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Burt v. State

Court of Appeals of Texas, Eleventh District

August 31, 2017

CHARLES BURT, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 35th District Court Brown County, Texas Trial Court Cause No. CR23107

          Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

          OPINION

          MIKE WILLSON, JUSTICE

         The jury found Charles Burt guilty of engaging in organized criminal activity because it found that he was part of a conspiracy to distribute illegal drugs in Brown County. The jury assessed his punishment at confinement for life. We affirm.

         In his first issue on appeal, Appellant challenges the sufficiency of the evidence to support his conviction. In his second issue, he asserts that his conviction in this case is barred by double jeopardy because of a previous conviction in Tarrant County. Within his first issue, Appellant also complains about the trial court's denial of two motions and a writ of habeas corpus, about jury charge error, and about improper closing arguments by the State. Within his second issue, he makes mention of a motion to quash and also complains about the trial court's action when it ordered consecutive sentencing. We affirm.

         I. The Charged Offense

         The grand jury alleged that Appellant, along with some 35 other individuals, conspired to commit the offense of possession of a controlled substance with intent to deliver, and it indicted him for engaging in organized criminal activity. A person commits the offense of engaging in organized criminal activity:

[I]f, 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: . . . (5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug.

Tex. Penal Code Ann. § 71.02(a)(5) (West Supp. 2016); see Nguyen v. State, 1 S.W.3d 694, 695 (Tex. Crim. App. 1999). A combination is defined as "three or more persons who collaborate in carrying on criminal activities." Penal § 71.01(a); Nguyen, 1 S.W.3d at 695.

         II. Evidence at Trial

         In August 2013, Carri Vickers, who had tattoos that related to the Aryan Brotherhood and the Aryan Circle and was a "featherwood, " and Appellant, a member of the Aryan Brotherhood of Texas, began a romantic relationship. Appellant and Vickers were also involved in the sale of illegal drugs, including methamphetamine. Appellant provided "protection" to Vickers. Vickers supplied methamphetamine to Chad Cooper, Auston Welker, and Ben Smith. Vickers stated that, per transaction, she sold approximately one pound of methamphetamine to Cooper. Vickers denied that she conducted illegal drug transactions in Fort Worth.

         A. Appellant's actions in Tarrant County and his subsequent convictions in that county for three offenses.

         Law enforcement personnel for the City of Fort Worth arranged a "special operation detail" that involved Vickers. A confidential informant contacted Vickers and arranged to buy ten ounces of gamma hydroxybutyrate acid (GHB); they were to meet at a gas station on Interstate 30 in Fort Worth. Appellant accompanied Vickers to the transaction, which was to occur in Fort Worth, and he brought 100 grams of methamphetamine with him for Vickers to sell to Cooper. Vickers and Appellant arrived at the gas station in Fort Worth to complete the drug deal, but they left. Law enforcement officials pursued Appellant and Vickers in a lengthy highspeed chase on the interstate. After Vickers's rental car hit another vehicle and stopped in a grocery store parking lot, she jumped out and attempted to escape on foot. The chase ended when Vickers pointed her gun at an officer; she was shot and taken to the hospital. Appellant also fled on foot, but he was quickly caught and taken into custody.

         Appellant pleaded guilty in Tarrant County to three offenses: (1) possession with intent to deliver more than four grams but less than 200 grams of methamphetamine, (2) unlawful possession of a firearm by a felon, and (3) evading arrest. The trial court accepted his guilty pleas, assessed punishment at confinement for fifteen years for those three offenses, and sentenced him.

         B. The grand jury in Brown County indicted Appellant for the separate offense of engaging in organized criminal activity.

         After Appellant was convicted in Tarrant County, the grand jury in Brown County indicted him for the offense of engaging in organized criminal activity by conspiring to commit the offense of possession of a controlled substance with the intent to deliver. Appellant's trial counsel moved to quash the indictment on the ground that the indictment did not contain any allegation that Appellant committed any specific act in Brown County that furthered organized criminal activity in that county. The trial court denied the motion to quash. Appellant's counsel also sought a writ of habeas corpus and claimed that the organized criminal activity statute was unconstitutional as applied to Appellant. The trial court denied the relief.

         At trial, after the State rested, defense counsel moved for a directed verdict in which he alleged that the State had failed to produce evidence of any overt act committed by Appellant in Brown County that furthered the conspiracy. The trial court denied Appellant's motion. At the end of trial, Appellant requested a jury charge instruction that an overt act must have been committed by Appellant, but the trial court overruled that request. In addition, the trial court denied Appellant's request for a limiting ...


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