Affirmed and Opinion Filed April 2, 2015




                                            Court of Appeals
                                                              S     In The


                                     Fifth District of Texas at Dallas
                                                         No. 05-13-01138-CR
                                                         No. 05-13-01139-CR

                                      KENNETH PAUL LAWRENCE, Appellant
                                                     V.
                                         THE STATE OF TEXAS, Appellee

                               On Appeal from the 380th Judicial District Court
                                            Collin County, Texas
                            Trial Court Cause Nos. 380-80745-2011, 380-80746-2011

                                           MEMORANDUM OPINION
                                   Before Justices Francis, Lang-Miers, and Whitehill
                                              Opinion by Justice Whitehill
           A jury found Kenneth Paul Lawrence guilty of money laundering and engaging in

organized criminal activity for his role in soliciting investors for a biodiesel project in Hunt

County, Texas. In four issues on appeal, Lawrence contends that (i) the evidence is insufficient

to support his convictions, (ii) the non-accomplice evidence does not connect him to the

offenses, (iii) the trial court erred in allowing testimony from the State Securities Board

supervisor who is a lawyer, and (iv) his Sixth Amendment right to confront witnesses was

violated because he was not present for some witnesses depositions.1 The State asks that we


     1
        Lawrence asserts these four issues in separate briefs for each of the two convictions. We address both convictions in this opinion and refer
to the issues collectively to include the points raised in both briefs.
reform the judgment in cause number 05-13-01138 (engaging in organized criminal activity) to

reflect that the sentence was suspended rather than executed. We conclude that the evidence is

sufficient to support the convictions and the non-accomplice testimony tends to connect

Lawrence to the offenses. Lawrence’s remaining issues were not preserved for our review. We

reform the judgment for engaging in organized criminal activity and affirm the trial court’s

judgments as reformed.

                                     I. BACKGROUND

       This case involves money laundering and engaging in organized criminal activity by

soliciting funds from investors, many of whom were elderly and living on a fixed income, to

construct a biodiesel plant in Hunt County, Texas. According to the indictments, the offenses

were committed in Collin County between August 1, 2008 and September 30, 2009.

       Lawrence, along with Ricky Knowles, John Riddle, Casey Vanloon, and Gene Nichols,

solicited over $846,000 from twenty-one investors. The investors were promised high returns,

and some were told they were purchasing an annuity rather than an ownership interest in a

biodiesel plant. The investors were also told that the investment was “protected” by insurance.

The plant was never built and the investors ultimately lost their money. Knowles, Riddle,

Vanloon, and Nichols collectively received $481,168.83 of the investor funds. Lawrence’s

company received $266,079.76 of investor funds, of which only $40,000 was applied to the

biodiesel plant.

       Lawrence was charged with theft, engaging in organized criminal activity, money

laundering, and securities fraud. Knowles, Riddle, and Vanloon each signed a voluntary

confession and plea agreement, confessing to engaging in organized criminal activity by

participating with each other and Nichols to commit money laundering and theft over $200,000.




                                             –2–
Knowles, Riddle, and Vanloon each testified at Lawrence’s trial.2 The jury found Lawrence

guilty of money laundering and engaging in organized criminal activity, and acquitted him of

theft and securities fraud. The jury assessed Lawrence’s sentence at five years’ imprisonment for

money laundering and a ten year probated sentence for engaging in organized criminal activity.

Lawrence Energy’s Biodiesel Project.

             The evidence admitted at trial established that in 2003, Lawrence and Knowles worked

for the same company selling unregistered oil and gas securities. The State Securities Board

investigated Lawrence for selling unregistered oil and gas securities, and Lawrence agreed to

stop. Lawrence filed bankruptcy in 2004.

            Knowles later started his own company, Knowles Consulting. Lawrence also started a

company with his brother-in-law. Lawrence’s company, L&C Consultants (“LCC”), sold

interests in oil wells, some of which were dry, abandoned wells that had been drilled years

before. In 2007, three investors won a judgment against Lawrence for selling unregistered oil and

gas securities. Lawrence left LCC and started a new company, Lawrence Energy.

            At Lawrence Energy, Lawrence began working with Sunx Energy to build a biodiesel

plant in Hunt County, Texas (the “Sunx Project”). To this end, in the summer of 2008, Lawrence

sent Sunx $20,000 through Lawrence Energy. Lawrence was also raising money for other

projects, including a project to build a carbonization plant through a company called “Green

Diversion.”3

            In the interim, Knowles Consulting was investigated by the State Securities Board, and

was also the subject of a lawsuit by investors who claimed they never received a return on their

investment. Knowles began looking for other work.

     2
      Nichols pled guilty and received an eight-year sentence, but the record does not reflect the specific crime he was charged with having
committed.
     3
         Lawrence was a managing member of Green Diversion. Green Diversion was a sewer-waste and cow-manure carbonization company.



                                                                   –3–
The Greenway Fronting Group.

        Lawrence knew that Knowles was looking for other work. Although he was aware that

Knowles had been investigated for selling unregistered securities, he suggested that Knowles sell

the Sunx Project to investors. Lawrence also told Knowles that the project materials were

prepared and the project would produce “somewhat of an instant income.” Lawrence told

Knowles “he wanted x amount of dollars back.” Knowles did not recall the total, but believed

Lawrence wanted “eight hundred and something thousand dollars” for the Sunx Project.

Consequently, Knowles and his friend Riddle formed Greenway Energy Partners to be the Sunx

Project fund-raising arm. The plan was for investor money to go to Greenway and then to

Lawrence Energy. Once Lawrence Energy had the money, Lawrence was supposed to send it to

Sunx. The investors were not told about Lawrence Energy or Lawrence, but were instead led to

believe that Greenway would provide the money directly to Sunx. Greenway was not registered

to sell securities.

        Vanloon also raised money for the Sunx Project through Greenway. Vanloon, a friend of

Knowles, previously worked at an insurance agency where he and his friend Nichols sold

annuities. But Vanloon surrendered his insurance license after the Texas Board of Insurance

investigated the company’s practice of moving investors to new annuities each year to generate

more commissions for the insurance agents.

        When Greenway was formed, Knowles did not want his name associated with the

company because of the prior securities investigation. Riddle, who worked with Knowles during

the securities investigation, did not want his name associated with Greenway either. So Knowles

contacted Vanloon, and Vanloon agreed to be Greenway’s owner. When Vanloon joined

Greenway, he also brought along his friend Nichols. Thus, Knowles, Riddle, Vanloon, and

Nichols began selling the Sunx Project through Greenway.

                                              –4–
       Riddle ran Greenway’s day-to-day operations and wrote all of its checks. When

Greenway first started, it shared an office suite with Lawrence. Although Greenway’s office

eventually moved across the hall, Riddle still spoke with Lawrence on a daily basis.

       Lawrence gave Greenway all of the materials it needed to sell the Sunx Project to

investors, including a prospectus with information about Sunx that was readily available on the

internet. The prospectus did not mention Lawrence or Lawrence Energy.

       Lawrence also gave Greenway a copy of an existing joint venture agreement between

Lawrence Energy and a company called Green Diesel, and told Riddle to change the name

“Lawrence Energy” to “Greenway.” The new joint venture agreement was to be provided to

investors in the Sunx Project, but it did not mention Sunx, Lawrence, or Lawrence Energy.

Selling the Sunx Project.

        Although the cost to own and operate a Sunx biodiesel plant was $750,000, the

Greenway joint venture agreement says that Greenway was attempting to raise $3,294,000 by

selling thirty joint venture units at $109,800 per unit. Investors were solicited from cold call lists

Lawrence and Knowles had from their oil and gas dealings as well as from the list of clients to

whom Nichols and Vanloon previously sold annuities.

        Knowles testified that Lawrence told him the investors would receive an 80-100% return

on their investment. But according to Knowles, “the real appealing part” was the insurance

policy Lawrence told him about. Investors were told the project was backed by a Fireman’s

Fund-issued insurance policy that would guarantee a 33% return on investment if the plant shut

down or stopped production. Many of the investors received a letter from Greenway (the

“Greenway Letter”) that stated:

               In regards to the Bio-Diesel Plant that Greenway Energy Partners is
               building in Hunt County, Texas, your investment is backed by an
               Insurance Policy (Firemen’s Fund), provided by SunX Energy to
               Greenway Energy Partners. Greenway Energy Partners has extended this
                                                 –5–
               policy to all of it [sic] clients. What this means to you, is that you can
               expect to receive a 33% return each year. This is the amount that the
               insurance policy will cover for the next five years.

       Greenway solicited and collected funds from investors from August 2008 through August

2009. Lawrence’s uncle, however, testified that by the end of 2008 Lawrence was frustrated with

Sunx and having serious concerns about the investment’s profitability. Nonetheless, toward the

end of Greenway’s operations in 2009, Lawrence still approached Vanloon and asked him

whether there were any other investors Vanloon could “go see or talk to.” Lawrence said they

were only fifty to sixty thousand dollars away from starting the plant. Vanloon found an

additional investor, but weeks passed and Vanloon heard nothing about the plant getting started.

        Greenway eventually stopped functioning because the salesmen ran out of potential

investors to call. Although Greenway received $846,421.60 in investor funds, the biodiesel plant

was never built and the investors lost all of their money.

The Investors.

        Four of the twenty-one individuals who invested in the Sunx Project testified by

deposition at trial. These individuals included James Willis, Herman Peace, Billie Nevill, and

Alma Sparks. Another investor, Garland Downing, testified live.

                                               Willis

       Willis, who was seventy-eight years old when deposed, testified that Nichols sold him the

interest in the Sunx Project. But Willis was led to believe that Greenway was an annuity

company, and he was just rolling his existing annuity into a new one. Three months before he did

so, Nichols visited him to discuss investing in biodiesel. Willis told him “without any doubt

whatsoever [he] wanted nothing to do with anything like that.”

       Willis invested over $151,000 in what he believed was an annuity. Nichols told him, “It’s

insured. We’re looking at no risk on this.” When Willis made the investment, Nichols visited his


                                                –6–
home with another man and told Willis to sign the contract that would be “sent in” with his

check. Nichols told Willis he would bring him a copy of the contract later.

        The “contract” Willis and other investors eventually received was the Greenway joint

venture agreement. Willis also received the Greenway Letter stating that he would receive a

minimum annual return of 13.5% guaranteed for the next five years.

        Willis became suspicious and began calling Greenway. He recorded telephone

conversations with Nichols and Riddle, as well as a telephone conversation he had with

Lawrence. The recorded conversation with Lawrence was admitted into evidence and played for

the jury.

        In the recorded conversation, Willis told Lawrence that he (Willis) had been deceived. He

thought he was investing in another annuity, and did not want anything to do with investing in

biodiesel. Willis explained that such an investment was too risky for him because of his age and

health problems. Throughout the conversation, Lawrence attempted to convince Willis that the

Sunx Project was a good investment. At one point, Lawrence told Willis, “[t]he interest–payout

is astronomical.” Lawrence also told Willis, “There are very few people privileged to own this.

You don’t appreciate what you own. I’ve got people banging on my door to get this that can’t get

it.” When Willis asked about the guarantee that he would not lose money that Nichols told him

about, Lawrence responded:

               There’s no guarantee in anything. But what he’s probably referring to is
               that once the plant is up and running, okay, Sunx has a [sic] insurance
               policy that they’re going to put in place, now it’s not in place yet, okay,
               because the plants aren’t up and running, but there’s an insurance policy
               for when if a plant, let’s say for instance we don’t get our shipment of oil
               one day, then our plants aren’t running that day, well, our insurance will
               kick in and still pay us as if we were still running our plant. That’s the
               only thing I can guess that he was referring to.

        When Willis asked about a refund, Lawrence initially told him the funds had been sent to

him, not Sunx. Willis asked, “Who are you?” Lawrence replied that he was the plant operator
                                               –7–
and Greenway was to pay him for the plant. Lawrence stated, “Once I get it, all funds are

distributed to Sunx. We don’t hold on to the funds.” When Willis insisted he should get a refund

because he had been deceived, Lawrence told him, “I know these guys, they are straightforward

guys. They are not crooks, they are not bad guys.” Later in the conversation, Lawrence said,

“They are straightforward men and I chose to do business with them because of that.”

       Willis continued to press for a refund, and Lawrence told him he would have to take that

up with Greenway. But at one point, Lawrence told Willis, “I told them if it comes down to it, I

will happily put in a request for a refund from Sunx, but they will have to take a 40% loss.”

Willis never received a refund, and lost the entire amount of his investment.

                                              Nevill

       When deposed, Nevill was almost eighty-three years old, was retired, and was living on

social security. She had previously bought an annuity from Vanloon. But at Vanloon’s request,

she withdrew that money and money from her IRA to invest in Greenway. She also signed a

document allowing Riddle to answer any questions concerning the liquidation of her annuity.

She did not know Riddle and signed the document without reading it.

        Nevill recalled Vanloon telling her something about a biodiesel plant and that she was

going to double her money. Nevill stated, “He was making it sound so good.” Nevill invested

$15,191 in Greenway.

       Although requested, she never received any information about the company she had

invested in. She did, however, receive a copy of the Greenway Letter stating that her investment

was backed by the Fireman’s Fund insurance policy. By the time she received the letter, Nevill

had “already figured [Vanloon] was just somebody that just took my money, and did whatever he

wanted to with it and had a hi-ho time.” Nevill asked for her money back, but Vanloon told her

that was not possible because it had already been invested. Nevill lost all of her investment.

                                                –8–
                                                 Sparks

       Sparks was eighty-seven years old and living on social security when she testified. Sparks

made a $30,000 investment in Greenway. She knew Vanloon because he had sold her an annuity.

She held the annuity for about a year, and then Vanloon showed up at her door one day to “sell

[her] something with Greenway.” Vanloon told her the investment was “protected” with

insurance from Fireman’s Fund that would cover the 33% interest for five years. Sparks’s main

selling point was the interest she was supposed to make on the investment. Sparks did not

receive a copy of the Greenway joint venture agreement or the prospectus until after she had

invested her money with Greenway. Sparks also received a copy of the Greenway Letter.

       About a year after her investment, Sparks tried to call Vanloon but could not reach him

because all of the telephone numbers he gave her were disconnected. Sparks testified that she

would not have invested had she known a large portion of the money would be used to pay the

Greenway salesmen’s or Lawrence’s personal expenses, or that it would be applied to any of

Lawrence’s other projects. Sparks lost her entire investment.

                                                 Peace

       Peace was one of the annuity clients Nichols persuaded to invest in Greenway. Peace was

eighty-eight years old when deposed, and had just lost his wife when Nichols sold him the

investment. Nichols told him that Greenway was a good investment because it was almost no

risk and “it had insurance.” Peace invested $30,000 from benefits he received on his wife’s

death. He did not receive a copy of the prospectus until about a month after he made the

investment. He also received a copy of the Greenway Letter.

       Peace invested in December 2008. In January 2009, he demanded his money back

because he could not get any of his calls through to Greenway and “there was a Better Business




                                               –9–
rating of ‘F.’” Peace said that it “became evident that [Greenway] wasn’t what it purported to

be.” Peace lost his entire investment.

                                                  Downing

       Garland Downing was seventy-nine years old during trial. He had previously bought an

annuity from Vanloon. Vanloon later contacted him “to invest money and get more interest out

of it.” Downing knew he was investing in a biodiesel plant, and wrote a check to Greenway for

$67,276. Vanloon told him he would make a thirteen to fifteen percent return on the investment.

Downing testified he was never told about Lawrence or that investor money would be spent on

Lawrence’s personal expenses. Downing never received any return on his investment, nor has his

money been returned.

                                         Sixteen Additional Investors

       In addition to the Nevill, Sparks, Peace, Downing, and Willis investments, State’s exhibit

seventeen shows sixteen additional investors who provided Greenway with investment funds

ranging from $3,000 to $137,000. There is no indication that these funds were ever used for the

Sunx Project or returned to any of the investors.

The Greenway Investigation.

       In April 2009, the State Securities Board sent Greenway a letter asking for information

about the investments. Lawrence gave Riddle a letter prepared by a lawyer on another occasion

and suggested that Riddle use the letter to form a response. The Greenway response dated May

13, 2009, signed by Vanloon, stated that Greenway was not offering or selling securities “such

that its business would be subject to the purview of the Securities Board.” The response further

said that Greenway was in the process of dissolution and declined to produce the requested

information.




                                                 –10–
          In May 2009, the daughter of William Breedlove, a Greenway investor, contacted a

Fireman’s Fund fraud investigator. That investigator, Thomas Petersik, testified that the daughter

had received an email from Sunx saying that Sunx had no association with Greenway and she

was concerned that there was no insurance policy backing up her father’s investment. Petersik

testified that he found no Fireman’s policies for Greenway, Sunx, Lawrence Energy, Green

Diesel, or LCC. He further testified that while Fireman’s did offer business interruption

insurance, he was not aware of any such policy that would guarantee a return to investors every

year for five years. Petersik called Vanloon, and Vanloon admitted that Greenway had no

insurance policy with Fireman’s.

          On May 29, 2009, Petersik sent Greenway a cease and desist letter that referenced the

Greenway Letter to investors and Vanloon’s admission that the information in the Greenway

Letter letter was false. Petersik’s letter told Vanloon, as a Greenway principal and managing

partner, to “cease and desist from any representations that Fireman’s . . . has any association

through insurance coverage or otherwise with Greenway . . . or its business operations.”

           Despite the warnings and investigations, Greenway continued to solicit and receive

investments through August 2009.

The Accounting.

          Eliza Lujan, a State Securities Board enforcement division examiner, testified about her

examination of Greenway’s and Lawrence Energy’s bank records. Greenway’s account received

$846,421.60 in investor funds. Of that amount, Riddle received $174,611, Knowles received

$168,700, Vanloon received $81,628.60, Nichols received $56,229.23 and $266,079.76 went to

Lawrence Energy.4


     4
        The remaining $99,173 was attributed to various line items, some of which appear to be business expenses such as rent, and other items
that are not explained such as “Jessica Vanloon People.” Some $7,000 went to the Stafford Law firm to settle a lawsuit debt owed by Nichols.



                                                                   –11–
           The $266,079.76 Lawrence Energy received was over 31% of all investor funds. The first

Greenway payment to Lawrence Energy in February 2009 was for $90,000. Of this amount,

Lawrence sent $40,000 to Sunx. This was the only time he sent any of the investor funds to

Sunx. The remaining $50,000 was spent on his various personal expenses, placed in a joint

account with his mother, sent to a relative, and used to obtain cash.

           On May 13, 2009, Greenway sent Lawrence Energy $100,000. Two days later, Lawrence

sent $100,000 to Carbon Diversion.5 None of these funds went to Sunx.

           Greenway sent Lawrence Energy $50,000 on June 2, 2009 and an additional $15,000 on

July 28, 2009. One week later, Lawrence wired $50,000 to Green Diversion. None of these funds

went to Sunx.

           Of the $846,421.60 in received investor funds, only $40,000 made it to Sunx.

Accomplice Testimony.

           Knowles, Riddle, and Vanloon signed voluntary confessions and plea agreements,

confessing to engaging in organized criminal activity by participating with each other and

Nichols to commit money laundering and theft over $200,000. Knowles, Riddle, and Vanloon

each testified at trial.

                                                                      Knowles

           In addition to providing background information on his previous relationship with

Lawrence and Greenway’s formation, Knowles testified that all of the information concerning

the Sunx Project, including the insurance policy, came from Lawrence. Knowles sold the

investment to only one investor, Gary Weddle. Knowles told Weddle that it was a guaranteed

investment based upon the Fireman’s Fund policy. Everything he told Weddle came from (i)

Lawrence and (ii) the prospectus Lawrence prepared and provided. Lawrence told Knowles they

    5
        Carbon Diversion is a Hawaiian company involved in turning yard waste and tires into carbon products.



                                                                    –12–
should use the Fireman’s policy to entice potential clients. Knowles admitted giving Weddle the

impression that Greenway was directly involved with Sunx.

        Knowles ultimately left Greenway because Lawrence kept changing the project. Initially,

Lawrence said the idea was to build one biodiesel plant, then two. Eventually Lawrence said it

was up to ten plants. Thus, everyone’s capital would be held until there was enough money to

build all of the plants.

        Knowles testified that a portion of the investor money went to people at Greenway and to

“pay bills.” The rest went to Lawrence, who was supposed to forward the money to Sunx.

Knowles had no idea whether Lawrence sent any money to Sunx. At the time, Knowles believed

that Sunx was a valid company. He later learned that the company “had some problems.”

                                                  Riddle

        Riddle testified that Lawrence put the prospectus together. The joint venture agreement

was sent to investors so that they could participate in the Sunx Project. When money came in to

Greenway from an investor, the salesperson would get paid, a percentage would go to Greenway,

and then a percentage would go to Lawrence Energy. Lawrence was then supposed to send the

funds to Sunx. Lawrence told the people at Greenway that “this is the way it would work.”

        When the State Securities Board investigated Greenway, Lawrence gave him the form he

used to prepare a response. Riddle admitted that the Greenway response said Greenway was in

the process of dissolving, but there was no dissolution.

        Riddle did not think that Lawrence had any contact with the investors before they

invested, and he did not believe the investors knew who Lawrence was. But he did have

Lawrence call Willis when Willis began to complain.




                                               –13–
                                                Vanloon

       Vanloon testified that he joined Greenway when Riddle introduced him to Lawrence.

When he joined Greenway, he was led to believe that Lawrence had his own customer base and

would also be contacting customers. Lawrence gave Vanloon all of the information about the

Fireman’s Fund insurance policy that he used to solicit investors. Vanloon testified that

everything was intended to be legitimate and he did not intend to commit theft or money

laundering.

Expert Testimony.

       Joseph Oman, an attorney and assistant director of the State Securities Board, testified for

the State without objection. Oman was a lawyer from the same office as the three special

prosecutors who tried the case, and he provided expert testimony on securities law.

                                         II. ANALYSIS

A. Was the Evidence Sufficient to Support Lawrence’s Convictions?

       Lawrence’s first issue contends that the evidence was insufficient to support his

convictions for engaging in organized criminal activity and money laundering. In assessing the

sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict

to determine whether any rational trier of fact could have found the essential elements beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony. See Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010). We may not substitute our judgment for that of the fact finder. See

Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).




                                              –14–
1. Was The Evidence Sufficient to Support Lawrence’s Conviction for Engaging in Organized
Criminal Activity?

           A person commits the offense of engaging in organized criminal activity if, (i) 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, (ii) the person commits or conspires to commit one of the

crimes identified in the statute. See TEX. PENAL CODE ANN. §71.02(a) (West Supp. 2014); see

also Nguyen v. State, 1 S.W.3d 694, 697 (Tex. Crim. App. 1999). The crime charged in this case

was theft. See TEX. PENAL CODE ANN. §31.03 (West Supp. 2014).

           Because direct evidence is rarely available to prove the existence of an agreement,

circumstantial evidence suffices and is almost always needed. Nwosoucha v. State, 325 S.W.3d

816, 831 (Tex.App.—Houston [14th Dist.] 2010, pet. ref’d). The jury may therefore infer an

agreement among a group working on a common project when each person’s action is consistent

with realizing the common goal. Id.

            In support of his argument that he did not enter into a combination for the purpose of

committing theft, Lawrence claims that one of the accomplices testified that he was not aware of

the fraudulent manner the funds were acquired and there is no evidence that he “directly

defrauded any investor.”6 Despite Lawrence’s contentions, the evidence shows that Lawrence

collaborated, in combination with Nichols, Knowles, Riddle, and Vanloon to raise money for the

Sunx Project according to the plan Lawrence devised and set into motion. Lawrence also decided

how the money would flow from investors to Greenway to Lawrence Energy, gave Greenway

the prospectus and joint venture agreement, and let Greenway use his offices to start its

operations. Furthermore, Lawrence generated the idea of using the Fireman’s Fund policy as a

sales pitch for potential investors. Lawrence gave Greenway a list of potential clients to contact,


   6
       Lawrence does not identify the specific testimony or provide citations to the record.



                                                                     –15–
and pressured the salesmen to find more investors. And when Riddle told him that the Securities

Board was starting to look into things, Lawrence provided a form letter to lead the Securities

Board to believe Greenway was dissolving.

       The jury heard testimony concerning Lawrence’s prior business dealings, including his

difficulties with the Securities Board and the judgment entered against him in the lawsuit with

former investors. The jury also heard testimony that Lawrence knew of Knowles’s prior

difficulties with the Securities Board, and selected him to lead the salesforce. In fact, Lawrence

told Knowles the Sunx Project would provide “somewhat of an instant income.”

       Although Lawrence had doubts about the biodiesel plant within two to three months of

his initial investment, he pressured Greenway to solicit additional investors and he continued to

receive Greenway generated funds through August 2009. From March 2009 through August

2009, Greenway solicited ten more investors, and Lawrence knew that the investor money was

not being applied to the Sunx Project. Instead, after the $40,000 wire transfer to Sunx in

February 2009, all investor funds Lawrence Energy received were used for Lawrence’s personal

expenses, his relatives, and his other projects. For example, when Lawrence received $100,000

in investor funds in May 2009, he applied the funds to his carbonization project. Lawrence knew

that investors should have been told about the new project because Vanloon testified Lawrence

was “going to send something to let people know.” Nothing was ever sent, and the investors

were never told that Lawrence was using their money for numerous other purposes besides the

Sunx Project.

       Lawrence also points to the disclaimer language in the prospectus as evidence that he did

not know of the fraud. This argument is not persuasive. Lawrence does not explain how language

in the prospectus, that investors were not given until after they had invested, somehow

demonstrates that he did not know about the fraud. Moreover, the prospectus’s warning language

                                              –16–
says only that “participation as a joint venture . . . involves a high degree of risk.” The prospectus

does not warn that Lawrence and his accomplices would appropriate investor funds for

themselves.

            Lawrence further contends that each accomplice denied the wrongdoing necessary to

establish a “combination,” and that the potential investors were given “completed mutilated

versions of Lawrence’s original information.” But it was the jury’s job to resolve any conflicts in

the evidence, and the jury was free to accept or reject any and all of the evidence presented by

either side. TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979); Wesbrook v. State, 29 S.W.3d

103, 111 (Tex. Crim. App. 2000). Considering all the evidence in the light most favorable to the

verdict, we conclude that the jury was rationally justified in finding guilt beyond a reasonable

doubt and that the evidence is sufficient to support Lawrence’s conviction for engaging in

organized criminal activity. See Isassi, 330 S.W.3d at 638.

2. Was The Evidence Sufficient to Support Lawrence’s Conviction for Money Laundering?

            The essential elements of a money laundering offense under penal code section

34.01(a)(1) are that a person: (i) knowingly; (ii) acquire or maintain an interest in, receive,

conceal, possess, transfer, or transport; (iii) the proceeds; (iv) of criminal activity. See TEX.

PENAL CODE ANN. §34.02(a)(1) (West 2011). The Penal Code specifically provides that

“criminal activity” includes any offense that is classified as a felony in Texas. TEX. PENAL CODE

ANN. §34.01(1)(A) (West 2011). Here, the criminal activity was theft. See TEX. PENAL CODE

ANN. §31.03.7 The indictment alleged that Lawrence committed money laundering when he

knowingly acquired an interest in and possessed $200,000 or more that was generated from the

commission of a theft in the amount of $200,000 or more. TEX. PENAL CODE ANN. §34.02(a)(1);

(e)(4).

    7
        The theft indictment is not included in the record.



                                                              –17–
       Lawrence does not dispute that over $200,000 in investor funds were sent to him or that

the money was in his possession. Instead, he claims he did not know the money was obtained by

theft. Sufficient evidence establishes otherwise.

       The evidence shows that Lawrence knew about Knowles’s prior securities investigations.

Because Greenway occupied the same office building and temporarily the same office as

Lawrence Energy, and because Riddle spoke with Lawrence on a daily basis, the jury could

reasonably infer Lawrence knew Greenway was structured with Vanloon as the owner to keep

Riddle’s and Knowles’s involvement from investors. Indeed, from his close proximity to and

interaction with Greenway, the jury could rationally infer that Lawrence knew what Greenway

and its members did regarding the Sunx Project.

       Moreover, when he gave Riddle the joint venture agreement and prospectus for the Sunx

Project, Lawrence told him to change “Lawrence Energy” to “Greenway.” Neither document

mentioned Lawrence or Lawrence Energy. Thus, Lawrence knew the investors were unaware of

his involvement in the project. In fact, when Lawrence spoke to Willis after he complained about

the investment, Willis had to ask Lawrence who he was.

       Despite the investors’ lack of knowledge about Lawrence’s involvement, the record

shows that he was the Sunx Project mastermind. He suggested that Riddle and Knowles solicit

investors. He provided the joint venture agreement and prospectus. He told the Greenway

members that money would flow from investors to Greenway, from Greenway to Lawrence

Energy, and then from Lawrence Energy to Sunx. And he generated the phantom Fireman’s

Fund policy sales pitch that Greenway used to lure investors.

       Lawrence, however, insists there is no evidence he knew that investors were being misled

about the insurance policy or told the investment was guaranteed. But when Willis asked him

about Nichols’s representation that Willis would not lose any of his investment, Lawrence

                                               –18–
immediately identified the Fireman’s Fund policy as the likely source of Nichols’s reference.

The Greenway members testified that all of the information about the Sunx Project came from

Lawrence, including the information about the insurance policy.

       The investors testified that the alleged insurance was material to their decision to invest.

For example, Peace said that he would not have invested had he known the investment was not

insured. Similarly, Nevill testified she would not have “given him” her money had she known it

was not protected.

       The documents Lawrence prepared for Greenway were also misleading. None of the

documents mention Lawrence, Lawrence Energy, or any of Lawrence’s other projects. None of

the documents reflect that investor funds will be utilized to pay salesman commissions, personal

expenses, or to invest in other projects. In fact, the joint venture agreement states that Greenway

was attempting to raise $3,294,000 by selling thirty joint venture units at $109,800 per unit. But

the investors did not purchase $109,000 units, and the cost of the single biodiesel plant originally

planned was $750,000. Lawrence also told Knowles $800,000 was required for the project.

These inconsistencies are, at best, misleading.

       Although it was after the fact, Lawrence also deceived Willis when he told him how the

investor funds were allocated. When Willis requested a refund, Lawrence told him the funds

were distributed to Sunx when he received them. But of the $266,079 in investor funds Lawrence

Energy received, only $40,000 was sent to Sunx.

       Even though Lawrence early on had doubts and concerns about the Sunx Project, he

continued to collect investor funds from Greenway and encouraged the Greenway salesmen to

solicit more investments. Moreover, his claimed lack of awareness that the money was stolen

fails to address why he used the money as he did. Assuming arguendo that Lawrence was

unaware of representations made to the investors concerning the insurance and returns, at a

                                                  –19–
minimum he knew the investors were told the money was for the Sunx Project and that the

money was to go to Sunx. Yet only $40,000 of the funds he received were sent to Sunx while he

divested substantial sums to his personal use and to the “Green Diversion” project.

       Based on the foregoing, we conclude that the evidence is sufficient to allow rational

jurors to determine beyond a reasonable doubt that Lawrence was guilty of money laundering.

We decide Lawrence’s first issue against him.

B. Does the Non-Accomplice Evidence Connect Lawrence to the Crimes for Which he was

Convicted?

       Lawrence’s second issue argues that the non–accomplice testimony fails to connect him

to money laundering or engaging in organized criminal activity. An accomplice is a person who

participates in the offense before, during, or after its commission with the requisite mental state.

Smith v. State, 332 S.W.3d 425, 439, 442 (Tex. Crim. App. 2011) (internal citations omitted). An

accomplice must have engaged in an affirmative act that promotes the commission of the offense

that the accused committed. See id. A witness who is indicted for the same offense or a lesser

included offense as the accused is an accomplice as a matter of law. Cocke v. State, 201 S.W.3d

744, 747 (Tex. Crim. App. 2006). Here, the court instructed the jury that Knowles, Riddle, and

Vanloon were Lawrence’s accomplices as a matter of law.

       The code of criminal procedure provides that a conviction cannot stand on an accomplice

witness’s testimony unless the testimony is corroborated by non-accomplice evidence that tends

to connect the accused to the offense committed. See TEX. CODE CRIM. PROC. ANN. art. 38.14

(West 2011). Evidence that the offense was committed is insufficient to corroborate an

accomplice witness’s testimony. Id. Regarding the appropriation of property, the theft statute

provides that “the actor’s knowledge or intent may be established by the uncorroborated

testimony of the accomplice.” See TEX. PENAL CODE ANN. §31.03(c)(2) (West Supp. 2014).

                                                –20–
       The accomplice–witness rule creates a statutorily imposed review and does not derive

from federal or state constitutional principles that define the usual factual and legal sufficiency

standards. Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). To weigh the

sufficiency of the corroborative evidence, we disregard the accomplice’s testimony and examine

the remaining portions of the record to ascertain whether there is evidence tending to connect the

accused with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim.

App. 2001); Maynard v. State, 166 S.W.3d 403, 410 (Tex. App.—Austin 2005, pet. ref’d). Thus,

the question here is whether there is evidence tending to connect Lawrence with the offenses

without considering the testimony of Knowles, Riddle, and Vanloon.

       We review a claim that accomplice–witness testimony is insufficiently corroborated in

the light most favorable to the verdict. See Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim.

App. 1997). Because the standard is “tendency to connect,” rather than a rational-sufficiency

standard, the corroborating evidence need not be sufficient by itself to establish guilt beyond a

reasonable doubt. Id. “Circumstances that are apparently insignificant may constitute sufficient

evidence of corroboration.” Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). Also,

“[t]here need only be some non–accomplice evidence tending to connect the defendant to the

crime, not to every element of the crime.” Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim.

App. 2007). Nor is the evidence required to link the defendant directly to the crime. Matter of

C.M.G., 905 S.W.2d 56, 58 (Tex. App.—Austin 1995, no writ). If the combined weight of the

non-accomplice evidence tends to connect the defendant to the offense, article 38.14 is fulfilled.

Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999).

       Ignoring the accomplice testimony, we conclude that the evidence tends to connect

Lawrence to the offenses of money laundering and engaging in organized criminal activity. For

example, Lawrence’s telephone conversation with Willis tends to connect Lawrence to the

                                              –21–
charged offenses. During this conversation, Lawrence discussed the Fireman’s Fund policy and

suggested Nichols was referring to this policy when he told Willis his investment was

guaranteed. It is reasonable to infer Lawrence would not have mentioned the insurance policy in

the context of a discussion about investment guarantees unless he was aware that the policy was

being described to investors as a guarantee.

       Although he knew otherwise, throughout his conversation with Willis, Lawrence

repeatedly told Willis that the Greenway men were honest, straight forward men who had “never

been in trouble.” He also told Willis that the Sunx Project investment was an excellent

investment that people were lining up and begging to participate in. And when Willis requested a

refund, Lawrence told him the funds had gone to Sunx. Lawrence knew that these statements

were false, and the statements corroborate that investors were being deceived. Furthermore,

Lawrence’s statements about the “astronomical interest” and the soundness of the investment

comport with the investors’ testimony about the high rate of return they were told to expect.

       Lawrence’s bank accounts also connect him to the offenses. The money trail

demonstrates the flow of money from investors to Greenway to Lawrence Energy and shows

collaboration with the Greenway members regarding investor funds. The bank records also show

that investors were deceived because only $40,000 of investor funds Lawrence Energy received

from Greenway were applied to the Sunx Project. The remaining investor funds Lawrence

Energy received were diverted for Lawrence’s personal use and his other projects without the

investors’ knowledge. In fact, Lujan, the Securities Board examiner, testified that Lawrence

spent $50,000 of the first $90,000 that came to him for his own purposes. When considered

without the testimony of Knowles, Riddle, and Vanloon, the non-accomplice evidence

reasonably connects Lawrence to the offenses and corroborates the accomplice witness

testimony. We resolve Lawrence’s second issue against him.

                                               –22–
C. Was it Error to Allow the Expert Testimony of the Prosecutor’s Supervisor?

       Lawrence’s third issue asserts that the trial court erred in allowing Oman to testify as an

expert witness because he is employed by the same office as the special prosecutors in this case.

The essence of Lawrence’s complaint is that Oman should have been disqualified under the rule

of professional conduct that precludes an attorney from acting as an advocate and a witness in

the same proceeding. See Tex. Disciplinary Rules Prof’l Conduct 3.08. The State responds that

the issue has not been preserved for our review.

       To preserve a complaint for appellate review, a defendant must make a timely objection

to the trial court, state with sufficient specificity the grounds for the ruling sought, and obtain an

adverse ruling on his objection. TEX. R. APP. P. 33.1; Buchanan v. State, 207 S.W.3d 772, 775

(Tex. Crim. App. 2006).

       Lawrence concedes no objection was made at trial, but argues an objection was not

required because the issue involves structural error. Lawrence confuses the concept of “structural

error,” which has to do with harm analysis, with the concept of “systemic requirements,” which

have to do with preservation of error. See Mendez v. State, 138 S.W.3d 334, 339 (Tex. Crim.

App. 2004).

        “A ‘structural’ error affect[s] the framework within which the trial proceeds, rather than

simply an error in the trial process itself,’” and is not amenable to a harm analysis. Schmutz v.

State, 440 S.W.3d 29, 35 (Tex. Crim. App. 2014) (quoting Jordan v. State, 256 S.W.3d 286, 290

(Tex. Crim. App. 2008). All structural errors must be founded on a violation of a federal

constitutional right, but not all violations of federal constitutional rights amount to structural

errors. See United States v. Davila, 133 S.Ct. 2139, 2149 (2013); Arizona v. Fulminante, 499

U.S. 279, 306–08 (1991) (noting harmless-error analysis has been applied to a wide range of

[constitutional] errors and recognizing that most constitutional errors can be harmless).

                                                –23–
         In Davila, the court explained that structural error is a very limited class of errors that

trigger an automatic reversal. These errors include denial of counsel, denial of self-

representation, denial of a public trial, and the failure to convey to a jury that guilt must be

proved beyond a reasonable doubt. Id. A structural error is not subject to a harmless error test.

Mendez, 138 S.W.3d at 339.

         On the other hand, a systemic (or absolute) requirement is “a law that a trial court has a

duty to follow even if the parties wish otherwise.” See Mendez, 138 S.W.3d at 340. Systemic

requirements are not necessarily constitutional. Id. at 341. For example, jurisdiction, which is not

constitutional, is a systemic requirement. Id. A systemic requirement is distinguished from a

“waivable right” and a “forfeitable right.” Id. at 340. A waivable right is a right that must be

implemented by the system unless expressly waived. Id. A forfeitable right is a right that is to be

implemented upon request. Id. Rule 33.1 of the rules of appellate procedure (requiring an

objection in the trial court) applies to all complaints except those that involve rules that are

“waivable only” or “systemic” requirements. Mendez, 138 S.W.3d at 342; see also Landers v.

State, 402 S.W.3d 252, 255 (Tex. Crim. App. 2013).

          With regard to structural error, Lawrence fails to explain how the rules of professional

conduct rise to the level of a federal constitutional right,8 and we note that disqualification of an

attorney is not on the short list of errors that are recognized as structural. See Davila, 133 S.Ct. at

2149; see also Johnson v. U.S., 520 U.S. 461, 468–69 (1997). There is also nothing to suggest

that the rules of professional conduct are systemic requirements. Therefore, Lawrence forfeited

his complaint about disqualification when he failed to raise it in the court below. See TEX. R.

APP. P. 33.1; Mendez, 138 S.W.3d at 342. Lawrence’s third issue is overruled.

    8
       Although Lawrence argues that the rule “has obvious over-tones and implications with regard to the Sixth Amendment Right to
Confront,” Lawrence provides no authority to support the proposition that the alleged error is structural.




                                                             –24–
D. Was Lawrence’s Right to Confront Witnesses Violated?

        Lawrence’s fourth issue contends he was deprived of his Sixth Amendment right to

confront witnesses because he was not present for “at least two and possibly up to four”

depositions of the witnesses and there is no indication that he knowingly waived his right to be

present. Lawrence acknowledges that the depositions were properly ordered and applied for and

that notice was given to his counsel.

        The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI.

This procedural guarantee is applicable in both federal and state prosecutions, Pointer v. Texas,

380 U.S. 400, 406 (1965), and bars the admission of testimonial statements of a witness who

does not appear at trial unless the witness is unavailable to testify and the defendant had a prior

opportunity to cross-examine him. Crawford v. Washington, 541 U.S. 36, 59 (2004).

        A defendant always has the burden of raising a Confrontation Clause objection.

Melendez-Diaz v. Massachucetts, 557 U.S. 305, 327 (2009). The right of confrontation is thus a

right that is subject to the usual rules of procedural default. Anderson v. State, 301 S.W.3d 276,

280 (Tex. Crim. App. 2009). Here, Lawrence did not object to the depositions when they were

introduced at trial.

        Lawrence admits the record is silent as to the reasons for his failure to attend the

depositions, and he seems to suggest that there must be an affirmative waiver of the right of

confrontation on the record. But this court has held that the right of confrontation is a forfeitable

right—not a right that must be affirmatively waived. See Deener v. State, 214 S.W.3d 522, 527

(Tex. App.—Dallas 2006, pet. ref’d). As a result, the right must be preserved by a timely and

specific objection at trial. Id.




                                               –25–
       Lawrence further asserts that article 39.025(g) of the code of criminal procedure is

unconstitutional. See TEX. CODE CRIM. PROC. ANN. art. 39.025(g). Article 39.025(g) provides

that a defendant’s failure to attend a deposition or request a continuance constitutes a waiver of

the defendant’s right to be present at the deposition. Lawrence also raises this argument for the

first time on appeal. Because Lawrence failed to raise his Sixth Amendment or article 39

arguments in the trial court, the issue was not preserved for our review. See TEX. R. APP. P. 33.1.

Lawrence’s fourth issue is overruled.

E. Reformation of the Judgment.

       The State observes that the second page of the judgment in cause number 05-13-01138-

CR (engaging in organized criminal activity) improperly reflects that the sentence is executed

rather than suspended, and requests that we correct the judgment. An appellate court has the

power to correct and reform a judgment “to make the record speak the truth when it has the

necessary data and information to do so.” Asbury v. State, 813 S.W.2d 526, 529 (Tex. App.—

Dallas 1991, pet. ref’d).

        The record reflects that when the judge pronounced the sentence, the court assessed

punishment at ten years’ imprisonment and then stated, “[t]he imposition of the sentence is

suspended and the defendant is placed on community supervision for a period of 10 years.” The

first page of the judgment correctly recites that the sentence of confinement was suspended. The

second page does not. Because the judgment does not accurately reflect the sentence that was

pronounced, we reform the judgment in cause number 05-13-01138-CR to reflect that the

sentence was suspended. As reformed, we affirm the trial court’s judgment.




                                              –26–
                                        III. CONCLUSION

       Having resolved all of Lawrence’s issues against him, we reform the judgment in cause

number 05-13-01138-CR to reflect that the sentence was suspended. As reformed, we affirm the

trial court’s judgment. The judgment in cause number 05-13-01139-CR is also affirmed.




Do Not Publish
TEX. R. APP. P. 47
131138F.U05
                                                 /Bill Whitehill/
                                                 BILL WHITEHILL
                                                 JUSTICE




                                            –27–
                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

KENNETH PAUL LAWRENCE, Appellant                     On Appeal from the 380th Judicial District
                                                     Court, Collin County, Texas
No. 05-13-01138-CR          V.                       Trial Court Cause No. 380-80745-2011.
                                                     Opinion delivered by Justice Whitehill.
THE STATE OF TEXAS, Appellee                         Justices Francis and Lang-Miers
                                                     participating.

       Based on the Court’s opinion of this date, the judgment is reformed to reflect that the
sentence is suspended. As reformed, the judgment of the trial court is AFFIRMED.


Judgment entered April 2, 2015.




                                              –28–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

KENNETH PAUL LAWRENCE, Appellant                   On Appeal from the 380th Judicial District
                                                   Court, Collin County, Texas
No. 05-13-01139-CR        V.                       Trial Court Cause No. 380-80746-2011.
                                                   Opinion delivered by Justice Whitehill.
THE STATE OF TEXAS, Appellee                       Justices Francis and Lang-Miers
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered April 2, 2015.




                                            –29–
