Kelvin Lynn O'Brien v. State

Opinion issued December 15, 2015

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00229-CR
———————————
KELVIN LYNN O’BRIEN, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1415067

OPINION

Appellant Kelvin Lynn O’Brien appeals from his felony conviction for

engaging in organized criminal activity. See TEX. PENAL CODE ANN. § 71.02

(West 2014). Kelvin contends that the jury charge improperly permitted

conviction without jury unanimity and improperly instructed the jury regarding an
uncharged method of committing the offense. Kelvin also challenges the trial

court’s admission of extraneous offenses and the expert testimony of a diamond

appraiser. Finally, Kelvin complains that the trial court erred in permitting Kelvin

to represent himself mid-trial. We affirm.

Background

The Karat 22 heist

On February 6, 2011, Officer M. Santana of the Houston Police Department

(“HPD”) responded to a call regarding a burglary and theft at a gold and jewelry

store named Karat 22 owned by Chitranjan “Aku” Patel, which was located in a

strip mall in Houston. When Santana arrived at the store, Aku’s daughter, Rachna

Patel, showed him that someone had cut through the ceiling of the store and into

the room-sized vault that stored the gold and jewelry the store sold and stored for

clients. Millions of dollars worth of jewelry and gems had been stolen. The loss

exceeded the store’s $2.2 million insurance policy limit by at least $2.3 million.

The gold jewelry that Karat 22 sold was unusually pure. Most jewelry stores

sell jewelry made of, at most, 18-karat gold, but 22-karat gold is preferred in the

South Asian community and Karat 22 caters to South Asian customers. 18-karat

gold is about 75 percent pure, while 22-karat gold is 91.6 percent pure.

The thieves deactivated the store’s alarm system by disabling the alarm

apparatus in the store’s attic. Aku, who was home the night of the theft, had

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checked the store’s video feed and determined that all looked normal just before he

received a phone call from the alarm company that the alarm was experiencing a

communication failure. The alarm routinely experienced communication failures

at least four or five times a month, so Aku did not believe that the failure was due

to a break-in.

Officer M. Bortmas of the HPD’s Burglary and Theft Division investigated

the theft. Bortmas testified that the thieves used a grinding tool to cut the lock on

the back door and a hole in the roof. Below the hole in the roof was the concrete

top of the vault, which had also been cut through using a cut-off wheel. The

thieves left behind a number of used and discarded cut-off wheels. Inside the

vault, empty jewelry boxes were strewn everywhere, and the only items not taken

were several watches that were not made of precious metal. The store had

cameras, but the DVRs that recorded the video from the cameras had been

damaged by the thieves so that no video was available.

A video recorded by a neighboring store, however, aided HPD’s

investigation. The video showed a truck parked on the street across from Karat 22

several days before the theft. The truck made an unusual maneuver and then two

people exited the truck and walked around the building. Another camera recorded

the same truck driving behind Karat 22 and several men loading bags and buckets

into the truck beginning at 4:20 a.m. the morning of the theft. Videos from another

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neighboring store showed the truck’s license plate, which law enforcement traced

to determine that the truck was registered to Jason Kennedy, who lived in the

Dallas/Fort Worth area.

The leads to Kennedy, John, Derenda, and Kelvin

Once Kennedy was identified as a suspect, HPD brought the Federal Bureau

of Investigation (FBI) into the case. Sergeant F. Quinn of HPD’s Major Offenders

Division spearheaded the effort to track the purchase of the cut-off wheels that

were left behind by the thieves. He worked with Brady Bailey, an organized crime

investigator for Home Depot. Quinn asked Bailey to investigate purchases of large

numbers of cut-off wheels in Houston and Dallas. Bailey compiled a list of several

dozen purchases. But one purchase, made on February 4, 2011—the day before

the Karat 22 burglary—stood out. In addition to cut-off wheels, the customer

bought gloves, snipping shears that are used to cut wire or light metal, batteries of

the type that could be used in a small flashlight or headlamps, and a 20-foot ladder.

The customer paid cash, which was unusual for that type of purchase. Bailey

found a video of the transaction, showing the purchaser with a jacket, hat, and a

distinctive wallet, although the person’s face could not be seen on the video.

Bailey located another video that showed the same person outside the store,

placing the ladder and other items into a box truck. Bailey also found a video of a

different transaction involving a person Bailey believed to be the same as in the

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first video. The person in the third video paid with a credit card registered to John

O’Brien, Kelvin’s brother.

John and his wife Derenda owned two jewelry and gold-buying stores, New

York Gold and Silver Exchange, in the Dallas/Fort Worth area, and Kelvin owned

another jewelry and gold-buying store in the same area, New York Gold and

Jewelry. Quinn learned that the Internal Revenue Service (“IRS”) had assigned

two of its special agents, R. Bonham and S. Dawson, to investigate all three

individuals as possibly connected to the Karat 22 theft. Agents Bonham and

Dawson concluded that the O’Briens were connected to Kennedy when they

discovered that a truck wrapped in the New York Gold and Silver Exchange logo

was registered to Kennedy.

In July 2011, Quinn traveled to Dallas/Fort Worth and met with Kelvin’s

wife, Maggie, along with Bonham and Dawson. Maggie voluntarily met with them

and signed a consent form permitting law enforcement to search her home.

Maggie had also previously given Bonham and Dawson consent to search the

home. During that earlier search, the agents seized several appraisals for loose

diamonds, several cut-off wheels, and a hand grinder with an attached cut-off

wheel designed to cut metal. The agents also found a melted blob of gold on

Kelvin’s nightstand.

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Kennedy’s testimony

Kennedy testified that he had been friends with John for about 12 years and

with Kelvin for six or seven years. The three were close friends, and Kennedy

helped John renovate the first store that became New York Gold and Silver

Exchange.

On Saturday, February 5, 2011, John called Kennedy and told him that they

had “some work” to do. Kennedy understood this to mean that they had to break

into a jewelry store. Kennedy grabbed some dark clothes and drove his truck to

John’s. There, they loaded some tools, including grinders, drill bits, and concrete

cutters, into the truck, picked up Kelvin, and drove towards Houston. John told

them that they were “going to hit Karat 22.” John had selected Karat 22 as a target

by looking for Indian or Asian jewelry stores in the telephone book, and John and

Kennedy had previously cased Karat 22.

The men wore dark clothes and ski masks to avoid being identified on

camera and gloves to avoid leaving fingerprints. The men used walkie-talkies to

communicate and headlamps so they could see in the dark. They waited for the

store and nearby businesses to close. Then, Kelvin went up to the roof to cut a

hole and disable the alarm while Kennedy and John acted as lookouts. Kennedy

testified that John had previously told him that typically the alarm system is

directly below wherever an antenna or satellite dish is on the roof and that you

6
have to cut the alarm wires and disable the cellular system to prevent the alarm

from calling out.

After Kelvin disabled the alarm, the three men waited across the street for

about an hour to see if the alarm had been triggered. After confirming it had not,

Kelvin and Kennedy climbed back on to the roof of the building, into the attic, and

on to the top of the vault, where they spent two to three hours cutting through the

vault’s concrete top with cut-off wheels. Kelvin entered the vault through the hole

they cut and then cut open the vault door.

The vault was full of jewelry. The men gathered the jewelry and put it in

trash cans and a shop vac in order to carry it out to the truck. Kennedy estimated

that it took them about three hours to empty the vault and that they took everything

except for some watches that did not have gold on them; they were focused on

items that could be smelted at New York Gold and Silver Exchange’s Watauga

location. John pulled Kennedy’s truck to the back of the store and the men loaded

the jewelry into the truck and drove back towards Dallas.

On the drive to Dallas, John called Derenda and asked her to open the

Watauga store. John’s cell phone records show that he placed two brief calls to

Derenda the morning of February 6th, about a half hour before the alarm at the

Watauga store was deactivated. Kennedy testified that Derenda met them at the

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store, where they unloaded, sorted, and started smelting jewelry to make blocks of

gold. Kennedy left after a couple of hours.

Initially, Kelvin gave Kennedy a gold brick as partial compensation for his

participation in the heist. Later, John took over responsibility for paying Kennedy

and gave him several more gold bricks. Eventually, John told Kennedy that he

could not give him any more gold because the FBI was watching them. Kennedy

was told that he would be paid about $200,000 for his participation, but only

received about $115,000. Kennedy testified that he used some of the money he

received to repair his house but spent most of it on methamphetamines. Kennedy

did not know that the heist had netted nearly $3 million, and when the FBI told

him, he felt that John had not treated him fairly.

Kennedy identified John as the person in the Home Depot video buying the

ladder, tools, and gloves. Kennedy testified that he was waiting for John outside

the store that day in the box truck shown on the video recorded outside the Home

Depot. Kennedy acknowledged that John’s construction crane business, where

Kennedy sometimes worked, used numerous cut-off wheels weekly.

Kennedy admitted that he has been to jail four or five times. At the time of

trial, he had been in the Harris County Jail for two and a half years. Kennedy also

admitted that FBI agents told him he could avoid a 20-year federal prison sentence

if he cooperated with the state prosecutors. He also admitted that he had

8
methamphetamines on him the day he was arrested, but he was not charged with

possessing drugs and the drugs were thrown away. Kennedy admitted that when

he was arrested, he did not immediately confess and originally stated that he did

not know anything about the Karat 22 burglary and had never committed any

burglaries. Kennedy also admitted that originally, he told the agents that he was

the one who cut into the roof and cut the alarm wires, and that John and Kelvin

were in the truck.

Kennedy also testified that he helped John and Kelvin burglarize other

jewelry stores “about four times,” including Nazar’s Jewelry in Houston and an

unnamed store in Austin. The three used the same methods they used in the Karat

22 theft to steal jewelry from those stores. An FBI agent estimated that the total

loss relating to all the burglaries Kennedy committed with John and Kelvin was

$19.6 million.

The flow of funds after the Karat 22 theft

Brian Wallace, the owner of Millennium Precious Metals in the Dallas area,

testified that Derenda and John had approached him several years before the Karat

22 theft. They told Wallace that they wanted to start up a gold buying business and

asked for his advice about what equipment to buy. Derenda and John bought

equipment to melt and analyze gold and opened the two locations of New York

9
Gold and Silver Exchange. The business served as an intermediary to buy gold

from small customers with whom Millennium would not typically deal.

On February 7, 2011, John arrived at Millennium with two buckets full of

melted gold bars weighing 99 pounds. The gold was 84 percent pure, which put it

at a little over 20 karats. A couple of days later, John brought to Millennium

another bucket of gold bars weighing approximately 85 pounds. That gold was 80

percent pure, or a little over 19 karats.

Millennium wired $1.699 million for the first batch of gold to the New York

Gold and Silver Exchange bank account. Before Millennium was able to wire the

second payment, Kelvin showed up at Millennium’s office, angry. He was cursing

and yelling “Where’s my fucking money?” and “I want my fucking money. . . . I

want my gold back.” He complained that John and Derenda were “in Vegas

blowing his fucking money and they weren’t answering their phones and they had

their phones turned off.”

The next day, Kennedy went to Millennium and told Wallace that he was

there on behalf of New York Gold and Jewelry, Kelvin’s store, to collect the

money for the gold that was tendered. Kennedy waited for some time in the

waiting room. Wallace wanted Kennedy to leave before Millennium had to ship its

gold, so he called a larger company that helps Millennium move its gold and asked

them to send some of their undercover policemen. The company sent two men,

10
who sat down on the waiting-room couch beside Kennedy. One of the men opened

his jacket and let his gun show, and Kennedy got up and left.

On cross-examination, Wallace admitted that it is a common practice for his

customers to “pool” gold, meaning that they put gold in a pool account and sell it

only when the gold market reaches a certain level. He testified that over the course

of his business relationship with John and Derenda, he bought gold from them

hundreds of times and millions of dollars changed hands. In 2011, Millennium

paid New York Gold and Silver Exchange $5.2 million. He acknowledged that

New York Gold and Silver Exchange was a legitimate business with strong

advertising and a call center to locate customers. He also acknowledged that he

almost always interacted with John and had seen Kelvin less than five times and

knew that he was newer to the business.

Wallace testified that he did not have any suspicion that the gold John

brought to him in February 2011 was stolen. He testified that Millennium had

purchased gold in November 2010 from John that was over 81 percent pure, which

was a similar degree of purity to the gold purchased in February 2011. Wallace

testified that the February 2011 gold did not match the composition of typical 22-

karat gold, which is 91.7 percent gold and 8.3 percent copper. The February 2011

gold was only “80-something percent” gold and also contained silver, nickel, zinc,

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copper, palladium, and platinum. Wallace acknowledged that this mixture could

have been comprised of 22-karat gold smelted with other types of jewelry.

Frank Wilson, Vice-President of Group Operations, Central U.S., for Ritchie

Brothers Auctioneers, testified that in November 2010, John bid for $1.2 million

worth of heavy equipment for his crane business. Typically, Ritchie Brothers

requires payment within seven days, but it had difficulty getting payment from

John. Ritchie Brothers only received $100,000 from John in November 2010, and

would have “collapsed” the sale on February 14, 2011 and placed the items for bid

at the next auction. However, on February 10, 2011, John paid the $1.1 million

outstanding balance.

Jill Snow, a former employee of Kelvin’s New York Gold and Jewelry who

was responsible for buying gold and silver, testified that most of the jewelry sold

was 14- or 18-karat gold, and the store did not stock gems other than those already

set in the jewelry they sold or very small diamonds. According to Snow, the store

did much more business buying gold than selling jewelry. She testified that a

typical purchase of gold would be in the 10- to 14-karat range and cost the store

several hundred dollars, with a purchase occasionally reaching the $1,000 to

$2,000 range. When New York Gold and Jewelry purchased a gold item, it would

melt it together with other items and take all the melted gold to a refinery weekly,

typically Millennium. At most, a week’s worth of gold would generate a $10,000

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payment, about $3,000 of which would be profit. Snow had access to the

business’s books around the time of the Karat 22 theft, and she testified that the

store was losing about $1,500 on a weekly basis.

Snow testified that she found it unusual that Kelvin brought a bag of jewelry

and hundreds of loose stones to the store in March 2011. She saw Kelvin sort

through the stones and test each one to see if it was real. He also broke apart

approximately 10 Rolexes that were in the bag and melted down the gold bands.

One of the diamonds in the bag was a flawless 3.5 carat stone, which was unlike

anything typically sold in the store. Snow asked Kelvin where he got the jewelry

and Kelvin got mad. He told her that he bought it at an estate sale and then said,

“You know, for all I know, this stuff could be stolen.” He then told Snow that he

was in trouble with the IRS, it “wasn’t [her] business or [her] place to be asking,”

and that they were in a “don’t ask, don’t tell” business.

Snow also testified that Kelvin’s spending habits changed in February 2011

even though the store was not making any more money or conducting any more

business than it had before. He bought a house, a Ferrari, and a Range Rover.

IRS Special Agent Dawson testified that New York Gold and Silver

Exchange received two suspiciously large deposits wired from Millennium within

days after the Karat 22 theft. The first was $1.6 million, wired to the New York

Gold and Silver Exchange account three days after the Karat 22 theft, and the

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second was $1.3 million, wired to the New York Gold and Silver Exchange

account several days later. Dawson also testified that Kelvin and John spent a

suspicious amount of money after the Karat 22 theft. Kelvin purchased a Ferrari, a

Range Rover, a boat, and a nearly $500,000 home with cash. John purchased,

among other things, some expensive heavy equipment.

Bryan Vaclavik, the chief fraud examiner for the Harris County District

Attorney’s Office, testified that New York Gold and Silver Exchange transferred

$1.2 million to New York Gold and Jewelry in February 2011, about ten days after

the Karat 22 burglary. Kelvin used this money to purchase a Ferrari, a Range

Rover, and a home. He also transferred nearly $200,000 to his personal account.

Vaclavik testified that the $3 million inflow from Millennium in February 2011

was inconsistent with activity in the account both before and after the deposit of

that money.

Vaclavik acknowledged in response to questioning by Kelvin that about $35

million came into the New York Gold and Silver Exchange bank account over the

two year period preceding the burglary that appeared to be from legitimate sources.

The State argued that by adducing testimony that gave the jury the impression that

this $35 million was all derived from legitimate sources, Kelvin opened the door to

testimony regarding other extraneous burglaries that could explain the actual,

illegitimate source of the funds. On re-direct, Vaclavik testified that the $35

14
million could have come from other burglaries or from legitimate sources. He also

testified that the businesses did not report any transactions to the State or the IRS

that would explain where the gold that generated the $35 million came from.

Calls to “Doug” and jailhouse admission

John was arrested two weeks before Kelvin. During this time, John made

calls on a recorded prison line to “Doug,” who, an FBI agent testified, was actually

Kelvin. The phone calls were played for the jury. Among other things, in the

phone calls, John tells “Doug” “I’m talking to this guy who’s snitching on us.”

Kelvin, as “Doug,” tells John later “I guess maybe they found some diamond

appraisals.”

Archie Woods, an inmate who was housed with Kelvin in the Harris County

Jail for about five months, testified about conversations that he had with Kelvin

about the Karat 22 theft. Woods was in jail for pleading guilty to burglarizing a

check cashing business and trying to break into a safe with a hammer. Woods

testified that after he told Kelvin about his safe-cracking attempt, Kelvin told

Woods that Kelvin, John, and a third man broke in Karat 22 looking for 22-karat

gold that could be melted because it was “the best gold you could get.” Woods

testified that Kelvin said that they entered through the roof, that the alarm was

triggered but the owner looked at the surveillance cameras and determined there

was no burglary, and that the men proceeded to break into the safe. Kelvin also

15
told him that they used the third man’s truck and that the truck had been caught on

video casing the store, which is how the men were caught. Kelvin told Woods that

the third man was “telling on them.”

On cross-examination, Woods conceded that he had been convicted four

times for burglary. Woods testified that he was not offered a deal in exchange for

his testimony and that he testified against Kelvin because Kelvin was bragging and

trying to game the system.

The gemologist’s “matching” testimony

Steven Jarvis, an independent jewelry appraiser, testified that in March

2011, and again in April, Lana Waldon, an employee of New York Gold and

Jewelry, brought Jarvis several loose diamonds to appraise. Lana did not ask

Jarvis to chart their inclusions, which would have made matching the diamonds

with their respective appraisals much easier. Nevertheless, Jarvis testified that

eight of the appraisals that he prepared matched diamond certifications for eight

gems that had been stolen in the theft.

Attempted burglary of Dillon Gage

After the defense rested, the State called Special Agent M. Aguilar of the

FBI as a rebuttal witness. Aguilar testified that, related to his investigation of the

Karat 22 burglary, he investigated an attempted rooftop burglary at Dillon Gage, a

company in the Dallas area that buys gold and jewelry. The attempted burglary

16
occurred on February 4, 2011, the night before the Karat 22 burglary and the same

day that John bought the ladder from Home Depot. An extension ladder found in a

nearby dumpster after the attempted burglary had the same SKU number as the

ladder John bought that day.

The defensive theories

Kelvin advanced several defensive theories at trial. Kelvin argued that he

and John were legitimate businessmen and that their money came from the

operation of their jewelry stores and John’s crane business. He argued that neither

of them was involved in the Karat 22 theft and that instead, it was either an inside

job or had been committed by Kennedy and two members of the Mexican Mafia.

Kelvin focused on evidence that a duffle bag containing a Spanish-language

newspaper and display boxes belonging to Karat 22 was found several miles south

of Karat 22 the day after the theft.

The jury found Kelvin guilty of engaging in organized criminal activity.

The trial court assessed punishment at life in prison. Kelvin appealed and, at his

request, the trial court appointed him appellate counsel.

The Charge

In his first two issues, Kelvin argues that his conviction should be reversed

because the trial court’s charge improperly permitted conviction without jury

unanimity and erroneously instructed the jury that he could be convicted of

17
engaging in organized criminal activity for conspiring to commit burglary and

money laundering, which was not charged in the indictment. The relevant portions

of the indictment read:

The duly organized Grand Jury of Harris County, Texas, presents in
the District Court of Harris County, Texas that in Harris County,
Texas, KELVIN LYNN O’BRIEN, hereafter styled the Defendant,
heretofore on or about AUGUST 13, 2007 AND CONTINUING
THROUGH APRIL 12, 2013, did then and there unlawfully, with
intent to establish and participate in a combination, and in the profits
of a combination, said combination consisting of John O’Brien,
Kelvin O’Brien, Chalk O’Brien, Derenda O’Brien and Jason
Kennedy, commit the offense of theft in that the Defendant did on or
about February 6, 2011, appropriate, by acquiring and otherwise
exercising control over property, namely, gold, jewelry, gems and
watches owned by C. Patel and Karat 22 Jewelers of the value of over
two hundred thousand dollars with the intent to deprive C. Patel and
Karat 22 Jewelers of the property.

It is further alleged that in Harris County, Texas, Kelvin Lynn
O’Brien, hereafter called the Defendant, heretofore on or about
August 13, 2007 and continuing through April 12, 2013, did then and
there unlawfully, with intent to establish and participate in a
combination, and in the profits of a combination, said combination
consisting of John O’Brien, Kelvin O’Brien, Chalk O’Brien, Derenda
O’Brien and Jason Kennedy, the Defendant did, knowingly transfer,
invest and expend funds which constituted the proceeds of criminal
activity, of the value of at least two hundred thousand dollars by
purchasing a house, by purchasing a pool, by purchasing motor
vehicles, by purchasing a boat, by purchasing a watch, by purchasing
heavy equipment, by moving funds from one bank account to another
and by paying bondsmen’s fees. 1

1
Chalk O’Brien, John and Kelvin’s brother, died before trial and was struck from
the indictment.

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A. Standard of Review

In analyzing a jury-charge issue, our first duty is to decide if error exists.

See Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g);

Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet.

ref’d). Only if we find error do we then consider whether an objection to the

charge was made and analyze for harm. Tottenham, 285 S.W.3d at 30; see also

Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) (“The failure to

preserve jury-charge error is not a bar to appellate review, but rather it establishes

the degree of harm necessary for reversal.”).

“The degree of harm necessary for reversal depends upon whether the error

was preserved.” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).

Error properly preserved by a timely objection to the charge will require reversal

“as long as the error is not harmless.” Almanza, 686 S.W.2d at 171. The Court of

Criminal Appeals has interpreted this to mean that any harm, regardless of degree,

is sufficient to require reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim.

App. 1986). However, when the charging error is not preserved “and the accused

must claim that the error was ‘fundamental,’ he will obtain a reversal only if the

error is so egregious and created such harm that he ‘has not had a fair and impartial

trial’—in short ‘egregious harm.’” Almanza, 686 S.W.2d at 171; see Nava v. State,

415 S.W.3d 289, 298 (Tex. Crim. App. 2013) (egregious harm “is a difficult

19
standard to meet and requires a showing that the defendants were deprived of a fair

and impartial trial.”). Fundamental errors that result in egregious harm are those

which affect “the very basis of the case,” deprive the defendant of a “valuable

right,” or “vitally affect his defensive theory.” Almanza, 686 S.W.2d at 172

(citations and quotations omitted).

When considering whether a defendant suffered harm, the reviewing court

must consider: (1) the entire jury charge; (2) the state of the evidence, including the

contested issues and weight of probative evidence; (3) the argument of counsel;

and (4) any other relevant information revealed by the record of the trial as a

whole. Id. at 171. The reviewing court must conduct this examination of the

record to “illuminate the actual, not just theoretical, harm to the accused.” Id. at

174; see Nava, 415 S.W.3d at 298 (record must disclose “actual rather than

theoretical harm”).

B. Jury Unanimity

In his first issue, Kelvin argues that the charge erroneously permitted the

jury to convict him of engaging in organized criminal activity without unanimous

agreement about which overt act he committed. Specifically, Kelvin objects that

the jury charge presented two enumerated offenses—theft and money laundering—

in the disjunctive, and that the State told the jury during closing argument that the

20
jurors did not have to agree on which enumerated offense the State proved, so long

as all jurors agreed that the State proved one of the two.

1. Applicable Law

Section 71.02(a) of the Texas Penal Code provides that

A person 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 or as a member of a
criminal street gang, the person commits or conspires to commit one
or more of the following:

(1) murder, capital murder, arson, aggravated robbery, robbery,
burglary, theft, aggravated kidnapping, kidnapping, aggravated
assault, aggravated sexual assault, sexual assault, continuous
sexual abuse of young child or children, solicitation of a minor,
forgery, deadly conduct, assault punishable as a Class A
misdemeanor, burglary of a motor vehicle, or unauthorized use
of a motor vehicle;
(2) any gambling offense punishable as a Class A misdemeanor;
(3) promotion of prostitution, aggravated promotion of prostitution,
or compelling prostitution;

(4) unlawful manufacture, transportation, repair, or sale of firearms
or prohibited weapons;

(5) unlawful manufacture, delivery, dispensation, or distribution of
a controlled substance or dangerous drug, or unlawful
possession of a controlled substance or dangerous drug through
forgery, fraud, misrepresentation, or deception;

(5-a) causing the unlawful delivery, dispensation, or distribution of a
controlled substance or dangerous drug in violation of Subtitle
B, Title 3, Occupations Code;
(6) any unlawful wholesale promotion or possession of any obscene
material or obscene device with the intent to wholesale promote
the same;

21
 (7) any offense under Subchapter B, Chapter 43, depicting or
involving conduct by or directed toward a child younger than 18
years of age;
(8) any felony offense under Chapter 32;

(9) any offense under Chapter 36;

(10) any offense under Chapter 34, 35, or 35A;

(11) any offense under Section 37.11(a);

(12) any offense under Chapter 20A;

(13) any offense under Section 37.10;

(14) any offense under Section 38.06, 38.07, 38.09, or 38.11;

(15) any offense under Section 42.10;

(16) any offense under Section 46.06(a)(1) or 46.14;

(17) any offense under Section 20.05 or 20.06; or

(18) any offense classified as a felony under the Tax Code.

TEX. PENAL CODE ANN. § 71.02(a) (West Supp. 2014). Theft and money

laundering are two of these enumerated offenses (sometimes also referred to as

“overt acts”). See id. § 71.02(a)(1) (theft), 71.02(a)(10) (money laundering).

When an indictment alleges several different overt acts, these are alternate

means of committing the offense of engaging in organized criminal activity.

Bogany v. State, 54 S.W.3d 461, 463 (Tex. App.—Houston [1st Dist.] 2001, pet.

ref’d) (where indictment for engaging in organized criminal activity alleges

22
“various overt acts,” these are alternate means of committing the offense of

engaging in organized criminal activity) (citing Garcia v. State, 46 S.W.3d 323,

327 (Tex. App.—Austin 2001, pet. ref’d) (“[T]he various overt acts alleged in the

indictment were, in effect, alternate means of committing the offense [of engaging

in organized criminal activity].”).

“[W]hile jury unanimity is required on the essential elements of the offense,

if the statute in question establishes different modes or means by which the offense

may be committed, unanimity is generally not required on the alternate modes or

means of commission.” Renteria v. State, 199 S.W.3d 499, 508 (Tex. App.—

Houston [1st Dist.] 2006, pet. ref’d) (citing Jefferson v. State, 189 S.W.3d 305, 311

(Tex. Crim. App. 2006)). Thus, “when alternate theories of committing the same

offense are submitted to the jury in the disjunctive, the jury may return a general

verdict if the evidence is sufficient to support a finding under any of the theories

submitted.” Bogany, 54 S.W.3d at 463. Accordingly, when an indictment for

engaging in organized criminal activity alleges the commission of more than one

overt act, jury unanimity is not required with regard to the overt act performed.

Id.; see Renteria, 199 S.W.3d at 508 (indictment alleging engagement in organized

criminal activity by theft of cars and theft of money by selling stolen cars alleged a

single offense with two means, and jury unanimity was not required with respect to

the two types of theft alleged); Renfro v. State, 827 S.W.2d 532, 535–36 (Tex.

23
App.—Houston [1st Dist.] 1992, pet. ref’d) (indictment for engaging in organized

criminal activity that alleged theft of vehicles, theft of heavy equipment, and theft

of money was indictment for single offense, not three separate offenses); see also

Robinson v. State, No. 01-00-00908-CR, 2002 WL 188466, at *13 (Tex. App.—

Houston [1st Dist.] Feb. 7, 2002, no pet.) (when State alleges the defendant

engaged in criminal activity by committing one or more overt acts, “the overt acts

[are] preliminary fact issues to which jury unanimity is not required”).

2. Analysis

We conclude that the trial court did not err in submitting a charge that

permitted the jury to convict Kelvin of engaging in organized criminal activity so

long as each juror believed beyond a reasonable doubt that “with the intent to

establish, maintain, or participate in a combination or in the profits of [the]

combination,” he had committed either theft or money laundering.

Kelvin argues that the so-called “grammar test” in Leza v. State, 351 S.W.3d

344 (Tex. Crim. App. 2011), requires jury unanimity with respect to the

enumerated offenses in the engaging in organized crime statute. Leza teaches:

To discern what a jury must be unanimous about, appellate courts
examine the statute defining the offense to determine whether the
Legislature created multiple, separate offenses, or a single offense
with different methods or means of commission. Jury unanimity is
required on the essential elements of the offense but is generally not
required on the alternate modes or means of commission. Therefore,
it is necessary to identify the essential elements or gravamen of an
offense and the alternate modes of commission, if any. This is

24
 accomplished by diagramming the statutory text according to the rules
of grammar. The essential elements of an offense are, at a minimum:
(1) the subject (the defendant); (2) the main verb; (3) the direct object
if the main verb requires a direct object (i.e., the offense is a result-
oriented crime); the specific occasion, and the requisite mental state.
The means of commission or nonessential unanimity elements are
generally set out in adverbial phrases that describe how the offense
was committed. Such phrases are commonly preceded by the
preposition “by.”

Id. at 356–57 (quoting Pizzo v. State, 235 S.W.3d 711, 714–15 (Tex. Crim. App.

2007)).

As explained above, section 71.02(a) provides:

A person 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 or as a member of a
criminal street gang, the person commits or conspires to commit one
or more of the following [enumerated offenses].

TEX. PENAL CODE ANN. § 71.02(a). Applying the grammar test to section 71.02,

the subject is “[a] person,” the main verb is “commits or conspires to commit,” the

direct object is “one or more of the following” (the following being the enumerated

offenses), and the requisite mental state is “with the intent to establish, maintain, or

participate in a combination or in the profits of a combination.” TEX. PENAL CODE

ANN. § 71.02.

The result of the grammar test as applied to the statute is therefore unclear,

because “one or more of the following” could mean that each enumerated offense

stands independently as a separate offense, or it could mean that engaging in

25
organized criminal activity is a single offense and the enumerated offenses

constitute different manners and means of committing that single offense. Kelvin

argues that applying the grammar test to the language in the indictment, however,

demonstrates that the enumerated offenses do not constitute the manners and

means of committing the offense of engaging in organized criminal activity. The

indictment states that Kelvin committed the enumerated offense of theft “by

acquiring and otherwise exercising control over property . . . owned by” Karat 22

and the enumerated offense of money laundering “by purchasing a house, by

purchasing a pool, by purchasing motor vehicles,” etc. Leza stated that “adverbial

phrases” “commonly preceded by the preposition ‘by,’” generally set out “[t]he

means of commission or nonessential unanimity elements.” Id. at 357. Thus, he

argues, applying the grammar test to the language of the indictment suggests that

the enumerated offenses are essential elements of the crime.

However, Leza warns against “uncritical[ly]” applying the grammar test,

cautioning that while the “grammar test” is “generally useful” and a good “rule of

thumb,” it “will not necessarily work invariably, in every scenario, to accurately

identify legislative intent.” Id. at 357. Leza emphasizes that whether a jury must

be unanimous with respect to a particular fact or issue is “primarily a question of

legislative intent.” Id. (quoting Stuhler v. State, 218 S.W.3d 706, 718 (Tex. Crim.

App. 2007); Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006)). To

26
determine the legislature’s intent, we look to the statutory text because it provides

the best means to determine intent. See Clinton v. State, 354 S.W.3d 795, 800

(Tex. Crim. App. 2011).

White v. State, 208 S.W.3d 467 (Tex. Crim. App. 2006) is instructive here.

There, the Court of Criminal Appeals examined whether the jury needed to be

unanimous in a prosecution for felony murder under Texas Penal Code section

19.02(b)(3), which states:

A person commits an offense if he commits or attempts to commit a
felony, other than manslaughter, and in the course of and in
furtherance of the commission or attempt, or in immediate flight from
the commission or attempt, he commits or attempts to commit an act
clearly dangerous to human life that causes the death of an individual.
TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2014). White argued that the jury

charge violated his right to a unanimous verdict because it authorized the jury to

convict him if it unanimously found that he caused the victim’s death during the

commission of one of two felonies—unauthorized use of a vehicle or evading

arrest—without requiring the jury to unanimously find which felony he was

committing. White, 208 S.W.3d at 468. The Court of Criminal Appeals held that

“[t]he term ‘felony is clearly an element of Section 19.02(b)(3), thus requiring a

jury to unanimously find that the defendant committed a ‘felony.’” Id. However,

the Court of Criminal Appeals held that the jury did not need to unanimously agree

regarding which felony the defendant committed, because the two possibilities

27
simply “constitute[d] the ‘manner or means that make up the ‘felony’ element of

Section 19.02(b)(3).” Id. The Court of Criminal Appeals noted that its conclusion

was bolstered by the fact that “the transitive verb of the portion of Section

19.02(b)(3) at issue here is ‘commits’ followed by the term ‘felony.’” Id.

Similarly, in section 71.02, the transitive verb of the portion of section 71.02

at issue here is “commits” followed by the term “one or more of the following,”

referring to the enumerated offenses. TEX. PENAL CODE ANN. § 71.02(a). If the

specific enumerated offense was an essential element of the offense of engaging in

organized criminal activity, then the use of the term “one or more” would be

meaningless, because the commission of each enumerated offense would constitute

a separate instance of the offense of engaging in organized criminal activity.

Instead, the statute recognizes that the commission of more than one enumerated

offense results in only a single offense of engaging in organized criminal activity.

Moreover, the statute provides that “[i]t is no defense to prosecution under Section

71.02 that:

(1) one or more members of the combination are not criminally
responsible for the object offense;

(2) one or more members of the combination have been acquitted,
have not been prosecuted or convicted, have been convicted of a
different offense, or are immune from prosecution; [or]

(3) a person has been charged with, acquitted, or convicted of any
offense listed in Subsection (a) of Section 71.02[.]

28
TEX. PENAL CODE ANN. § 71.03(a)(1)–(3). Thus, a person may be convicted of

engaging in organized criminal activity even if they have been acquitted of

committing any enumerated offense. Accordingly, we conclude that in this regard,

section 71.02 is analogous to the statute considered by the Court of Criminal

Appeals in White, and that the enumerated offenses set forth the manners and

means by which a person may commit the offense of engaging in organized

criminal activity. See White, 208 S.W.3d at 468.

This conclusion is consistent with this Court’s holdings in Bogany, Renfro,

Renteria, and Robinson. See Renteria, 199 S.W.3d at 508; Robinson, 2002 WL

188466, at *13; Renfro, 827 S.W.2d at 535–36; Bogany, 54 S.W.3d at 463. In all

four of those cases, this Court considered whether section 71.02 required

unanimity with respect to enumerated offenses and concluded that it did not. We

held that an indictment for engaging in organized criminal activity under section

71.02 that alleges more than one overt act alleges alternate means of committing

the crime of engaging in organized criminal activity, and that jury unanimity is not

required with respect to the particular overt act committed. See Renteria, 199

S.W.3d at 508; Robinson, 2002 WL 188466, at *13; Renfro, 827 S.W.2d at 535–

36; Bogany, 54 S.W.3d at 463.

Kelvin does not address Bogany, where three distinct overt acts were

charged—a pretextual arrest by the defendant and his partner, the partner’s sale of

29
a purported package of cocaine taken from the arrestee, and the defendant’s arrest

of another person and sale of a substance that he took from that person and

believed to be cocaine. The Bogany court held that the “various overt acts alleged

were alternate means of committing the offense” of engaging in organized criminal

activity. Bogany, 54 S.W.3d at 463 (citing Garcia, 46 S.W.3d at 327 (“[T]he

various overt acts alleged in the indictment were, in effect, alternate means of

committing the offense [of engaging in organized criminal activity].”)).

Conviction under section 71.02 requires proof of the commission of, or conspiracy

to commit, only one of the enumerated offenses. Id. at 463; see TEX. PENAL CODE

ANN. § 71.02(a). Thus, the Bogany court concluded that where more than one

enumerated offense is alleged to have been committed by a defendant charged with

engaging in organized criminal activity, the commission of these overt acts is a

“preliminary factual issue” about which the jury need not agree, so long as each

juror believes that the defendant engaged in organized criminal activity by

committing one of the alleged acts. 54 S.W.3d at 463.

Kelvin argues that this case is different from Renteria and Renfro because

the overt acts alleged in those cases were merely different types of theft, whereas

here two different types of overt acts were alleged—theft and money laundering.

However, neither Renteria nor Renfro based their analysis on the fact that the

different types of overt acts alleged were varieties of theft.

30
 Renfro was charged with engaging in organized criminal activity by

collaborating with other individuals to commit “theft of vehicles, heavy equipment,

and money.” Renfro, 827 S.W.2d at 535. The indictment contained eight separate

paragraphs alleging eight incidents involving theft of heavy equipment and

vehicles, and Renfro argued that the jury charge, which contained the same eight

paragraphs from the indictment, failed to adequately apprise him of which offense

he had been convicted. See id. We held that “[i]n the indictment, the language

‘theft of vehicles, heavy equipment and money’ did not allege three different

offenses, but simply described the purpose of the combination, i.e., to collaborate

in carrying on the criminal activity of theft targeting heavy equipment, vehicles,

and money.” Id. at 536. Likewise, here, Kelvin was charged with a single offense

of engaging in organized criminal activity, and the two paragraphs of the

indictment alleging theft and money laundering simply described the purpose of

the criminal combination—to steal gold and jewelry from Karat 22 and to launder

the money acquired from selling the stolen gold.

Similarly, Renteria was charged with a single offense of engaging in

organized criminal activity. Renteria, 199 S.W.3d at 500, 507. The indictment

against him alleged in two paragraphs that Renteria participated in stealing 136

vehicles, and in selling the stolen vehicles to 136 innocent purchasers. Id. at 500,

507. Renteria argued that because the charge tracked the two paragraphs in the

31
indictment, he could not be sure whether the jury found him guilty for theft of cars

or theft of money. Id. But we held that “[t]he fact that the State alleged two types

of theft did not convert the offense of organized crime into two separate offenses,”

because these were merely two modes by which Renteria was alleged to have

committed the single offense of engaging in organized criminal activity. Id.

Renteria also considered the sufficiency of the evidence to prove that

Renteria intended to participate in a criminal combination and that the alleged

members of the combination intended to engage in a continuing course of criminal

activity. In connection with that analysis, we stated: “To prove the offense of

engaging in organized criminal activity as a party, the State must also prove that

the defendant had the mental state required for commission of the underlying

offense.” Id. Kelvin argues that this statement “emphasizes the need for a

unanimity instruction” in his case because theft and money laundering have

different mens rea requirements. But in Renteria, the indictment alleged that

Renteria had two different objects of his intent—the stealing of cars, and the

selling of stolen cars in exchange for money—and yet we nevertheless concluded

that jury unanimity was not required with respect to the enumerated offenses

because these were “alternate modes or means of commission” of the crime of

engaging in organized criminal activity. See id. at 508.

32
 Kelvin likewise attempts to distinguish Robinson by arguing that there, the

indictment alleged conspiracy to commit 12 overt acts that included possession of

cocaine, delivery of cocaine, and assisting in the delivery of cocaine. Kelvin

argues that it is inapplicable because here, the indictment alleged actual

commission of overt acts. But the analysis in Robinson pertaining to jury

unanimity regarding overt acts followed our prior opinions and did not turn on the

fact that conspiracy, and not commission, was alleged. See Robinson, 2002 WL

188466, at *13. Robinson held, as did our previous cases, that jury unanimity was

not required with respect to overt acts. Id.

Kelvin also relies on Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005),

to argue that the enumerated offenses of theft and money laundering go to an

essential element of the offense of engaging in organized criminal activity. But

Ngo does not support Kelvin’s argument. In Ngo, the indictment alleged that Ngo

stole a credit card, knowingly received a stolen credit card with intent to use it,

and presented a credit card with intent to obtain a benefit fraudulently, knowing

that it was not his card and he did not have permission to use it. Id. at 745. Texas

Penal Code section 32.31 provides:

33
 (b) A person commits an offense [of credit card abuse] if:

(1) with intent to obtain a benefit fraudulently, he presents or uses a
credit card or debit card with knowledge that:

(A) the card, whether or not expired, has not been issued to him
and is not used with the effective consent of the cardholder;
...
(4) he steals a credit card or debit card or, with knowledge that it
has been stolen, receives a credit card or debit card with intent to
use it, to sell it, or to transfer it to a person other than the issuer or
the cardholder . . . .

TEX. PENAL CODE ANN. § 32.31(b)(1)(A), (4). Thus, the statute at issue in Ngo did

not provide, like the engaging in organized criminal activity statute, that a person

commits credit card abuse if a person engages in “one or more” enumerated

offenses. TEX. PENAL CODE ANN. § 71.02(a). Instead, the credit card abuse

statute defines a number of different actions that each constitute credit card abuse.

See TEX. PENAL CODE ANN. § 32.31. Thus, the Ngo indictment alleged “three

statutorily different criminal acts,” for which unanimity was required. See Ngo,

175 S.W.3d at 745 (“The phrase ‘manner or means’ describes how the defendant

committed the specific statutory criminal act.”) (emphasis in original). In contrast,

here, a single statutory criminal act—engaging in organized criminal activity—is

alleged.

In sum, the enumerated offenses in section 71.02 set forth the manners and

means by which a person commits the offense of engaging in organized criminal

activity. We therefore hold that there was no error in the jury charge because it

34
properly charged engaging in organized criminal activity by committing theft or

money laundering in the disjunctive. See Renteria, 199 S.W.3d at 508; Robinson,

2002 WL 188466, at *13; Renfro, 827 S.W.2d at 535–36; Bogany, 54 S.W.3d at

463; Garcia, 46 S.W.3d at 327.

We overrule Kelvin’s first issue.

C. Discrepancy Between Indictment and Abstract Portion of Jury Charge

In his second issue, Kelvin argues that the jury charge erroneously permitted

the jury to convict him for engaging in organized criminal activity by conspiring to

commit burglary and money laundering despite the fact that he was indicted for

engaging in organized criminal activity by committing theft and money laundering.

1. Applicable Law

As previously discussed, section 71.02 provides:

A person 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 or as a member of a
criminal street gang, the person commits or conspires to commit one
or more of the following [enumerated offenses].
TEX. PENAL CODE ANN. § 71.02(a)(1). “The jury charge may not enlarge the

offense alleged and authorize the jury to convict a defendant on a basis or theory

permitted by the jury charge but not alleged in the indictment.” Head v. State, 299

S.W.3d 414, 439 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).

35
 2. Analysis

The abstract portion of the guilt-stage charge began with the instruction that

a “person commits and offense if, with the intent to establish, maintain, or

participate in a combination or in the profits of a combination, he conspires to

commit burglary or money laundering.” (Emphasis added.) Kelvin argues that,

because he was indicted only for engaging in organized criminal activity by

committing theft or money laundering, this error egregiously harmed him by

permitting the jury to convict him of engaging in organized criminal activity even

if they believed that he did not commit theft or money laundering, so long as they

believed that he conspired to commit burglary or money laundering.

The State concedes that it was error to submit the complained-of language,

but argues that Kelvin was not egregiously harmed. When, as here, the defendant

makes no objection to the complained-of error at trial, he must show that he was

egregiously harmed by the error such that it deprived him of a fair and impartial

trial. See Almanza, 686 S.W.2d at 171 (error creating egregious harm goes to the

very basis of case, deprives appellant of valuable right, or vitally affects a

defensive theory). To determine whether Kelvin was egregiously harmed, we

examine the entire jury charge, the state of the evidence, including the contested

issues and weight of the probative evidence, the arguments of counsel, and any

other relevant information revealed by the trial record as a whole. See id.

36
The jury charge

Considering the charge in its entirety, the abstract portion of the guilt-stage

charge began with the instruction 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, he conspires to commit burglary or money laundering.” This

instruction misstates the offense for which Kelvin was indicted—engaging in

organized criminal activity by the commission of theft or money laundering.

However, this portion of the abstract was not incorporated into the charge’s

application paragraph. The application paragraph accurately tracked the

indictment, which alleged engaging in organized criminal activity by the

commission of theft and money laundering, and instructed the jury:

Now, if you find from the evidence beyond a reasonable doubt
that in Harris County, Texas, the defendant, KELVIN LYNN
O’BRIEN, heretofore on or about August 13, 2007 and continuing
through April 12, 2013, did then and there unlawfully, with intent to
establish, maintain or participate in a combination or in the profits of a
combination, said combination consisting of Kelvin O’Brien and at
least two of the following: John O’Brien and/or Derenda O’Brien
and/or Jason Kennedy, commit the offense of theft in that the
defendant on or about February 6, 2011 did unlawfully appropriate, by
acquiring or otherwise exercising control over property, namely, gold,
jewelry, gems and watches owned by C. Patel or Karat 22 Jewelers of
the value of over two hundred thousand dollars with the intent to
deprive C. Patel or Karat 22 Jewelers of the property then you will
find the defendant guilty as charged in the indictment; or

If you find from the evidence beyond a reasonable doubt that in
Harris County, Texas, the defendant, KELVIN LYNN O’BRIEN,
heretofore on or about August 13, 2007 and continuing through April

37
 12, 2013, did then and there unlawfully, with intent to establish,
maintain or participate in a combination or in the profits of a
combination, said combination consisting of Kelvin O’Brien and at
least two of the following: John O’Brien and/or Derenda O’Brien
and/or Jason Kennedy, commit the offense of money laundering,
namely in that he heretofore on or about August 13, 2007 and
continuing through April 12, 2013, did then and there unlawfully,
knowingly transfer, invest or expend funds which constituted the
proceeds of criminal activity, of the value of at least two hundred
thousand dollars by purchasing a house, by purchasing a pool, by
purchasing motor vehicles, by purchasing a boat, by purchasing a
watch, by purchasing heavy equipment, by moving funds from one
bank account to another or by paying bondsmen’s fees, then you will
find the defendant guilty as charged in the indictment.
“It is the application paragraph of the charge, not the abstract portion, that

authorizes a conviction.” Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim.

App. 2012) (“An abstract charge on a theory of law that is not applied to the facts

does not authorize the jury to convict upon that theory.”). Because the application

paragraph tracked the indictment, it “restricted the jury’s consideration to only

those allegations contained in the [indictment].” Id. at 467 (jury is presumed to

have understood and followed court’s charge, absent evidence to the contrary).

Nothing in the record suggests that the jury did not properly apply the

application paragraph. Therefore, the charge itself does not point toward finding

egregious harm. Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999)

(“Where the application paragraph correctly instructs the jury, an error in the

abstract instruction is not egregious.”); see also Crenshaw, 378 S.W.3d at 464–66

(“Generally, reversible error occurs in the giving of an abstract instruction only

38
when the instruction is an incorrect or misleading statement of a law that the jury

must understand in order to implement the commands of the application

paragraph.”).

The evidence

The evidence throughout the trial focused on whether Kelvin actually

committed the Karat 22 theft and laundered stolen money from that theft.

Kennedy testified that he committed the Karat 22 theft with Kelvin and John,

describing how the men entered through the roof, disarmed the alarm, cut through

the vault, emptied it, and carried bags and bins full of jewelry to Kennedy’s truck.

Woods testified that Kelvin told him that he had committed the Karat 22 theft by

entering the vault and that Kennedy’s truck led to them being caught. The jury

saw several surveillance videos showing some of the events described by Kennedy.

The State also introduced phone records consistent with Kennedy’s testimony

showing that John called Derenda on the way to Dallas from Karat 22 and alarm

records showing that their store’s alarm was disarmed shortly thereafter. The jury

heard recordings of jailhouse phone calls between John and Kelvin in which the

two men mention that Kennedy was “snitching” on them and that law enforcement

found diamond appraisals. The diamond appraisals themselves—apart from

Jarvis’s testimony—revealed strikingly similar specifications to Karat 22’s

certifications of the diamonds that were stolen by the thieves. The evidence

39
showed that Kelvin received about $1.2 million from the gold sold shortly after the

Karat 22 theft, and he used it to buy a number of things with cash, including a

home and cars.

The evidence thus strongly connects Kelvin with the Karat 22 theft and the

subsequent money laundering. Moreover, the evidence was all directed towards

demonstrating that Kelvin, as part of the criminal combination, actually committed

the Karat 22 theft and laundered the stolen money.

Arguments of counsel

Neither party’s counsel focused the jury’s attention on the erroneous

statement. The State did not argue that Kelvin should be convicted based on

conspiracy to commit burglary or money laundering. Instead, the State argued that

Kelvin should be convicted because, in furtherance of the criminal combination, he

committed the Karat 22 theft and laundered the stolen money, which is consistent

with the indictment and the application paragraph of the charge.

In sum, nothing in our review of the record rebuts the presumption that the

jury understood and followed the application paragraph or suggests that the jury

was confused or misled by the error in the abstract. See Crenshaw, 378 S.W.3d at

467. We hold, therefore, that Kelvin was not egregiously harmed by the inclusion

of the erroneous language in the abstract. See Medina, 7 S.W.3d at 640 (“[w]here

40
the application paragraph correctly instructs the jury, an error in the abstract

instruction is not egregious”).

We overrule Kelvin’s second issue.

Extraneous Offenses

In his third issue, Kelvin contends that the trial court erred in admitting

evidence of three extraneous offenses—burglaries at Nazar’s and an unnamed

Austin store, and the attempted burglary at Dillon Gage. The State contends that

Kelvin did not preserve error regarding the admission of this evidence. But even if

this issue was preserved and we were to conclude that the trial court erred in

admitting evidence of these extraneous burglaries, any error in the admission of

such evidence would be harmless in light of the evidence regarding the Cox’s

Jewelry burglary, about which Kelvin does not complain on appeal. See TEX. R.

APP. P. 44.2(b) (non-constitutional error must be disregarded unless it affects a

substantial right).

The testimony regarding Nazar’s, the unnamed Austin store, and Dillon

Gage was minimal. Kennedy testified that he helped John and Kelvin burglarize

jewelry stores to steal jewelry “about four times,” including Nazar’s and an

unnamed Austin store. Agent Aguilar testified that he investigated a February 4,

2011 attempted rooftop burglary at Dillon Gage, and found an extension ladder left

41
behind after the attempted burglary in a nearby dumpster that had the same SKU

number as the ladder John bought at Home Depot earlier that day.

In contrast, a significant amount of testimony was adduced regarding the

burglary and theft from Cox’s Jewelry. Daniel Cox, its owner, testified that his

store was burglarized in August 2007. Thieves cut through his steel and concrete

safe with a grinding disk and stole $225,000 worth of jewelry. The thieves gained

access to the store by crawling through the adjoining store’s air conditioning vent

into the attic and disarming the alarm system. Cox was later able to identify four

diamonds that were stolen that night that had been sold to a man named Mike

Follett in August 2007. Martin Adams, a former employee of Follett, testified that

Kelvin sold diamonds to Follett that same month.

Officer A. Householder of the Mansfield Police Department testified that

law enforcement arrested Chalk O’Brien, Kelvin and John’s brother, sitting in a car

facing Cox’s Jewelry around 3:00 a.m. on the night of the burglary. Householder

eventually determined that Chalk was acting as a lookout and suspected that John

and Kelvin were also involved in the burglary. Householder talked to Follett

about the diamonds that Kelvin sold to Follett in August 2007, and brought Cox to

Follett’s store, where Cox identified the diamonds as belonging to Cox’s Jewelry.

Householder obtained and executed a search warrant to search Kelvin’s home,

42
where he found diamonds laying on the floor and other evidence that jewelry had

been dismantled. He also found gloves, cut-off wheels, and a magnetic drill.

The evidence regarding the complained-of extraneous offenses was

minimal—a few lines or pages of testimony at most—compared to the evidence

regarding the Cox’s burglary, which involved several witnesses and significant

amounts of testimony regarding the manner in which the burglary was conducted,

which was similar to the Karat 22 burglary, and Kelvin’s involvement. See

Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (“Inadmissible

evidence can be rendered harmless if other evidence at trial is admitted without

objection and it proves the same fact that the inadmissible evidence sought to

prove.”). The evidence of the other burglaries was essentially duplicative, albeit

far less detailed, of the Cox’s burglary evidence. Accordingly, we hold that even if

the trial court erred in admitting evidence of the complained-of extraneous

offenses, any error in its admission was harmless. See id.

We overrule Kelvin’s third issue.

Jarvis’s Testimony

In his fourth issue, Kelvin argues that the trial court erred by allowing Jarvis

to testify that he had a “high degree of certainty” that the diamond appraisals he

prepared for Kelvin matched Karat 22’s certifications of stolen diamonds because

this testimony did not meet the standard for expert testimony set forth in Kelly v.

43
State, 824 S.W.2d 568 (Tex. Crim. App. 1992), and Nenno v. State, 970 S.W.2d

549 (Tex. Crim. App. 1998), overruled on other grounds, State v. Terrazas, 4

S.W.3d 720, 727 (Tex. Crim. App. 1999).

A. Standard of Review and Applicable Law

“A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise if the

expert’s scientific, technical, or other specialized knowledge will help the trier of

fact to understand the evidence or to determine a fact in issue.” TEX. R. EVID. 702.

Before admitting expert testimony, a trial court must determine that (1) the witness

qualifies as an expert by reason of his knowledge, skill, experience, training, or

education; (2) the subject matter of the testimony is an appropriate one for expert

testimony; and (3) admitting the expert testimony will actually assist the fact-finder

in deciding the case. Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App.

2006). Thus, the trial court must determine that the expert is qualified to testify

and the proffered testimony is reliable and relevant. Vela v. State, 209 S.W.3d

128, 131 (Tex. Crim. App. 2006). The Court of Criminal Appeals set forth the test

for assessing the reliability of expert testimony concerning “hard sciences” in Kelly

v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) and “soft sciences” (opinions

based on experience or training as opposed to the scientific method) in Nenno v.

State, 970 S.W.2d 549 (Tex. Crim. App. 1998), overruled on other grounds, State

44
v. Terrazas, 4 S.W.3d 720, 727 (Tex. Crim. App. 1999). See Petricolet v. State,

442 S.W.3d 643, 651 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).

But even if the trial court errs in admitting expert testimony, this error is

non-constitutional and requires reversal only if it affects the substantial rights of

the accused. See TEX. R. APP. P. 44.2(b) (non-constitutional error must be

disregarded unless it affects a substantial right); Petricolet, 442 S.W.3d at 653. “A

substantial right is affected when the error had a substantial and injurious effect or

influence in determining the jury’s verdict.” Petricolet, 442 S.W.3d at 653 (citing

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). “We will not

overturn a criminal conviction for non-constitutional error if, after examining the

record as a whole, we have fair assurance that the error did not influence the jury,

or had but a slight effect.” Id. at 654 (Barshaw v. State, 342 S.W.3d 91, 93 (Tex.

Crim. App. 2011)).

In order to ascertain the effect the wrongfully admitted evidence may have

had on the verdict, we review the entire record. Barshaw, 342 S.W.3d at 93.

Factors that we may consider include (1) the strength of the evidence of the

appellant’s guilt; (2) whether the jury heard the same or substantially similar

admissible evidence through another source; (3) the strength or weakness of an

expert’s conclusions, including whether the expert’s opinion was effectively

refuted; and (4) whether the State directed the jury’s attention to the expert’s

45
testimony during argument. Petricolet, 442 S.W.3d at 654 (citing Coble v. State,

330 S.W.3d 253, 286–88 (Tex. Crim. App. 2010)).

B. The Testimony

Jarvis testified that he had an associate’s degree in jewelry store

management and a Graduate Gemologist degree from the Gemological Institute of

America. He worked in the jewelry industry for 25 years before obtaining his GIA

degree. To earn his GIA degree, Jarvis took gemology courses, completed work

study and lab programs, and took an extensive exam. He then opened his own

appraisal business in 2004.

Jarvis testified that gem appraisers look at the “four C’s”—cut, color, clarity,

and carat weight. He explained the process for appraising loose diamonds, which

includes documenting the attributes, grading the color, clarity, proportions, and

finish, and determining the value. Jarvis uses several instruments when appraising

diamonds, including a gem scale to determine weight, a gem scope to determine

clarity, and a micrometer for millimeter gauge to measure diameter and depth.

Jarvis explained that the gem scale is extremely sensitive—it is contained in a glass

box because even a breeze can affect the weight by “half a point or .005 carats.”

He explained that there are different qualities of scales and different levels of

calibration and accuracy, depending on the price of the scale, and that the quality

of the scale varies widely by appraiser and by how often and precisely it is

46
calibrated. He testified that the same is true for micrometers. Jarvis also explained

that to determine color, he puts a stone up against a diamond light and also uses a

colorimeter. He also sometimes consults his assistant gemologist for a second

opinion.

Jarvis noted that assessments of clarity and color, as well as proportions and

finish, may vary from appraiser to appraiser because they involve judgment calls.

Jarvis testified that he would be surprised if two GIA-certified appraisers produced

identical appraisals, because there are judgment calls that go along with the

measurements conducted. Jarvis also testified that there are other entities, such as

the European Gemological Laboratory (“EGL”), that issue appraisals and diamond

certifications. According to Jarvis, the GIA is the most conservative and accurate

in grading, and EGL is more liberal in its grading and not as accurate. Carat

weight and measurements are typically fairly close in a comparison of a GIA and

an EGL appraisal, but the clarity could be off a grade or two, and the color could

be off by two to three or as much as five grades.

Jarvis testified that he had conducted diamond appraisals for Kelvin’s store,

New York Gold and Jewelry in the past. In March 2011, and again in April, Lana

Waldon, an employee of New York Gold and Jewelry, brought Jarvis several loose

diamonds to appraise. All of the diamonds weighed over one carat each. Lana did

47
not ask Jarvis to chart them for inclusions, which would have made the diamonds

much easier to identify in the future.

Karat 22 had about 15 certifications for diamonds that it had in inventory at

the time of the theft. Jarvis compared the dimensions on one of the appraisals that

he prepared for New York Gold and Jewelry to a Karat 22 EGL certification for

one of its diamonds and testified that the measurements differed by only

hundredths of a millimeter. He also testified that he evaluated the proportions of

the diamond as “very good” and that the EGL certification had measurements

consistent with a very good proportion diamond. Both documents listed the

diamond’s finish as very good. The EGL certification graded the stone as a K, and

Jarvis’s appraisal graded the stone as an M. Jarvis testified that it would not be

unusual for a GIA appraisal to grade the same stone two grades lower in color than

an EGL certification.

The State then asked Jarvis whether he could say that the appraisal and the

certification were of the same diamond. Kelvin objected that Jarvis was not

qualified to testify regarding appraisal matching and that appraisal matching was

not a recognized methodology. The trial court held a hearing outside the presence

of the jury to determine whether Jarvis’s opinion that he had a “high degree of

certainty” that eight of the appraisals were of the same stone as eight of the Karat

22 certifications was sufficiently reliable. During the hearing, Jarvis testified,

48
among other things, that he does not regularly compare appraisals and that it is not

a regular practice in gemology to compare appraisals for identification purposes.

Jarvis also testified that he was not specifically trained to compare appraisals, that

comparison of appraisals is not something that is taught in the field of gemology,

and that gemology does not have set standards for the level of certainty required

when comparing appraisals. Following the hearing, the trial court determined that

Jarvis was qualified as an expert to state his opinion that he had a “high degree of

certainty” that the appraisal and the certification were of the same stone.

Jarvis testified, in front of the jury, that he had a high degree of certainty that

the appraisal and the certification were of the same stone, but that he was not 100%

certain that they were the same. He testified that he followed similar appraisal

procedures with respect to seven other diamonds brought to him from New York

Gold and Jewelry in March and April 2011, and after comparing those appraisals

to seven Karat 22 certifications, testified that he had a high degree of certainty that

each of these seven matched a certification obtained from Karat 22.

On cross-examination, Jarvis acknowledged that New York Gold and

Jewelry had him appraise 14 stones in March and April, but that the State only

asked him to compare eight of the appraisals he prepared to Karat 22 certifications.

He also admitted that there were slight differences in measurements in each of the

appraisals that he had concluded were likely matches, and that the color, clarity,

49
and weight differed slightly between many of the compared appraisals. He

acknowledged that there were likely other diamonds that existed that closely

matched the specifications in the Karat 22 certifications. He admitted that one

certification indicated that diamond had a chip, and that the matching appraisal did

not indicate a chip, even though he would have noted a chip had he seen it. He

also admitted another certification showed an internally flawless diamond, but that

he had measured the “matching” diamond at a lower clarity. He stated that this

was the comparison that he was “most concerned about” and that it might not be

the same stone, even though he testified that he had a high degree of certainty that

it matched. He also admitted that one of the Karat 22 certifications said the

diamond had a blue fluorescence, and he had marked the “matched” diamond as

having yellow fluorescence, but testified that it was likely due to differences in

equipment. Jarvis acknowledged that the best way to compare the diamonds would

be to actually look at the diamonds themselves.

C. Analysis

1. Did the trial court err by allowing Jarvis to testify that he had a
“high degree of certainty” that the appraisals and the
certifications matched?
We conclude that the trial court erred by allowing Jarvis to testify that he

had a “high degree of certainty” that the appraisals and the certifications matched,

or were of the same diamonds, because this opinion was not sufficiently reliable.

50
Whether analyzed under Kelly or Nenno, “reliability should be evaluated by

reference to the standards applicable to the particular professional field in

question.” 2 Petricolet, 442 S.W.3d at 653 (quoting Coble, 330 S.W.3d at 274).

Jarvis testified that he does not regularly compare appraisals, that it is not a regular

practice in gemology to compare appraisals for identification purposes, that he was

not specifically trained to compare appraisals, that comparison of appraisals is not

something that is taught in the field of gemology, and that gemology does not have

set standards for the level of certainty required when comparing appraisals. Thus,

by Jarvis’s own admission, there are no standards within gemology that would

permit a determination regarding whether his testimony was reliable. “When a

witness’s methodology and conclusions cannot be validated or have been

‘otherwise inadequately tested,’ the proposed testimony is characterized as ‘junk

science.’” Id. (quoting Coble, 330 S.W.3d at 274). Here, the State presented no

evidence validating Jarvis’s comparison methodology and conclusions; to the

contrary, the evidence shows that the comparison methodology could not be

independently validated. Accordingly, we hold that the trial court erred in

admitting Jarvis’s matching testimony. See id. (trial court erred in admitting expert

2
The State argues in the alternative that Jarvis’s matching testimony was merely
opinion testimony by a lay witness because Jarvis simply told the jury things that
they could see for themselves in the appraisal and certification documents. See
TEX. R. EVID. 701. But Jarvis did not simply compare the measurements in the
appraisals and certifications—he also opined regarding the meaning of those
measurements.

51
testimony where State presented no evidence validating expert’s method and

conclusions).

2. Was Kelvin harmed by the admission of the matching testimony?
We conclude that, although the trial court erred in allowing Jarvis to testify

that his appraisals matched Karat 22’s certifications, the admission of this

testimony “did not have a substantial and injurious effect or influence in

determining the jury’s verdict.” See Petricolet, 442 S.W.3d at 653.

The evidence of Kelvin’s involvement in the Karat 22 theft and money

laundering was substantial. It included, among other things, Kennedy’s testimony,

the surveillance videos, the phone records showing that John called Derenda at the

time Kennedy testified that he did, and the alarm records showing that the store’s

alarm was deactivated as Kennedy testified. It also included recordings of phone

calls between John and Kelvin in which they discussed the theft and that a third

man was “snitching” on them, as well as Woods’s testimony that Kelvin told him

that he committed the Karat 22 theft. The State also traced the flow of funds from

Millennium to Kelvin and showed how he used the money to purchase a house and

cars, among other things.

Kelvin argues that Jarvis’s testimony affected his substantial rights because

it “was the only source of matching and linking the diamonds” to him. But this

overlooks the recorded phone call between John and Kelvin in which Kelvin said

52
“I guess maybe they found some diamond appraisals.” Thus, Kelvin’s own

statement suggested to the jury that the diamond appraisals were some proof

connecting Kelvin to the Karat 22 theft.

Kelvin argues that Jarvis’s opinion was “very strong,” because he testified

that the diamonds were a match with a “high degree of certainty.” But Kelvin

adduced a number of concessions that weakened Jarvis’s testimony in the eyes of

the jury. For example, Jarvis acknowledged that he appraised 14 stones for New

York Gold and Jewelry shortly after the theft, but that he was only asked to review

eight of the appraisals. He also admitted that it would be possible to find other

diamonds matching the specifications in the Karat 22 certifications. Jarvis

admitted that one certification indicated that the diamond had a chip, and that the

purportedly matching appraisal did not, even though he would have noticed a chip

had he seen it. He also admitted that another certification showed an internally

flawless diamond, but that he had measured the purportedly matching diamond as a

VS1. He admitted that he still said that he had a “high degree of certainty” that

this stone was a match even though it might not be the same stone. Jarvis

acknowledged that the best way to compare the diamonds would be to actually

look at the diamonds themselves, and admitted to numerous other discrepancies

between the appraisals and the certifications.

53
 In closing, the State told the jury that the matching diamonds was one of the

things that connected Kelvin to the Karat 22 theft. However, the State did not

discuss Jarvis’s testimony extensively and mentioned the matching as only one of a

number of things that tended to connect Kelvin to the theft. The matching of the

diamonds was not a central theme of the State’s closing.

In sum, Jarvis’s “matching” testimony was just one piece of a substantial

amount of evidence connecting Kelvin to the Karat 22 theft, evidence was adduced

suggesting that Kelvin himself believed the diamond appraisals connected him to

the Karat 22 theft, Jarvis’s testimony was effectively refuted on cross-examination,

and the State did not rely heavily upon the matching testimony in its jury

argument. After considering the relevant factors in light of the entire record, we

conclude that the admission of Jarvis’s “matching” testimony did not have a

“substantial and injurious effect or influence in determining the jury’s verdict.”

Coble, 330 S.W.3d at 268; see Barshaw, 342 S.W.3d at 93. Accordingly, we hold

that any error in the admission of Jarvis’s “matching” testimony does not warrant

reversal. See TEX. R. APP. P. 44.2(b); Petricolet, 442 S.W.3d at 653.

We overrule Kelvin’s fourth issue.

Self-Representation

In his fifth issue, Kelvin contends that the trial court abused its discretion in

granting his request to represent himself because (1) his assertion of the right to

54
self-representation was equivocal and contingent upon being granted a

continuance, and (2) the request was made mid-trial.

A. Standard of Review

“We review the factual issue of whether a defendant has clearly and

unequivocally invoked the right to self-representation for an abuse of discretion.”

Duren v. State, 01-13-00103-CR, 2014 WL 5500482, at *4 (Tex. App.—Houston

[1st Dist.] Oct. 30, 2014, pet. ref’d) (mem. op.; not designated for publication)

(citing DeGroot v. State, 24 S.W.3d 456, 457–58 (Tex. App.—Corpus Christi

2000, no pet.). In conducting our review, we view the evidence in the light most

favorable to the trial court’s ruling. Id.

B. Applicable Law

The Sixth Amendment of the federal constitution guarantees both the right to

counsel and the corresponding right to self-representation. Faretta v. California,

422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975); Hathorn v. State, 848 S.W.2d 101,

122–23 (Tex. Crim. App. 1992); TEX. CODE CRIM. PROC. ANN. art. 1.05 (West

2005) (recognizing right of accused to be heard by himself, through counsel, or

both); Carroll v. State, 176 S.W.3d 249, 256 (Tex. App.—Houston [1st Dist.]

2004, pet. ref’d). Once a defendant unequivocally asserts the right to self-

representation, the trial court must admonish the defendant about the dangers and

disadvantages of waiving the right to counsel and proceeding pro se. Blankenship

55
v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984) (citing Faretta, 422 U.S. at

835–36, 95 S. Ct. at 2541). “[T]he right to self-representation does not attach until

it has been clearly and unequivocably asserted.” Williams v. State, 252 S.W.3d

353, 356 (Tex. Crim. App. 2008) (quoting Funderburg v. State, 717 S.W.2d 637,

642 (Tex. Crim. App. 1986)); see also Luken v. State, No. 01-98-00602-CR, 1999

WL 442181, at *1 (Tex. App.—Houston [1st Dist.] July 1, 1999, no pet.) (“An

accused should be allowed to represent himself so long as the assertion of his right

to self-representation is unconditional and is asserted without delay or disruption to

the proceedings.”).

A defendant must make a decision to waive counsel competently,

voluntarily, knowingly and intelligently. Godinez v. Moran, 509 U.S. 389, 400,

113 S. Ct. 2680, 2687 (1993); Faretta, 422 U.S. at 835, 95 S. Ct. at 2541. A

decision to waive counsel and represent oneself is made voluntarily, knowingly

and intelligently if it is made with a full understanding of the right to counsel,

which is being abandoned, as well as the dangers and disadvantages of self-

representation. Moore v. State, 999 S.W.2d 385, 396 (Tex. Crim. App. 1999). The

trial court need not follow formulaic questioning or a particular script in

ascertaining whether the defendant’s waiver is competent, voluntary, knowing, and

intelligent, but if it is not otherwise apparent from the record, the trial court should

inquire regarding the defendant’s background, age, experience, and education. See

56
Burgess v. State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991); see also Johnson v.

State, 760 S.W.2d 277, 278 (Tex. Crim. App. 1988). The trial court should also

inform the defendant that “there are technical rules of evidence and procedure, and

he will not be granted any special consideration solely because he asserted his pro

se rights.” Johnson, 760 S.W.2d at 279. “To assess whether a waiver is effective,

courts consider the totality of the circumstances.” Williams, 252 S.W.3d at 356.

C. Analysis

Kelvin does not contend that the trial court failed to properly admonish him

regarding the dangers and disadvantages of self-representation. Instead, Kelvin

argues that the trial court abused its discretion because (1) his request to represent

himself was not unequivocal and (2) he made the request mid-trial.

1. Kelvin’s request to represent himself was unequivocal.

Kelvin argues that his request to represent himself was “conditioned upon a

request for a continuance to allow him time to adequately research his case.” He

argues that the trial court abused its discretion in permitting him to represent

himself because his request was not unequivocal.

We conclude that the trial court did not abuse its discretion in finding that

Kelvin had unequivocally invoked his right to self-representation. A week into

trial, Kelvin asked the trial court to allow him to represent himself. The trial court

recessed trial to permit Kelvin to discuss his request with his appointed trial

57
counsel. The trial court then admonished Kelvin regarding the dangers and

disadvantages of self-representation and inquired into Kelvin’s background, age,

experience, and education. The trial court repeatedly confirmed that Kelvin

understood that he would be held to the same standard as a lawyer and would be at

a disadvantage because he did not have legal training. Then the trial court told

him, “[W]e are in the middle of a lengthy matter and this case is going to proceed.

You understand that?”

Kelvin: I understand.

The Court: It’s 3:15 in the afternoon. Is there anything any additional
time would help you in making this decision, or do you need any
further time to reflect on this decision—

Kelvin: No, sir.

The Court: —before we bring the jury out and go forward?

Kelvin: Ready to go forward.

The Court: All right. And just for the record, I’ve given you about a
half hour or so, maybe a little bit more, to talk with Mr. Still and Mr.
Bunin and to think about this decision; is that correct?

Kelvin: Yes, sir.

The Court: And you’re not asking for any additional time?

Kelvin: No, sir.

The trial court then reviewed a document labeled “Faretta Warnings, Waiver of

Court-Appointed Counsel, Court Findings and Order Allowing Defendant to

58
Proceed Pro Se” with Kelvin, admonished him further, and confirmed that Kelvin

understood all of the warnings and the written waiver. After reviewing this

document and telling Kelvin that he could sign the document if he was sure that he

wanted to represent himself, the trial court told Kelvin:

Once again, Mr. O’Brien, if you want even for the rest of the day, to
have a chance to think about this, even over the evening, I’ll give you
additional time to reconsider this decision. Do you wish to have that
additional time?

Kelvin: No, sir.

Kelvin then signed the written waiver of his right to counsel.

The next morning, trial reconvened, and the trial court confirmed once more

with Kelvin that he wished to represent himself.

The Court: Mr. O’Brien, I wanted to be clear for the record. Yesterday
we did take a break during the course of the trial. I gave you time to
visit with Mr. Still and Mr. Bunin with regard to your—I know we
took probably a 45-minute break or so with regard to that. I know for
some period of time you had a chance to visit with Mr. Still and Mr.
Bunin. Is it still your decision today to continue to represent yourself?

O’Brien: Yes, sir.

The Court: All right.

Kelvin told the trial court that he wanted to discuss several matters. He first

indicated that he wanted to subpoena certain records, and the trial court told him to

file any subpoena requests with the clerk. Kelvin then raised an issue regarding the

Cox’s burglary.

59
 Kelvin: Also, Your Honor, I’d like to request, beings as I was charged
with the Cox burglary on short notice and—basically, I feel like I was
just charged with this crime yesterday, I need time to work on this
case. I need discovery. I’d like to request full discovery, exculpatory
evidence, everything related to this case.

The Court: Everything related to that that’s in the possession of the
DA’s Office with regard to that, we’ll make sure that anything that is
in their possession is made available to you.

Kelvin: Okay.

The Court: What in particular are you asking for?

Kelvin: Exculpatory evidence, police reports.

The Court: They’re under a continuing order to provide any
exculpatory evidence.

Kelvin: Okay. And you may object to this, but I feel like I need time
to research the case. I was just charged with it yesterday—

The Court: No.

Kelvin: —and I’m facing 20 years in—

The Court: The case was in the indictment. That allegation was
actually contained in the indictment, which at your attorney’s request
and your request, I actually severed out of the indictment in your
charge. There was notice of it that it would be potentially used against
you and the State would attempt to use that as an extraneous matter.

Kelvin argues that this exchange shows that his “invocation of his right to

represent himself . . . was conditioned upon a request for a continuance to allow

him time to adequately research his case,” and that the trial court thus “had a duty

to deny [his] request to represent himself once it became apparent that it was

60
conditional.” Kelvin relies upon Scarbrough v. State, 777 S.W.2d 83 (Tex. Crim.

App. 1989) to argue that, where a defendant makes his request to represent himself

conditional upon being granted additional access to legal resources, a trial court

concerned about delay should deny the request and then ascertain whether the

defendant “persists in his request for self representation” despite the denial. Id. at

93.

But Kelvin’s characterization of the events surrounding his request to

represent himself is incorrect. Kelvin’s request to represent himself was not

conditioned upon being granted extra time. Kelvin requested a continuance to

conduct research and discovery regarding the Cox’s burglary after he had waived

his right to counsel and repeatedly reaffirmed that he wanted represent himself.

Moreover, in context, it is clear that Kelvin was asking for more time to research

issues related to the Cox’s burglary—an extraneous offense, the admission of

which is unchallenged on appeal—and not the primary charge. The trial court

correctly noted that this offense was included in Kelvin’s indictment. In addition,

before the trial court permitted Kelvin to represent himself, the trial court

repeatedly admonished Kelvin that he was going to be at a disadvantage if he

represented himself and told him that invoking his right to self-representation

would not be a basis for delaying the trial because “we are in the middle of a

lengthy matter and this case is going to proceed.”

61
 Viewing the evidence in the light most favorable to the trial court’s ruling,

as we must, we hold that the trial court did not abuse its discretion in determining

that Kelvin unequivocally invoked his right to self-representation. See Duren,

2014 WL 5500482, at *4 (court reviews factual issue of whether defendant has

unequivocally invoked the right to self-representation for an abuse of discretion

viewing evidence in light most favorable to trial court’s ruling).

2. The trial court did not abuse its discretion by granting Kelvin’s
request mid-trial.
Kelvin argues that the trial court abused its discretion in granting his request

to represent himself because trial had already begun. He argues that the trial court

erred because “[o]n the seventh day of a complex first-degree felony trial, [he]

should not have been permitted to represent himself.” Kelvin notes, correctly, that

to be considered timely, the right to self-representation must be asserted before the

jury is empaneled. See, e.g., McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim.

App. 1997). Kelvin acknowledges that the trial court nevertheless has discretion to

allow a defendant to represent himself after trial has begun. See Hernandez v.

State, No. 01-07-00739-CR, 2008 WL 3522256, at *3 (Tex. App.—Houston [1st

Dist.] Aug. 14, 2008, no pet.). However, he relies upon Blankenship v. State, 673

S.W.2d 578 (Tex. Crim. App. 1984), to argue that the trial court abused its

discretion in permitting him to invoke his right to self-representation mid-trial. In

Blankenship, the Court of Criminal Appeals stated

62
 This Court requires no formulaic questioning to establish a knowing
and intelligent waiver nor will it author a script for courtroom
recitation by trial judges faced with this dilemma. On the other hand,
Faretta does not authorize trial judges across this state to sit idly by
doling out enough legal rope for defendants to participate in
impending courtroom suicide; rather, judges must take an active role
in assessing the defendant’s waiver of counsel.

Id. at 583. Kelvin appears to be arguing that the trial court “dol[ed] out enough

legal rope” to permit him to commit “courtroom suicide” by permitting him to

invoke the right to self-representation mid-trial. Id.

But Blankenship does not stand for the proposition that a trial court that

permits a defendant to represent himself mid-trial necessarily abuses its discretion.

Instead, Blankenship merely emphasizes that the trial court should actively

determine whether the defendant’s waiver is knowing and intelligent. Kelvin does

not argue that the trial court did not properly admonish him or actively seek to

determine that his waiver was knowing and intelligent. As discussed above, the

record reflects that the trial court admonished Kelvin and repeatedly confirmed that

Kelvin understood the consequences of invoking the right to self-representation

mid-trial, including that he would not be entitled to claim ineffective assistance

from that point on and might waive objections and points of error that his lawyer

would otherwise preserve. And Blankenship recognizes that the decision to invoke

the right to self-representation may be unwise, but that is not grounds for denying

the request.

63
 [D]efendants who insist that they neither need nor want assistance in
rebutting the prosecution’s claim have made an unsagacious choice.
It is undeniable that in most criminal prosecutions defendants could
better defend with counsel's guidance than by their own unskilled
efforts. But the right to defend is personal. It is the defendant, not his
lawyer or the State, who will bear the personal consequences of a
conviction. It is the defendant, therefore, who must be free personally
to decide whether in his particular case counsel is to his advantage.
While we may be skeptical of his election knowing that he may
conduct his defense ultimately to his own detriment, his choice must
be honored.

Id. at 583. Kelvin’s argument amounts to a claim that the trial court should have

denied his request because the decision to represent himself mid-trial was unwise.

But that is not a basis for finding that the trial court abused its discretion in

granting the request. See id. Accordingly, we hold that the trial court did not

abuse its discretion by granting Kelvin’s request mid-trial. See id.

Because we have concluded that the trial court did not err in permitting

Kelvin to represent himself, we do not address his related argument that the trial

court’s alleged error in granting the request is not subject to a harm analysis.

We overrule Kelvin’s fifth issue.

64
 Conclusion

We affirm the trial court’s judgment.

Rebeca Huddle
Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Publish. TEX. R. APP. P. 47.2(b).

65