Calvert v. State
| Decision Date | 09 October 2019 |
| Docket Number | NO. AP-77,063,AP-77,063 |
| Parties | JAMES CALVERT, Appellant v. THE STATE OF TEXAS |
| Court | Texas Court of Criminal Appeals |
ON DIRECT APPEAL FROM CAUSE NO. 241-1467-12 IN THE 241ST DISTRICT COURT SMITH COUNTY
OPINION
In October 2015, a jury convicted Appellant of murder in the course of committing or attempting to commit burglary or kidnapping.1 Based upon the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial judge sentenced Appellant to death.2 Direct appeal to this Court isautomatic.3 After reviewing Appellant's twenty-nine points of error, we find them to be without merit. Consequently, we affirm the trial court's judgment and sentence of death.
While visiting Croatia, Appellant met the victim, Jelena. She accompanied him on his return to Tyler, and they married in 2004. Jelena became increasingly fearful of Appellant over the course of their marriage.
Appellant and Jelena's first child, E.C., was born in 2006. Their second child, L.C., was born in 2008. Appellant and Jelena separated in 2009 and divorced in 2010. Jelena obtained a restraining order that barred Appellant from going to her new home. According to their divorce decree, Jelena had primary possession of the children. She could not move with the children more than 125 miles from the Smith County Courthouse. Appellant had visitation rights on alternate weekends and Thursdays. The order specified that Jelena and Appellant would exchange the children at Jason's Deli.
In January 2012, Jelena married Arvind Sriraman. Jelena wanted to move with the children to Houston, where Sriraman had taken an engineering job, but Appellant refused to agree to modify the terms of the child custody order. He was also uncooperative during mediation. Eventually, Jelena and Sriraman took the matter to trial. On October 19, 2012, a jury determined that the custody order should be modified so that Jelena and the children could move up to 500 miles away from the Smith County Courthouse.
About twelve days later, on October 31st, Jelena was packing to move to Houston. L.C., age four, was home with her. E.C., age seven, was at school. Although Appellant did not have visitation that day, Jelena had agreed that Appellant could take the children to dinner and then trick-or-treating.
Shortly before the scheduled visit, Appellant told Jelena that they needed to exchange the children at her house instead of the deli. Jelena did not know it but Appellant had been avoiding service of a motion by Deidre Adams, his first wife. Adams and Appellant had a child together, J.C., and Adams had filed a motion to enforce court-ordered child support. Appellant suspected that Adams was planning to serve him with that motion at the deli. Jelena would not agree to exchange the children at her house. Appellant angrily canceled the visit. Jelena was upset about this incident, which she relayed to multiple friends.
Less than three hours later, Appellant broke into Jelena's house and, in front of L.C., shot her multiple times. Appellant took L.C. and fled to Louisiana. That evening, following a high-speed chase in West Monroe, Louisiana, police officers arrested Appellant and discovered L.C. physically unharmed in the back seat of Appellant's car.
Appellant was indicted for capital murder. Counsel (Jeffery Haas and Jason Cassel) were appointed to represent him. However, in February 2014, Appellant requested and was granted the right to represent himself. He represented himself through approximately fifty pretrial hearings, voir dire, and roughly three weeks of the jury trial. Appellant's attorneys, in standby status, were present and available to assist him. On September 15, 2015, during the guilt phase, the trial court revoked Appellant's pro se status and reinstated counsel to represent him.
At trial, Shonda Emmert testified that she was in the parking lot across the street from Jelena's house around noon on the day of the offense. She heard, "[B]ang, bang, bang," which she initially thought was a nail gun "going off." About a minute later she saw a man walking out of the house, carrying a small child wrapped in a blue blanket. He went to a car parked down the street, put the child in the back seat of the car, and drove away.
Emmert drove to the house to see if things were okay. Another woman, Robin Dickerson, pulled up at the same time, ran into the carport, and screamed at Emmert to call 911. Emmert walked toward the house to get a better look at the house number. She saw a body in the carport; the door between the kitchen and carport was "splintered" and looked like it had been kicked in. When the prosecutor showed Emmert photographs of L.C., Appellant, and Appellant's car, she stated that the photos were consistent with the appearance of the child, the man, and the car she saw on the day of the offense.
Dickerson testified that she worked at the same church as Jelena. On the day of the offense, around noon, she was in a parking lot near Jelena's house when she heard four or five shots. She looked toward Jelena's house and saw a man carrying a child from the carport to a car parked on the street. The man got into the car and left. Dickerson believed that the child she saw was L.C. and the man, Appellant. Dickerson drove up, walked into the carport and saw Jelena lying in the doorway, dead. When Emmert drove up, Dickerson told her,
Tyler Police Detective Craig Shine, the lead detective in this case, responded to the 911 call. He testified that it was apparent from the number and locations of Jelena's gunshot wounds that the shooter knew her and wanted her dead. Based on his observations and interviews at the crime scene, Shine obtained a capital murder warrant for Appellant. The Tyler Police Department broadcasted a BOLO ("be on the lookout") Alert and an Amber Alert.
Texas Ranger Brent Davis testified that he went to the crime scene and saw numerous cartridge casings on the kitchen floor. All of the casings were from a .40-caliber semi-automatic pistol and were marked ".40 S&W." From the location of the casings, it appeared that the rounds were fired at Jelena from inside the house. Davis observed bullet strikes on the door, the door frame, the car, and the concrete floor of the carport. It appeared that the door between the kitchen and the carport had been kicked in; the strike plate and pieces of wood from the door frame were on the floor. The door was standing open. Tyler police officers advised Davis that L.C. was missing and that they believed he had been kidnapped. It appeared to Davis that Jelena had been trying to leave the house to escape from the shooter when she was shot multiple times.
Dr. Elizabeth Ventura, a medical examiner at the Southwestern Institute of Forensic Sciences, conducted the autopsy. She testified that Jelena was intentionally killed. Specifically, Jelena sustained six gunshot wounds, five of which damaged vital organs in her head and torso. The number, direction, and location of the gunshot wounds indicated that Jelena was changing her position in relation to the gun when she was shot. The fact that she had sustained several fatal shots while moving around was evidence of an intentional killing in which the shooter wanted her dead. Ventura said that it was likely, but not certain, that the fatal shot to Jelena's head was the last shot.
Howard Ryan, a forensic investigation consultant and crime scene reconstructionist, testified about the bloodstain evidence at the crime scene. He noted that a contact transfer stain on the carport door indicated that Jelena was shot in the back while she was upright, and then she slid down the door. After she was seated and leaning against the door, she was shot through the abdomen. Another shot through her arm and side caused her to fall onto the door mat in the carport. Finally, Jelena sustained a shot to the back of the head while her head was face down and several inches off the carport floor. A spent shell casing in the carport indicated that the shooter was likely standing over her when he fired that shot. Ryan averred that this pattern indicated that the shooter was proficient, in control, and "not frantic" while he was shooting.
Tim McLemee, an expert in forensic digital data and media, discussed a data report showing the WiFi connections that Appellant's iPad had made on the day of the offense, starting at 1:32 p.m. and ending at 9:46 p.m. These connections started in Tyler, Texas, and ended near West Monroe in Ruston, Louisiana. Appellant's iPad had connected to WiFi networks in several McDonald's restaurants along the route. Most of the searches on the iPad were for news stories about the instant offense and Amber Alerts.4
West Monroe Police Officer Raymond Spoon testified that he had volunteered to "take a call" before his shift started on the evening of the day of the offense. As a result, he was not in the police station when officers were briefed on the alerts from Tyler, Texas, and was unaware of those alerts when he first encountered Appellant.
Spoon was parked on the grassy median of the highway, "working drug interdiction," when Appellant's vehicle passed him at 11:05 p.m. Spoon began following the vehicle after he saw "some indicators" that it might be transporting drugs.5 Upon observing a traffic violation, Spoon activated his lights and attempted to stop the vehicle. Initially, Appellant pulled over and stopped, but as Spoon exited his patrol car, Appellant drove away. Appellant thereafter passed three parking lot entrances where he could have pulled in and stopped safely. He drove slowly and then stopped a second time. After Spoon exited the patrol car and ordered Appellant out of his vehicle, Appellant drove away again. Concerned that this pattern of stopping and starting was consistent with "baiting" and ambushing a police officer,Spoon...
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