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Long v. State

Court of Appeals of Texas, Fourteenth District

April 18, 2017

ROBERT RANDALL LONG, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 177th District Court Harris County, Texas Trial Court Cause No. 1273161

          Panel consists of Justices Busby, Brown, and Jewell.

          OPINION

          Marc W. Brown Justice.

         Appellant Robert Randall Long was indicted for theft of property from multiple complainants, with a total value over $200, 000, pursuant to one scheme and continuing course of conduct, beginning about March 1, 2008, and continuing through January 31, 2009. See Tex. Penal Code §§ 31.03, 31.09 (West 2015). The jury returned a guilty verdict and assessed appellant's punishment at confinement for life. Appellant challenges his conviction in five issues. First, appellant contends the evidence was legally insufficient because it failed to show that he personally engaged in the criminal scheme and course of conduct. Second, appellant asserts that he suffered egregious harm from the trial court's erroneous inclusion of a circumstantial-evidence instruction in the jury charge. In his next two issues, appellant argues that the trial court erred in denying his motions to suppress evidence from two searches where (1) a search warrant was not supported by probable cause and (2) he did not voluntarily provide consent. Finally, appellant contends that the trial court abused its discretion in refusing to permit him to represent himself at trial. We affirm.

         I. Background

         Appellant was charged by indictment with the felony offense of theft of property with a total value over $200, 000. As alleged in the indictment, "pursuant to one scheme and continuing course of conduct, " appellant unlawfully appropriated, by acquiring and exercising control over property, namely, money, owned by multiple named complainants with the intent to deprive those complainants of that property, which had a total value over $200, 000. The conduct was alleged to have occurred beginning on or about March 1, 2008, and continuing through January 31, 2009.

         At trial, the State presented evidence of appellant's scheme during this timeframe from multiple victims. Matt Berkebill with Advanced Welding in Arkansas testified that a Harold Lucas with ExxonMobil Canada contacted him by email about an emergency welding project. Berkebill accepted the job with the condition that Advanced had to use "Inconel 6003578" wire. Advanced received a purchase order signed by Lucas. After Berkebill was unable to find a supplier for the wire, Lucas said the wire was "exclusive to Exxon[]Mobil" and had to be ordered from supplier B and L Materials, located in Tomball, Texas. Berkebill communicated with a Norma Williamson with B and L. Even though suppliers generally permit credit, B and L insisted on cash payment. Advanced borrowed money, and one of its employees drove a cashier's check for $28, 600 to Tomball. Advanced purchased the specialized wire at $52 per pound, but instead received ordinary carbon welding wire that normally costs $2 per pound. Berkebill sought a refund for the wire, but B and L did not answer the phone or return emails. Advanced did not receive the ExxonMobil Canada job and never used the wire.

         Manuel Camarena with Barber Welding & Manufacturing in California received emails from a Harold Lucas and a Tony Dunn with ExxonMobil Canada. Camarena agreed to clad three heat exchanger heads. Lucas insisted that Barber Welding use "IN6003578" wire for the job. After Camarena failed to locate this wire, Lucas informed him that B and L was the exclusive supplier. Camarena communicated with a Norma Williamson with B and L. After receiving a purchase order signed by Lucas, Barber Welding ordered the "IN6003578" wire at $58 to $60 per pound. Instead of the usual 30 days to pay, Barber Welding had to pre-pay. Barber Welding sent a $9, 533.78 company check to B and L, and B and L shipped the wire. The wire had a tag claiming it was "IN6003578" from the Inconel 600 series, but instead the wire was basic carbon steel wire suitable for jobs done with wire costing less than $5 per pound. Barber Welding never received any work from ExxonMobil Canada.

         Brian Miller with Bench Industries in Montana received emails from a Tony Dunn with ExxonMobil Canada asking if Bench could perform a job to "hard-surface" filters. Dunn told Miller that he had to speak to Robert Long with "RLC" "because he had the proprietary on the powder that [Miller] had to purchase from B and L" in Tomball. Bench received a purchase order signed by Dunn. Because B and L did not permit credit, Bench paid B and L $9, 874 by wire transfer for 200 pounds of this powder. After ExxonMobil Canada was delayed in sending the filters for Bench to work on, Miller indicated that Bench could manufacture the filters instead. Dunn signed a change order. Dunn then informed Miller that ExxonMobil Canada needed a different powder for a different emergency job. Miller received another purchase order signed by Dunn. Bench wired B and L $11, 356 for 200 pounds of this other powder. Miller put all the Bench employees on the jobs and purchased special equipment and materials. However, the jobs never materialized. A Louis Boullion with B and L sent Miller mill test reports for the powders. However, Bench's testing was unable to determine what specific chemicals comprised the powders, which were "useless" to Bench.

         After working as a litigation attorney for Exxon USA, Harry (Bo) Wright opened a welding shop in Oklahoma, Wright Welding and Machine, Inc. Wright received a call from a Harold Lucas regarding a job to coat exchanger heads using "IN6003578" wire from B and L in Tomball. Wright Welding received a purchase order signed by Lucas and approved by a Joselyn Nelson. Wright communicated with a Louis Boullion and a Norma Williamson with B and L. Wright Welding wired B and L $11, 875.20 in full payment upfront for the wire, including $3, 000 for expedited shipping. The wire was delayed. In the meantime, Wright attempted to reach the real Harald (not Harold) Lucas and the real Jocelyn (not Joselyn) Nelson and learned that neither Harald nor Jocelyn knew about the purchase order or purported job. Wright unsuccessfully attempted to stop the B and L order. When the wire finally arrived, Wright sent it for lab testing. The wire tested as standard welding wire worth about $2.10 per pound.

         After speaking with and receiving an ExxonMobil Canada purchase order signed by a Tony Dunn, Mike Funk with Metal Tech Inc. in Mississippi wired over $23, 000 to a Louis Boullion at B and L to purchase proprietary "IN6003578" wire for a pipe-cladding job. However, the wire B and L sent tested "very, very soft." The job never materialized.

         Duane Boerboom with Supreme Welding in South Dakota received an email from a Harold Lucas with ExxonMobil Canada about a rush job to clad refinery dome heads. After receiving a purchase order signed by Lucas, Supreme wired $26, 621.10 to B and L to purchase the required "IN6003578" wire, plus $2, 565 in rush shipping costs. Boerboom heard dogs barking in the background when he spoke to a Louis Boullion with B and L. Supreme received no work from ExxonMobil Canada, ended up laying off four employees, and had to decrease salaries.

         Robert (Bob) Ross[1] of Ridge Engineering in Ohio testified that Ridge wired B and L $35, 000 to purchase specialized wire for an ExxonMobil Canada job solicited by a Tony Dunn. Testing revealed that the specialized wire was regular carbon steel wire. The job, which was supposed to entail "hardfacing" tubing, never materialized.

         Harold Reimer of Reimer Welding Inc. in Minnesota testified that a Harold Lucas of ExxonMobil Canada solicited Reimer Welding for a job rebuilding tube ends with a wire overlay. After receiving a purchase order signed by Lucas, Reimer Welding wired $9, 605.78 to B and L for the special Inconel wire ExxonMobil Canada required for the job. The job never materialized.

         Ryan Bourke with Academy Fabricators in Canada received a call from Robert or Bob Long with RLC. Long indicated he had some overflow pipe-cladding work from ExxonMobil that he was unable to handle. Long informed Bourke that for the job Academy was required to use a special powder available only from B and L. Academy wired $78, 992 to B and L. Academy received purchase orders from ExxonMobil requiring additional powder. Bourke ordered a second shipment and wired $70, 811.20 to B and L. Bourke never received the full 1, 600 pounds of powder Academy ordered. Bourke attempted to return the powder for a refund, but never heard back from a Louis Boullion at B and L. The jobs never materialized.

         A salesclerk who worked at Cypress-290 Welding Supply testified to selling a man from B and L several spools of regular carbon steel wire, on sale for $1.29 per pound, on January 15, 2009. The man told the clerk he would soon need "close to a pallet" more. The man had two dogs in his SUV. Later, during a TV news report, the clerk saw the wire he had sold to the man at the man's house. The clerk identified appellant as the purchaser.

         Harald Lucas testified that he has worked for ExxonMobil for over 24 years. While working in Baton Rouge, Louisiana, in 2003, Harald met appellant. Harald never knew a Louis Boullion and had no knowledge of B and L. Several times, appellant tried to sell Harald a specialized flame spray process for ExxonMobil. During one call, Harald told appellant he would be moving to northern Canada. Harald learned about the scheme when the payables department at ExxonMobil contacted him about certain welding purchase orders containing the name Harold Lucas. Harald knew nothing about the purchase orders and notified ExxonMobil's legal department and Hank Sarno with ExxonMobil's global security department.

         Sarno testified regarding his investigation of the matter. He concluded that no actual ExxonMobil employees-Harald Lucas, Tony Dunn, or Jocelyn Nelson- were involved. Sarno reviewed ExxonMobil records, which led him to a possible connection between Harald Lucas and appellant. Online research of a phone number used in the scheme indicated a general locale of Tomball, Texas. Ultimately, Sarno provided information about his investigation to Sergeant Jeff Lee with the Harris County Constable's High Tech Crimes Division.

         Lee, the lead investigator on appellant's case, testified regarding his investigation, which led to the issuance of a search warrant on appellant's Tomball residence. On January 16, 2009, officers executed the warrant and seized multiple electronic devices, including computers, cell phones, air cards, [2] external media storage, and thumb drives; Magic Jacks;[3] corporate documents for B and L showing a Louis Boullion to be the president; mail for B and L addressed to appellant's Tomball residence; a fake Texas driver's license in the name of Louis Boullion containing appellant's Tomball residence address and photo but using appellant's ex-wife Lois Boullion's actual driver's license number; bank check cards in the names of appellant, appellant with B and L, and Louis Boullion with B and L; document scanners; spools and boxes of welding wire;[4] sticker sheets printed with "IN6003578"; B and L business cards with B and L's phone number and listing appellant as the treasurer; envelopes containing approximately $765, 720 in cash; and checks on B and L's bank account made out to appellant. No metal powder was located during the search. According to Lee, only appellant lived at the Tomball residence, along with eight dogs.

         Lee walked through various digital documents located on appellant's thumb drives.[5] Lee described how appellant's scheme evolved-earlier on, appellant used his own name, and then exclusively started using false names. Lee testified to his conclusion that appellant was the individual using the names Harold Lucas, Tony Dunn, Joselyn Nelson, [6] Jim Garrison, [7] Louis Boullion, and Norma Williamson.

         The State also presented Detective Lawrence Potier, a forensic examiner on special assignment with the FBI at the Regional Computer Forensic Laboratory. Potier analyzed the digital evidence. His analysis revealed documentation related to purchasing hosting for the exxmobcan.com and exxmobca.com domains and email accounts; documentation related to obtaining an email for Louis Boullion at bandlmaterials@aol.com; purchase orders signed by Tony Dunn and Harold Lucas; lists of welding shop email addresses; technical drawings sent to the welding companies; B and L invoices for the specialized wire and powder; FedEx receipts for sending materials in Louis Boullion's name; shipping labels; and email correspondence soliciting the various welding jobs.

         Bryan Vaclavik, chief fraud examiner for the Harris County District Attorney's office, performed a forensic examination of the wire transfers and bank accounts involved in the scheme. Vaclavik was able to trace $465, 653.58 coming into one of B and L's bank accounts from the complainants listed in appellant's indictment. He was able to trace another $279, 918.69 coming into another B and L bank account from the complainants. Appellant owned and had sole access to both accounts. Appellant withdrew money from these accounts through checks written to himself and by wiring money into other bank accounts he controlled. Vaclavik did not locate any payments from any B and L accounts to Louis Boullion, to any employees, or for significant supplies. According to Vaclavik, the B and L account activity reflected "very little to none" in terms of legitimate business.

         Appellant testified that he started and owns all the stock in Randall Long Corporation, or RLC. According to appellant, Louis Boullion had lived with him at his Tomball house periodically, and had helped appellant open B and L. Louis was the president and appellant owns all the stock of B and L. Appellant claimed that he had not seen Louis since appellant's arrest. Appellant had no explanation for the fake driver's license located at his Tomball house in the name of Louis Boullion but with appellant's photo. Appellant acknowledged that his ex-wife's name is Lois Boullion.

         Appellant denied his involvement in the generation of any purchase orders from ExxonMobil. Appellant claimed Harald Lucas told him that B and L had to sell "IN6003578" wire or ExxonMobil would stop using B and L as a supplier. Appellant also claimed that he would send carbon steel wire along with a powdered metal mix in a kit containing instructions on how to make "IN6003578" wire. He could not explain the fact that no customer who received wire from B and L received any powder to mix with it. According to appellant, no documentation existed regarding the make-up of the "secret process" because "you keep a trade secret secret by keeping it in your head." Appellant also claimed that he was charging customers the "Exxon price." He blamed delayed or missing shipments on "the hurricane." He insisted that no customer ever contacted him to request a refund for any product.

         The jury returned a "guilty" verdict. During the punishment phase, among other evidence, the State presented evidence that even after his arrest on this case appellant engaged in additional theft schemes. This time, the solicitations for welding jobs were on behalf of Chevron Oil and Shell Oil; the specialty wire required was known as "1018TaV"; and the wire was to come from RLC d/b/a Exotic Metals Supply. The jury assessed appellant's punishment at confinement for life. Appellant timely appealed.

         II. Analysis

         A. Appellant's legal-insufficiency issue

         In his first issue, appellant challenges the sufficiency of the evidence to support his conviction.

         1. ...


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