An Odessa man who told jurors his dead twin brother was responsible for robbing a smoke shop nearly three years ago was convicted Tuesday of robbery by a jury that deliberated approximately an hour.
Although Ector County District Attorney Dusty Gallivan asked the jury to sentence Fredrick Calicutt, 36, to life in prison, the jury opted to sentence him to 15 years in prison and assessed a $5,000 fine. The lowest sentence he could have received was five years. The jury deliberated 30 minutes during the punishment phase.
In asking for the life sentence, Gallivan pointed to Calicutt’s life of crime. He’s got nine felony robbery, aggravated robbery and aggravated assault convictions and at least seven other similar charges were dismissed through the plea agreement process.
“He’s a thief and he’s a robber and apparently has been since he was 11-years-old,” Gallivan said.
The prosecutor said he was afraid that if Calicutt is set free earlier, he’ll hurt his future victims so they won’t be able to testify.
“I’m not willing to take that risk. Are you?” Gallivan said.
Calicutt did not offer an argument during the punishment phase of the trial, although he did tell jurors he was not convicted in 2005 of the five counts of aggravated robbery Gallivan used to enhance the sentence he was facing from 2-20 years in prison to life or 5-99 years.
Calicutt said he only pleaded guilty to one count of aggravated robbery and two counts of aggravated assault. The jury decided Gallivan successfully proved his point, but still opted for the lower sentence.
Gallivan told jurors during opening statements Monday he was going to put five witnesses on the stand to testify about the Jan. 6, 2020, robbery of a Smoker’s Oasis at Grandview Avenue and 26th Street.
However, Gallivan ended up putting on several other witnesses who testified Calicutt had also robbed them the same night after Calicutt himself inadvertently revealed during the cross-examination of the lead Odessa Police Department detective he was a suspect in the robberies of a DK, Kent Kwik and Subway in the same neighborhood.
The prosecutor also showed videos of all four robberies and each alleged victim testified Calicutt was the robber seen in the videos.
On Tuesday, Calicutt put three OPD detectives and officers back on the stand to reiterate the fact OPD did not have any fingerprints linking him to the robberies and that they never found a gun, despite all of the victims stating they thought he had one near his waistband.
Calicutt then took the stand himself. He told jurors his twin was responsible for all of the robberies and it was his twin who was arrested just hours after the robberies were committed. His brother, Vincent James, would have testified on his behalf, but he died of an overdose on June 13, 2021, Calicutt said.
During his testimony and during his closing argument, Calicutt told jurors he gave all three of the attorneys who have represented him the evidence needed to prove his brother committed the robberies, but he suggested at least two of those lawyers, Ector County District Court Judge Justin Low and Gallivan colluded to ensure they never saw the evidence.
He told jurors Low held him in contempt of court for refusing to stand down from him and for “looking him in the eye.”
Up until that point, jurors had no knowledge of that fact because they were out of the room when that happened. Earlier Tuesday morning Low berated Calicutt for making snide comments suggesting he was impartial and glaring at him despite being warned he was about to be held in contempt of court and given more jail time.
While Gallivan proved his extensive criminal history by using his fingerprints, Calicutt said Gallivan didn’t show the jurors fingerprints taken at the jail because that would’ve proven the man arrested the night of the robberies was his brother.
“He don’t want to present that because that’s a lawsuit,” Calicutt said.
Once his mother died last month and could no longer testify about his twin, Calicutt said Gallivan suddenly pushed for the trial to move forward despite a nearly three-year delay.
Calicutt said Gallivan was forced to take him to trial because he couldn’t suffer the political fall-out of dismissing the case.
“He thought he had a slam dunk, but when he realized it wasn’t an alley-oop, he couldn’t tuck tail and run,” Calicutt said.
Calicutt told jurors he was basically being forced to perform the equivalent of “open heart surgery to save” his own life. He told the jury it could be them in his position, or their brother or mother.
During his closing argument, Calicutt said “My past is dirty, but my future is spotless, but he don’t want you to see that though.”
He told jurors people can get Botox and breast implants to change their appearance, but they can’t change their fingerprints.
If he were guilty and so frightening, Calicutt asked the jury why it took so long to take him to trial. If they had a cockroach in their kitchen, they wouldn’t allow it to reproduce over three years, he told the jury.
“The main thing make me guilty is my past,” Calicutt said.
During his closing argument, Gallivan reminded jurors an investigator testified he ran Calicutt’s alleged twin’s name and date of birth through the National Crime Information Center database and did not get any hits even though Calicutt testified they both have extensive criminal histories. NCIC is a national database containing arrestees’ criminal histories.
“The only evidence you have that Mr. Calicutt has a twin is him saying so,” Gallivan said, noting Calicutt could have presented witnesses verifying the twin’s existence.
Calicutt’s wife attended the entire trial and a brother and sister-in-law were present for a portion of Tuesday’s testimony.
Gallivan also pointed out Gallivan acknowledged from the stand that he bonded out of jail and was later arrested on a failure to appear warrant in connection with the case.
“Wouldn’t it have been his brother who bonded out of jail?” Gallivan asked.
Gallivan said his office files 5,000 cases a year and he doesn’t have time to doctor evidence.
The prosecutor reminded jurors he told them from the beginning he didn’t have fingerprint evidence or the gun. He also reminded them an expert witnesses said only 5% of cases result in prints good enough for comparison purposes.
Gallivan pointed out, however, he did have plenty of videos showing Calicutt committing the robbery with what appeared to be a gun in his pocket or waistband.
In order to convict Calicutt, Gallivan said the law says the jury has to find the victim of the Smoker’s Oasis believed they were in imminent danger of bodily injury or death.
“Whether he had a gun or not is irrelevant. It was her perception,” Gallivan said.
Calicutt will have to serve at least one fourth of his sentence before becoming eligible for parole. He’ll also be eligible for good conduct credit.
Gallivan said he fully intends to move forward with the cases involving the other three robberies Calicutt is accused of committing.
