitter after a conviction.

Thomas Petersik:

It is clearthe State's strategy in calling Mr. Petersik to testify was to

show representations by Appellant about "The Fireman's Fund" insurance

policy were a sham. Mr. Petersik had to communicate with Greenway to

cease and desistrepresentations they had been making (IV P. 36 Ln. 4 - P.

37, Ln. 18)(State's Exhibit 27).

Mr. Petersik's only testimony about Appellant or Green Diesel was

that his research showed neitherhad a policy with "Fireman's Fund" (IV P.

35 Ln. 6 - P. 36 Ln. 1). Further, Mr. Petersik testified there was nothing

fraudulent from what he could tell about representations about Fireman's

Fund in the prospectus presented to him. Not only did Mr. Petersik's

31

testimony fail to connect Appellant with a criminal combination - it

reinforced the obvious conclusion that Greenway had again pervertedand

distorted truthful information Appellant had given to them in the first place

to lure victims.

Garland Downing

Mr. Downing was an elderly investor who had been defrauded. Mr.

Downing said nothing which would tend to connect Appellantwith the

offense(IVP. 51Ln.9-ll).

Todd Crosby

Mr. Crosby was called by the State to establish a past civil judgment

against Appellant in support of the State's claim Appellant failed to disclose

material information (IV P. 65 Ln. 15 -P. 68 Ln. 16). Mr. Crosby also

testified he had been sued by Appellant and/or L&C Consultants for Theft at

one point. Nothing in Mr. Crosby's testimony connectedAppellantin any

way to the fraud and theft committed by Greenway.

Richard Waskom

Mr. Waskom testified he has a $150,000 judgment against him from

Appellant and/or L&C Consultants that he has no intention of paying (IV P.

32

106 Ln. 12 - P. 107 Ln. 5). Mr. Waskom testified to establish Appellant had

beenpreviously sued and had a judgment takenagainst him and to the facts

of that underlying lawsuit (IV P. 81 Ln. 6 - P. 100 Ln. 24). Mr. Waskom

was not asked about the current charges against Appellant and thus did not

provide any testimony connecting him to said offense.

Herman Peace:

Dr. Peace was an elderly investor who had been defrauded. The State

can point to nothing said by Dr. Peace that would tend to connect Appellant

with the offense.

Billie Nevill:

Ms. Nevill was an elderly investor who had been defrauded. The

State can point to nothing said by Ms. Nevill that would tend to connect

Appellant with the offense.

Alma Sparks

Ms. Sparks was an elderly investor who had been defrauded. The

State can point to nothing said by Ms. Sparks that would tend to connect

Appellant with the offense.

33

Joseph Oman

Mr. Oman,the supervisor for trial counsel, generally testified about

hypothetical concepts surrounding securities fraud and aboutgeneral

criminal conduct whereby people with regulatory history attempt to evade

regulation (IV P. 256 Ln. 14 - P. 267 Ln. 4). Though Mr. Oman's testimony

was hardlyharmless - it did nothing to link Appellant to the offense other

than those generalizations (E.g. IV P. 256 Ln. 14- P. 257 Ln. 4). In the

alternative, if Mr. Oman's testimony did tend to linkAppellant to the

offense, Appellant asserts Mr. Oman's comments be regarded as argument

and not testimony.

Because there is no Non-Accomplice Witness evidence which tends to

connect Appellant with the commission of Engaging in Organized Criminal

Activity; to wit, Theft over $200,000, judgment in this case should be

reversed and rendered.

III.

The State's Calling of the Prosecutor-Witness as an Expert Was

Structural Error Requiring Reversal

Texas Rule of Professional Conduct 3.08 forbids lawyers from being

witnesses in their own cases. Rule 3.08(c) imputes representation across the

34

firm of the attorney. Particular dangers posed when a prosecutor testifies

against a criminal Appellant have been recognized in the past that (1) the

prosecutor will not be a fully objective witness; (2) it is feared the prestige

of a Government attorney's office will enhance the witness' credibility; (3)

the prosecutortestifying might "create... confusion on the part of the jury as

to whether he [is] speaking in his capacity of prosecutor or witness." Such

confusion may result in the fact finder affording testimonial credit to the

prosecutor's closing arguments; and (4) it reflects a broader concern for

public confidence in the process ofjustice. House v. State, 947 S.W.2d 251,

254 (Tex.Crim.App., 1997 En Banc) (Baird Dissenting).

Rule 3.08 is grounded principally on the notion that the finder of fact

may become confused when one person acts as both advocate and witness.

See Tex. Disciplinary R. Prof'l Conduct 3.08 cmt. 4; In Re: Guidry, 316

S.W.2d 729 (Tex.App. - Houston [14th Dist.]). The rule reflects the concern

that an opposingparty may be handicapped in challenging the credibilityof

a testifying lawyer. Anderson Producing, Inc. v. Koch Oil Co., 929 S.W.2d

416 (Tex. 1996).

Though Texas Courts have issued tough dicta against the practice -

Texas Courts have consistently found reasons to uphold cases with incidents

35

of prosecutors testifying. See Housev. State, 947 S.W.2d 251, 254

(Tex.Crim.App., 1997 En Banc), Brown v. State, 921 S.W.2d 227

(Tex.Cr.App. X996), Powers v. State, 165 S.W.3d 357 (Tex.Crim.App.-

2005), and Digges v. State 2012 WL2444543 (Tex.App. - Dallas,

2012)(unpublished). These cases are informative butnot instructive as they

do not deal with the issue here - which is whether the tactic constitutes

structural error.

In House, Justice Baird in his dissent notes otherjurisdictions have

dealt withthis issue and have looked upon it with disfavor. E.g., United

States v. Trapnell, 638 F.2d 1016,1025 (7th Cir. 1980) (observing that

appearance of prosecutor as witness is improper except in extraordinary

circumstances); UnitedStates v. Birdman, 602 F.2d 547, 552-553 (3rd Cir.

1979) (notingcourts and especially federal courts universally frown on

practice of prosecutor testifying), cert, denied, 444 U.S. 1032 (1980); United

States v. Torres, 503 F.2d 1120, 1126 (2nd Cir. 1974) (prosecutor should not

be used as witness unless all other sources of testimony exhausted);

Robinson v. UnitedStates, 32 F.2d 505, 510 (8th Cir. 1928) (practice of

prosecutor acting as witness should be disapproved except in most

extraordinary circumstances). Rarely should such testimony be permitted

and, if the prosecutor testifies, he should then withdraw from any further

36

participation in front of the jury. E.g., UnitedStates v. Johnston, 690 F.2d

638, 644 (7th Cir. 1982).

Texas Courts have been reluctantto afford Appellants a windfall

merely because their opponent may have committeda violation of the Texas

Rules of Professional Conduct. The Court of Criminal Appeals has held,

"The rules do notgrant a Defendant standing or some 'systematic' right to

complain aboutan opposing party's alleged disciplinary rule violations that

do not result in actual prejudice to a Defendant... The rules should not be

used as a tactical weapon to disqualify opposing counsel for their alleged

disciplinary rule violations or to obtain a reversal of a conviction for alleged

disciplinary rule violations by the opposing counsel unless the Appellant can

show the alleged disciplinary rule violations by opposing counsel deprived

him of a fair trial or otherwise affected his substantial rights." SeeHouse, at

253 citing Brown at 231 -232 (Tex.Cr.App. 1996). Again, the House and

Brown cases do not resolve whether the error in the case is structural.

Further, in Powers v. State, 165 S.W.3d 357 (Tex.Crim.App. - 2005),

the Court of Criminal Appeals adopted a "dual role" standard whereby as

long as a prosecutor does not actively participate in the trial other than

testifying, he is not serving in a "dual role" as lawyeran witness in the same

37

case. The Court's rationale, however, renders Rule 3.08(c) meaningless,

which imputes representation to the entire office of the lawyer and ignores

the fact the witness' credibility is enhanced merely bythe office or title he or

she holds.

"A 'structural' error 'affect[s] the framework within which the trial

proceeds, ratherthan simply an error in the trial process itself,'" and is not

amenable to a harm analysis. Jordan v. State, 256S. W. 3d286, 290 (Tex.

Crim. App. 2008) (quoting Arizona v. Fulminante, 499 US. 279, 310

(1991)). All structural errors must be founded on a violation of a federal

constitutional right, but not all violations of federal constitutional rights

amount to structural errors. SeeDavila v. UnitedStates, 133 S. Ct. 2139,

2149, (2013). UnderDavila, a structural error is a very limitedclass of error

that triggers automatic reversal because they undermine the fairness of a

criminal proceeding as a whole. Error of this kind includes denial of counsel

of choice, denial of self-representation, denial of public trial and failure to

convey to a jury that guilt must be proved beyond a reasonable doubt. Id.

The rule of conduct is also based the concern that an opposing party

may be handicapped in challenging the credibility of a testifying attorney.

SeeAnderson Producing v. Koch Oil Co. 929 S.W.2d at 416 citing Ayers v.

38

Canales 790 S.W.2d 554 (Tex. 1990). This rationale has obvious over-tones

and implications withregard to the Sixth Amendment Rightto Confront.

The fact that a lawyer simultaneously serves as both an advocate and a

witness does not in itselfcompel disqualification. In re Sanders, 153 S. W.3d

54, 57 (Tex. 2004). Disqualification is only appropriate if the lawyer's

testimony is "necessary to establish an essential fact." Tex. Disciplinary R.

ProfIConduct 3.08(a); seeIn re Sanders, 153 S. W.3d at57. The party

requesting disqualification must demonstrate that the opposing lawyer's dual

roles as lawyer and witness will cause the party actual prejudice. See id.

Though the Texas Rules of Professional Conduct Preamble para. 15

statesthe rules are not designed to be standards for procedural decisions; the

trial courtmay disqualify an attorney in order to prevent a violation of Rule

3.08. Seeders, 790 S.W.2d at 557.

Appellant concedes no objection was made at trial nor was any effort

made by Appellant's trial counsel to strike Mr. Oman as a witness or recuse

the State's trial counsel. Appellant contends the lack of objection, though, is

immaterial if the error in the case is structural in nature.

Here, Appellant's rights were harmed in a manner that was one of the

primary concerns of Rule 3.08. The State utilized the prestige of their office

39

in both the prosecution of Appellant and in submitting factual issues against

Appellant. In doing so, the State posed a witness who it was virtually

impossible to effectively cross-examine or discredit violating his Sixth

Amendment Right to confront. In fact, Appellant here was even more so

damaged than were the Appellants in Brown and House because here the

State proffered a prosecutor from the same office as an expert witness (IV.

P. 237 Ln. 12 - P. 240 Ln. 6). Further the State relied on the witness'

testimony in arguingagainst directedverdict (V P. 53 Ln. 2-7) and

repeatedly followed-up on themes and concepts from the witness during

closing argument including their very last words to thejury before they

retired to deliberate (E.g. V P. 64 Ln. 9 - P. 65 Ln. 7) (V P. 68 Ln. 3 - P. 69

Ln. 4) (V P. 92 Ln. 1 - 14) (V P. 95 Ln. 14 - P. 96 Ln. 3).

The error in allowing the State to call as an expert witness a

prosecutor from their office is exponential. It marred the proceedings by

misappropriating the prestige of their office to enhance the credibility of a

witness. It created confusion on the part of the jury as to whether the

witness was speaking in his capacity as prosecutor, as a neutral witness, or

both. It afforded testimonial credit during closing argument to what the

prosecutor argued from the stand. It reflected broader concern for public

confidence in the process of justice. It finally impaired Appellant's ability to

40

effectively cross-examine the witness due to his enhanced credibility and

prestige. The error in allowing such a witness to testify is of the type

contemplated byDavila in thatthe fairness of the criminal proceeding as a

whole has been undermined.

The State may argue in their own defense trial Counsel was a special

prosecutor for Collin County and therefore wasn't under Mr. Oman's direct

supervision for this particular prosecution. While this may technically be

true it does little to erase the problems caused by the violation ofRule 3.08

and the notion this rule can be successfully evaded by switching bosses on a

temporary basis would not be one jurors or the public would accept as

reasonable. Further, without knowing how the Texas State Securities Board

operates - whether theyare special prosecutors in every case they prosecute

in every county - allowing the entity to engage in this practice based on a

minute distinction invites only more similar instances.

The State relied on the expert's testimony to survive directed verdict

(albeit for one of the indictments that resulted in acquittal) that there was no

requirement thatthe person committing the offense [ofsecurities fraud]

knows whether or not it is a security. The State's use of Mr. Oman's

testimony was to develop facts essential to their theory ofthe case for

41

conviction. Therefore, exclusion was appropriate. Tex. Disciplinary R.

Prof'l Conduct 3.08(a); see In re Sanders, 153 S.W.3d at 54, 57 (Tex

2004).

Further, the error is "structural" because it affected the framework

from which the trial proceeded rather than just an error in the process.

Indeed, the appropriate remedy in this case should have been to disqualify

eitherthe witness or the particular officeprosecuting the case. Either

remedy, or failure to grant such remedy, would have substantially affected

the framework of the trial.

Therefore, because the error in this case in allowing the Stateto call as

an expert witness a lawyer from their own office is structural in nature -

reversal is required.

IV.

Appellant's Sixth Amendment Rights were Violated Because He Was

Not Present at the Depositions of at Least Two and Possibly up to Four

Witnesses. The Violation Should Result in a Reversal of this

Conviction.

An Appellant's right to be physically present at every stage of his trial

has a longstanding tradition in this country's criminal jurisprudence, with

origins in both the Due Process Clauses,Kentucky v. Stincer, 482 U.S. 730,

745 (1987) ("[A] Defendant is guaranteed the rightto be present at any stage

42

of the criminal proceeding that is critical to its outcome if his presence would

contribute to the fairness of the procedure."), and the Confrontation Clause

ofthe Sixth Amendment, Illinois v. Allen, 397 U.S. 337, 338 (1970) ("One of

the most basic of the rights guaranteed by the Confrontation Clause is the

accused's right to be present inthe courtroom at every stage ofhis trial.").

Gray v. Moore, 520 F.3d 616, 622 (6th Cir. 2008).

A vital aspect of the right of confrontation and cross-examination is

safeguarding the integrity of the fact-finding process. Stincer at 736. As the

Gray court pointed out:

By "integrity," we do not merely mean the

perception of a fair trial, but also the tactical

assistance [the accused] could have offered his

attorney while he questioned [the accuser] about

her testimony. Although [the accused] had the

opportunityto consult with his attorney after the

court removed him from the courtroom and before

the startof [the accuser's] cross-examination, [the

accused] was not present during the actual

cross-examination and therefore could not

assist his attorney in following-up to any

answers [the accuser] provided on cross-

examination. [Illinois v. Allen, 397 U.S. 337,344,

(1970)] (noting that "one of the Appellant's

primary advantages to being present at the trial [is]

his ability to communicate withhis counsel").

Gray at 627. (Emphasis added).

43

Additionally, the Gray courtpowerfully explained, "the principles

embodied in the SixthAmendment are not meant to protect the rights of

witnesses, but rather those of the accused, whose life and liberty lies in the

hands of his peers." Id.

The right to confrontation is a right personal to an Appellant, and may

not be satisfied by the Appellant's attorneybeing presentat the deposition

while the Appellant is absent due to illness, the Texas Court of Criminal

Appeals has explained:

Whether the reliability of the testimony is

otherwise assured turns upon the extent to which

the proceedings respect the four elements of

confrontation: physical presence, oath, cross-

examination, and observation of demeanor by the

trier of fact. In Maryland v. Craig, the Supreme

Court found sufficient assurance of reliability in a

procedure that denied one of these elements-

physical presence-where the remaining three

elements were unimpaired (emphasis added). In

that case, a child witness testified in front of a one

way closed-circuit monitor that prevented her from

seeing the Appellantbut permittedthe judge,jury,

and Appellant to see the witness. Because the

witness was under oath, subject to

contemporaneous cross-examination, and her

demeanor was on display before the trier of fact,

the Supreme Court found that the procedure

adequately ensured that the testimony was "both

reliable and subject to rigorous adversarial testing

44

in a manner functionally equivalent to that

accorded live, in person testimony."

Romero v. State, 173 S.W.3d 502, 505

(Tex.Crim.App.2005).

The ConfrontationClause of the United States Constitutionguarantees

to every person charged with a crime the right to be confronted by the

witnesses against him. Garcia v. State, 151 Tex. Crim. 593, 598 (Tex. Crim.

App. 1948). The Texas Court of Criminal Appeals has further expounded

by stating that, "the constitutional provision that the accused shall be

confronted with the witnesses against him means that the witnesses on the

part of the state shall be personally present when the accused is on trial, or

that they shall be examined in his presence and be subject to cross-

examination by him." Id. (quoting Kemper v. State, 63 Tex. Crim. 1 (Tex.

Crim. App. 1911). Furthermore, it is commonly agreed that the practice of

confrontation has two purposes, with the foremost and crucial one being to

secure the opportunity of cross-examination. Id at 600 (citing Snyder v.

Massachusetts, 291 U.S. 97 (1934)).

Interestingly though, the Texas Code of Criminal Procedure carves out

an exception to an accused's right to be confronted in the presence of a

witness. The Code states that "a defendant's failure to attend a deposition or

request a continuance in accordance with this subsection constitutes a waiver

45

ofthe defendant's right to be present at the deposition." Tex.Code.Crim.P.

39.025(g).

To be sure, the Sixth Amendment right of confrontation is "by its

language and historical underpinnings, a personal right of the accused and is

intended for his benefit." UnitedStates v. Carlson, 547 F.2d 1346, 1357 (8th

Cir. 1976). Therefore, this right, in the same way as other federally assured

constitutional rights, can be waived by the accused. Id at 1357-58.

However, and importantly where Article 39.025 of the Texas code of

Criminal Procedure is unconstitutional, to constitute a valid waiver there

must be "an intentional relinquishment or abandonment of a known rightor

privilege" by the accused. Johnson v. Zerbst, 304 U.S. 458,464 (1938).

Appellant concedes the depositions were lawfully applied for, ordered

by the Court, and notice given to Counsel for the Defense (380-80745-2011

CR 41 - 43). The record is silentas to why Appellant had not attended.

Perhaps his lawyer did not inform him of the dates. Perhapsthe travel

burden was too great for Defendant to attend, or perhaps the times and dates

for the Deposition were unreasonable and done without meaningful

conference.

46

Tex.RCrim.P. 39.025(g) cannot be harmonized with the U.S.

Supreme Court's ruling inJohnson. Failure to attend a deposition with no

explanation whatsoever on the record is not "an intentional relinquishment

or abandonment of a known right or privilege." It may be an intentional

relinquishment or thenagain it isjust as likely an act of omission or

negligence. Further, it impermissibly shifts the burden on a criminal

defendant to participate in his own defense by potentially forcing him to

travel hundreds of miles from where he or she may be charged if he or she

wants to exercisetheir constitutional rights. It places the needs of the

witness over the rights ofthe defendant. Because Tex.R.Crim.P. 39.025(g)

deems a waiver of defendant's right to confront without regard to whether

the failure to attend the deposition was "an intentional relinquishment" the

provision cannot be saidto be anything otherthan unconstitutional under

Johnson.

Finally, it should be noted one of the witnesses where Mr. Lawrence

was not present was James Willis. Mr. Willis was the most damaging of all

the investor witnesses.

The trial court abused its discretion by admitting the deposition

testimony at trial after allowing the deposition to go forward in Mr.

Lawrence's absence, violating his constitutional rightto confront and cross-

47

examine the witness. We request, underRule 44.2(a), a reversal of the trial

court'sjudgment unless it is determined beyonda reasonable doubt that the

errordid not contribute to Mr. Lawrence's conviction or punishment.

Prayer

Based upon the foregoing arguments, Appellant prays for and requests

that this Court reverse and enter a judgment of acquittal on the issues or in

the alternative reverse and remand these proceedings to the trial Court.

Appellant respectfully prays for any and all reliefin lawand equity to which

he is justly entitled.

RESPECTFULLY SUBMITTED,

Kenneth Paul Lawrence

404 Lee St.

Wolfe City, TX 75496

Phone: 972-768-3361

kennylawrence@Yahoo.com

ProSe

48

Certificate of Service

This is to certify that this document was sent to Greg Willis, District Attorney,

and Emily Johnson-LiuAssistant Criminal District Attorney, by and through

their counsel of record on the date filed, pursuant to the Texas Rules of

Criminal and Appellant Procedure

Kenneth Lawrence

ProSe

49

i * c

1U* 3 -JI 0-

cooimi

nF\J

-s-- —• OO

-i -W—I CO

— X -i

-*N