Opinion issued September 1, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00026-CR
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KERRY BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1356491
MEMORANDUM OPINION
A jury convicted appellant Kerry Brown of murder, and the trial court
assessed punishment at 40 years in prison. See TEX. PENAL CODE § 19.02. On
appeal, Brown challenges the sufficiency of the evidence and allegedly improper
statements made by the prosecutor during closing argument.
We affirm.
Background
On July 25, 2012, complainant Claude Kibbie drove his blue Ford Taurus to
the Crofton Place apartment complex where Darrell Lazard lived. Lazard
sometimes did mechanic work for neighbors, and Kibbie sought his help. That
evening, appellant Kerry Brown was seen in the area with his codefendant at trial,
Larry Solomon. Several witnesses saw Brown circling the apartment complex,
walking “back and forth,” “watching out,” and stopping to talk to Solomon after
each pass around the buildings. Both men were seen repeatedly peering toward
Kibbie. A witness saw the handle of a gun that was tucked into Brown’s clothing.
At one point, Solomon told Brown, “We got to get him today,” and Brown nodded
in response. Later Brown spent approximately 30 minutes speaking with Kibbie
while they sat in the Taurus.
Around 10:00 p.m., Brown was standing near the passenger side of the
Taurus when Kibbie backed up the car and then began to drive it forward. Brown
ran alongside, pointing a gun at Kibbie. Solomon also chased the car, and he fired
multiple gunshots, one of which struck Kibbie in the head. Kibbie’s car crashed
into an apartment building, and he later died from the gunshot wound. Solomon
and Brown fled the scene.
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Police responded, and Sergeant E. Cisneros began an investigation. Based on
anonymous tips, interviews with witnesses, and positive identifications from
photographic lineups, Sgt. Cisneros identified Solomon and Brown as suspects in
the murder.
Solomon and Brown were arrested, charged with murder, and tried together.
At trial, several neighbors testified about what they witnessed that night. Brown
presented three alibi witnesses, but cross-examination revealed inconsistencies in
their testimony. In its closing statement, the State argued that Kibbie and Brown
struggled over Brown’s gun, which fell apart as evidenced by broken pieces of a
gun recovered from Kibbe’s vehicle. Solomon’s attorney objected that this
argument was not supported by the evidence, but Brown made no objection.
Because there was eyewitness testimony that Solomon shot Kibbie, the jury charge
as to Brown included instructions on the law of parties. The jury found Brown
guilty of murder, and he appealed.
Analysis
Brown raises two issues on appeal. First he challenges the sufficiency of the
evidence to support the jury’s verdict. Second he argues that the State’s improper
jury arguments require reversal.
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I. Sufficiency of the evidence
When evaluating an evidentiary-sufficiency challenge, we consider all of the
evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). The
standard is the same for both direct and circumstantial evidence cases. Carrizales
v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013); King v. State, 895 S.W.2d
701, 703 (Tex. Crim. App. 1995).
We do not resolve any conflict of fact, weigh any evidence, or evaluate the
credibility of any witnesses, as this is the function of the trier of fact. See Adames
v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). We presume that the
factfinder resolved any conflicting inferences in favor of the verdict, and we defer
to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). On appeal we may not re-evaluate
the weight and credibility of the record evidence and thereby substitute our own
judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex.
Crim. App. 2007). In reviewing the evidence, circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and circumstantial
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evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007).
The Penal Code provides that a person commits murder if he “intentionally
or knowingly causes the death of an individual” or “intends to cause serious bodily
injury and commits an act clearly dangerous to human life that causes the death of
an individual.” TEX. PENAL CODE § 19.02(b)(1) & (2). A person may be guilty as a
party to an offense committed by another if, acting with intent to promote or assist
the commission of the offense, he solicits, encourages, directs, aids, or attempts to
aid the other person to commit the offense. See id. § 7.02(a)(2). In determining
whether one has acted as a party in the commission of a criminal offense, the court
may look to events occurring before, during, and after the commission of the
offense. Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).
“Circumstantial evidence alone may be used to prove that a person is a party to an
offense.” Id. at 506. “Participation in an enterprise may be inferred from the
circumstances and need not be shown by direct evidence.” Beardsley v. State, 738
S.W.2d 681, 684 (Tex. Crim. App. 1987). Mere presence of the defendant at the
scene is not sufficient to support a conviction; however it may suffice to show that
the defendant was a participant when combined with other facts. See Powell, 194
S.W.3d at 507–08; Beardsley, 738 S.W.2d at 685.
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Brown argues that there is no evidence that he was a party to the crime. In
particular he argues that there was no evidence that he served as a lookout or
otherwise cooperated with Solomon, the shooter.
Three witnesses testified about Brown’s behavior that evening. A jury could
infer from that testimony that Brown aided in the commission of the offense by
acting as a lookout. Sheteria Williams was sitting in her car in the parking lot on
the evening of the shooting. She saw Solomon and Brown standing together near
one of the apartment buildings. Williams did not know the men, and she did not
know their names at the time of the shooting, but she later identified both men
from photographic lineups and in open court. She testified about a shorter, darker-
skinned man, whom she identified as Solomon, and a taller, lighter-skinned man,
whom she identified as Brown. Williams testified that she saw Brown walking
back and forth around the area, repeatedly circling the buildings. A second witness,
Petrina Branch, was also sitting in Williams’s car immediately prior to the
shooting. She testified that she saw the two men described by Williams and that
they were “hiding,” “peeking” around the buildings, and “looking around the
corner.” Finally, Margie Hubbard, a self-proclaimed “nosy” neighbor, had known
Solomon for several years. She also recognized Brown. Before the shooting, she
saw Solomon and Brown “running back and forth and talking,” and looking toward
Kibbie’s car.
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All three witnesses—Williams, Branch, and Hubbard—testified that the
behavior of Solomon and Brown was suspicious. Williams found it particularly
suspicious because she had seen Brown sit in Kibbie’s car with him for
approximately 30 minutes earlier that evening. Branch testified that she had a
feeling the two men were “up to something.” Hubbard, who had been watching
from her apartment window, described the men’s behavior as “very suspicious.” In
addition to being suspicious of their actions, Williams was also suspicious because
she overheard Solomon tell Brown, “We got to get him today,” and she saw Brown
nod in response. Similarly, Hubbard testified that she heard “them” saying, “We’re
going to get him,” and “It’s going to be on.”
The State also introduced evidence that Brown had a gun. Branch testified
that she saw the handle of a gun tucked into the clothing of the taller man, who was
later identified as Brown. Lakresha Burnett testified that she was retrieving a bag
from her car when she saw a man who was standing on the passenger side of the
blue Taurus pull out a gun and run alongside the car. Although Burnett did not
positively identify Brown, she described the man she saw as taller and having
lighter skin than the shooter, which was consistent with the other witnesses’
descriptions of Brown.
The evidence showed that Brown repeatedly walked around the buildings,
stopping to talk to Solomon and peer at Kibbie. From this evidence, a jury could
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infer that he was keeping a lookout of the entire area. The evidence also shows that
while watching Kibbie, the two men talked about their plan to “get him.” In
addition, the evidence showed that Brown had a gun and pointed it at Kibbie as he
attempted to leave the parking lot. Finally, the evidence showed that Brown fled
the apartment complex. Considering this evidence together, the jury could have
concluded that Brown was more than merely present: he aided or participated in
the crime. See Beardsley, 738 S.W.2d at 684–85.
Brown argues that Williams had “serious credibility issues.” However, the
determination of the witnesses’ credibility and the resolution of inconsistencies in
testimony are committed to the jury, and on appeal we may not substitute our
judgment for that of the factfinder. See Williams, 235 S.W.3d at 750.
Finally, Brown challenges the relevance and sufficiency of evidence that he
struggled with Kibbie over a gun. He concedes that the State recovered parts of a
broken gun from Kibbie’s car, but he argues that none of the parts of the gun were
connected to him by DNA or fingerprint evidence and such speculation could not
form the basis of his conviction. Although the State may have argued this theory to
the jury, it comprised no part of the elements of the offense that the State was
required to prove. As we have explained, a rational jury could have concluded that
Brown aided or participated in the offense committed by Solomon by keeping
watch while repeatedly walking around the apartment complex, agreeing to “get
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him,” and carrying and brandishing a gun. Thus, we hold that, without regard to
evidence pertaining to broken gun parts, the evidence was legally sufficient to
support the jury’s verdict. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Merritt,
368 S.W.3d at 525.
We overrule Brown’s first issue.
II. Jury argument
In his second issue, Brown argues that the State’s improper jury argument
warrants reversal. First he argues that the prosecutor argued about facts that were
not in evidence, specifically that Kibbie and Brown struggled over a gun that fell
apart and that Brown served as a lookout and “set-up” for Kibbie. Next, he argues
that the prosecutor abused his position of authority by insinuating that the State had
special knowledge of the facts of the case. Finally, he argues that the prosecutor
improperly appealed to the jurors’ sense of civic duty, which he contends implied
that the community was expecting a certain verdict or punishment.
“A defendant’s failure to object to a jury argument or a defendant’s failure to
pursue to an adverse ruling his objection to a jury argument forfeits his right to
complain about the argument on appeal.” Cockrell v. State, 933 S.W.2d 73, 89
(Tex. Crim. App. 1996); see TEX. R. APP. P. 33.1(a). A defendant is generally
unable to rely on an objection made by a co-defendant’s counsel, without voicing
his own objection. Martinez v. State, 833 S.W.2d 188, 191 (Tex. App.—Dallas
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1992, pet. ref’d) (citing Lerma v. State, 679 S.W.2d 488, 498 (Tex. Crim. App.
1982)). “A co-defendant may adopt the objection of his fellow defendant, but that
adoption must be reflected in the record.” Enlow v. State, 46 S.W.3d 340, 346
(Tex. App.—Texarkana 2001, pet. ref’d); see also McGowan v. State, 938 S.W.2d
732, 736 (Tex. App.—Houston [14th Dist.] 1996), aff’d sub nom. Weightman v.
State, 975 S.W.2d 621 (Tex. Crim. App. 1998); Brooks v. State, No. 01-04-00092-
CR, 2005 WL 327192, at *11 (Tex. App.—Houston [1st Dist.] Feb. 10, 2005, pet.
struck) (“A co-defendant who does not voice her own objection at trial has not
preserved error.”).
Brown made no objection to the prosecutor’s arguments that he challenges
on appeal. While defense counsel for Solomon objected that the State was relying
on facts not in evidence, Brown and his trial counsel were silent during the
objections made by Solomon’s attorney. We therefore hold that Brown failed to
preserve any objection to the State’s jury argument. See Valencia v. State, 946
S.W.2d 81, 82–83 (Tex. Crim. App. 1997) (holding that court of appeals correctly
found waiver when appellant made no objection at trial to State’s allegedly
improper jury argument); Cockrell, 933 S.W.2d at 89 (holding that “a defendant’s
‘right’ not to be subjected to incurable erroneous jury arguments . . . is forfeited by
a failure to insist upon it”).
We overrule Brown’s second issue.
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Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Keyes, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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